September 2011 Archives
Jimmy Dimora needs to read this. There are a lot of important decisions to make in life, but for a criminal defendant, there are few more important than whether to plead or go to trial. Having a felony conviction is certainly not going to enhance your job prospects, but the consequences of a having that conviction result from a guilty verdict after trial are heightened by the probability that your job prospects in that event are going to be limited to making license plates for some substantial period. Four years ago, I wrote a post about the "trial tax," citing research which showed that defendants who went to trial received sentences about three times as high as those who pled. Doc Berman over at Sentencing Law & Policy emphasized the point the other day by noting a story about two men who got 60 and 45 years in prison in a stock-swindling scheme. No sympathy from this quarter: many of the victims, mostly elderly, lost their life savings, and in my book trying to cheat elderly people is maybe one rung up from child molesting. What's notable, though, is that those two went to trial; others involved in the scheme pled, and got substantially less time. Including the former president of the company which ran the scheme, who wound up with five years.
Here in Cuyahoga County, we're at two years plus of the prosecutions for the corruption scandal in county government. One of the main targets of the investigation, Jimmy Dimora, is scheduled to go to trial in January. The other main target, former county auditor Frank Russo, pled guilty a little over a year ago, and received a 22-year sentence. That's a lot of time for a guilty plea, you say, and you're right; Russo, though, had refused to cooperate with Federal investigators. Since then, he's had a change of heart, and is testifying against various other defendants. When the case is over -- and Russo is slated to testify against his former buddy Dimora -- Russo will be resentenced. In the meantime, he's yet to report to prison.
That wasn't an option given to former Common Pleas Judge Bridget McCafferty. At Dimora's request, she set up a pretrial to try to get a settlement in a case involving one of Dimora's cronies. She didn't do much good -- on the wiretaps, she can be heard apologizing to Dimora for not settling the case as low as Dimora had wanted -- but when the FBI came to her door at 8 in the morning and started asking her questions about it, she denied it. She was charged with lying to the Feds, and went to trial. She lost, and although the guidelines made her eligible for probation, the judge made an upward departure and gave her fourteen months. Last month, she denied McCafferty's request to further delay going to prison.
There's another aspect to this, though, as noted in this New York Times article from last week. Because of the passage of mandatory minimum sentences and other laws which substantially increase criminal penalties, prosecutors now have extra leverage in securing a plea. The article highlights the case of Shane Guthrie, who was accused of beating his girlfriend and threatening her with a knife. After he refused a plea offer which would have entailed a two-year prison sentence, and then another one for five years, the prosecutor upped the ante by filing charges which would result in Guthrie's serving life imprisonment if he's convicted.
That's a major reason for the decline in criminal trials. In the 1970's, about one case in twelve went to trial in Federal court. Now, it's fewer than one in forty. The same effect is found in state courts. As the article relates,
The first thing Denis deVlaming, a prominent Florida criminal defense lawyer, does with a new client is pull out a calculator to tally all the additional punishments the prosecutor can add to figure the likely sentence if the client is convicted at trial.
"They think I'm ready to charge them a fee, but I'm not," he said. "I tell them in Florida, it's justice by mathematics."
Well, here's an idea if the red-light cameras don't work. Albany, Georgia, recently enacted a ban on baggy/saggy pants, with fines of up to $200 for repeat offenders, and, as this article notes (h/t to LegalBlogWatch), it's resulted in swelling the city coffers by a cool $4,000. Based upon my own observations in the Justice Center (and yes, I would like to know the thought process by which one concludes, "I should have my underwear showing when I'm being sentenced today"), I think a similar ordinance in Cleveland would allow the city to balance its budget.
See you on Monday, and I'll have my pants pulled up all the way.
It's funny. I've spent the last several years proclaiming that the 8th District is the most 4th-Amendment friendly court in the state. I've also mentioned that while the 2nd District consistently turns out some of the best appellate opinions in the state, it's weak on search and seizure issues. So what happens? One of the judges from the 8th sits in the 2nd by assignment, and provides the deciding vote (and writes the opinion) in a case upholding a protective sweep. That case, State v. Young, and the
6th 9th District's decision in State v. Milton, were two on that subject last week.
You're representing a defendant who was involved in a bar fight that went seriously bad. Some punches were thrown, and the next thing you know the loser was on the floor and about four or five guys were stomping the hell out him. A fractured skull, five days in a coma, and he doesn't come out the other side, so now your client's looking at a murder charge. Your investigator has gotten a detailed statement from one of the witnesses, and he tells you he has good news and bad news.
"What's the bad news?" you ask, being a glass-half-empty kind of guy.
"Your boy definitely threw the first punch. And the second. The third, too, which is when the victim goes to the floor."
"And the good news?"
"He left right after that. Didn't hang around for the stomping."
So here's the question: do you turn that statement over the prosecution?
As I mentioned on Friday, there are few things more discouraging if you're doing an appeal than completing your review of a lengthy trial transcript and realizing that the judge ran a clean trial. Oh, sure, you always have manifest weight and sufficiency issues, but if patriotism is the last refuge of the scoundrel, those are the last refuge of the appellate attorney. You can count on the fingers of one hand the times that's been successful.
Well, get another hand, because last week the 8th reversed no fewer than five cases for insufficiency or manifest weight.
This is what it has come to. I can't write about any decisions from the US or Ohio Supreme Court, because the former hasn't begun its term yet, and the latter is producing little of consequence at the moment. I can't write about oral arguments, because nobody's having any until next month. So, for lack of anything else to write about, I find myself scouring SCOTUSblog's list of "Petitions to Watch," that is, petitions for certiorari that the Court will take up in their first conference of the term today.
What I have learned is that SCOTUSblog's interests do not invariably coincide with my own; among the petitions they find worth watching is the one in Nucor Corp. v. United States, which presents the following issue:
Whether the Tariff Act of 1930 - which defines "dumping" as "the sale or likely sale of goods at less than fair value" and "dumping margin" as "the amount by which the normal value exceeds the export price or constructed export price of the subject merchandise" - unambiguously excludes above-fair-value sales ( i.e., those sales that do not constitute "dumping") from the statutory formula for "weighted average dumping margin."
If at some future point in time you read more about this case here, please contact the police, because it means I've been kidnapped, and someone else has taken over this blog.
Oral arguments will begin in the US Supreme Court next week, and will resume then in the Ohio Supreme Court too. Time enough to talk about it when it actually happens. For now, on to the courts of appeals...
You know the routine:
PROSECUTOR: When you responded to the scene of the domestic disturbance, what did you do, officer?
WITNESS: I was told by dispatch that the next-door neighbor, Ms. Smith, had witnessed the altercation, so I talked to her.
PROSECUTOR: And what did she tell you?
DEFENSE ATTORNEY: Objection!
PROSECUTOR: It's not being offered for its truth, but only to explain why the officer did what he did afterwards, your honor.
It happens about every day in a courtroom somewhere. And that's why, if you try criminal cases, you absolutely have to have a copy of the 6th District's decision last week in State v. Richcreek when you walk into the courtroom. It's hands-down the best, most thorough decision on hearsay I've come across in the 5½ years I've been doing this blog.
Yesterday we talked about the 8th District's decision in State v. Jefferson, in which the defendant had been convicted of several burglaries on the basis of evidence that had been acquired after the police planted a GPS device on his car and tracked his movements. The court held that Jeffersons's attorney had rendered ineffective assistance by failing to file a motion to suppress the search. As I mentioned, the issue is before the US Supreme Court in US v. Jones, scheduled to be argued around Thanksgiving, so I figured it was a good time to take a look at that case.
Back in 1983, in US v. Knotts, the Supreme Court upheld a search in which the police had put a beeper inside a five-gallon drum of a chemical used to manufacture illegal drugs, and then used it to track the movement of the drum to a cabin, where a search warrant revealed a drug laboratory. The defendant argued that upholding the search would lead to the result that "twenty-four hour surveillance of any citizen of this country will be possible, without judicial knowledge or supervision," but the Court rejected this: "if such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable."
For Kenneth Jefferson, that time has come.
The prosecutor stands up and says, "We'd like to thank and excuse Juror No. 8, Ms. Johnson." Johnson starts to gather her things to leave, but the trial judge stops her. "Can I see counsel at the sidebar?" The lawyers approach, and the judge tells the prosecutor, "That's the third peremptory you've used against a black juror. I'd like to know the reason for wanting to remove her."
The prosecutor says something about the juror appearing disinterested, but the judge isn't buying it. "I watched the juror, and she didn't seem disinterested to me. I don't think you have a valid reason for removing her, so I'm not going to let you do it."
That's what happened in a Cuyahoga County courtroom about a year ago. Except that it was a white juror, it was the defense that was trying to remove her, and last week the 8th District affirmed it in State v. Davenport.
The US Supreme Court justices have their first conference of the term this weekend, where they'll decide what cases they'll want to hear, in addition to the 42 in which they've already granted cert; that's about half the number of cases they decided last year. In Columbus, only one decision, Dohme v. Eurand America. Dohme was employed as the facilities administrator for Eurand, and his duties included maintaining the plant's fire-protection system. Prior to the arrival of an insurance adjuster, Eurand instructed everyone that only certain employees were to have contact with the adjuster. Dohme wasn't on the approved list, but talked to him anyway, suggesting he look into what Dohme believed was the disappearance of an internal monthly report on overdue fire-alarm inspections. Dohme was fired for insubordination, and sued, claiming his discharge violated public policy. The trial court tossed it on summary judgment, the court of appeals reversed, but the Supreme Court reversed that and reinstated the trial court's ruling. One of the elements of a public policy wrongful discharge case is called the "clarity" element, that there be a clear public policy against firing people for that reason. The court decides that the clarity element needs added clarity, and so clarifies it thusly:
To satisfy the clarity element of a claim of wrongful discharge in violation of public policy, a terminated employee must articulate a clear public policy by citation to specific provisions in the federal or state constitution, federal or state statutes, administrative rules and regulations, or common law.
So, when the legislature or some agency gets around to enacting a statute or regulation prohibiting the immolation of employees, people like Dohme can speak their mind. Not until then, though.
Here, we have a clear public policy of reviewing the criminal decisions of the Ohio courts of appeals, so let's get to that...
No Briefcase tomorrow; I've got a big brief due, and it's one of those "if it weren't for the last minute, I'd never get anything done" routines. Today I thought I'd take a stroll through some recent decisions from the 6th. Circuit, not district. I tend to neglect Federal decisions (other than SCOTUS) here, but I'm going to partially atone for that today.
A man's home may be his castle, but a used car dealership is not. Just as we might have expected.
At least, that's the ruling of the 2nd District in State v. El-Hardan, the latest case on RC 2901.05(B), Ohio's freshly minted -- well, if you consider 2008 fresh -- expansion of self-defense.
In doing this blog, I read a lot of cases. The downside to that is, I read a lot of cases. The upside is that every now and then I'll come across an opinion which contains a line like this: "The victim recalled seeing Holsey’s penis before she lost consciousness."
Well, who among us hasn't experienced something like that, right?
SCOTUS may still be three weeks away from oral argument, but that doesn't mean the court's closed for business. The justices will have their first conference two weeks from today, and one of the petitions they'll be looking at is US v. Krieger. One of the new It Drugs is fentanyl patches, normally applied to the skin for pain management; druggies either chew them or inject them, which can have calamitous effects. Jennifer Curry found that out when she died after chewing one that her friend Jenny Krieger had sold her. Initially, Krieger was indicted for distribution of drugs with death resulting, but after the government's key witness, a doctor, fled the country because he had his own troubles, including giving a patient he slept with prescriptions for narcotics, the grand jury issued a superseding indictment dropping the "death resulting" language. The government nonetheless argued that the death did result, thus triggering a mandatory minimum sentence of 20 years. The trial court agreed, finding that the government had shown by a preponderance of the evidence that Krieger's actions caused Curry's death, although it would not have found this beyond a reasonable doubt. The 7th Circuit affirmed, discussing at length the difference between elements and sentencing factors, and the Supreme Court could decide that the case is the appropriate vehicle to re-examine the Apprendi/Blakely line. More on that later, depending on what happens.
Down in Columbus, the only decision of note was BWC v. McKinley. Back in the Golden Days of plaintiff's tort litigation, if your client happened to be on the job when she had the accident giving rise to a personal injury claim, you'd hit the perfecta: she could collect under workers comp and still get paid in full by the tortfeasor's insurance company. The legislature put an end to this back in 1995, allowing the Bureau to be subrogated to any payments received by a claimant from a third party. In McKinley, the court holds that sloth in pursuing that subrogation interest has its penalty: the state is subject to the same 6-year statute of limitations as anyone else would be in that situation.
Nothing else, and no oral arguments in any criminal cases scheduled until October, so let's head over to the courts of appeals...
One thing that's kind of surprised me is how few 4th Amendment cases the Supreme Court has decided in the last few years. After watching the oral argument on Wednesday in State v. Gould, I've decided that may be a good thing.
They're quite common in child molestation cases: an indictment which contains, say, nineteen counts of rape, each count worded identically, and each giving the date of offense as "8/1/2006 to 9/1/2008." It's what's known as a "carbon copy" or "copy-cat" indictment. There's an obvious problem with that from a defense perspective: how can you prepare for a trial in which your client essentially stands accused of committing an offense nineteen times sometime during a period of 731 days? There's also a problem from a purely legal perspective: if a jury hangs or acquits on certain counts, and convicts on others, how do you tell which counts they did what on?
Yesterday, in State v. Freeman, the Supreme Court heard oral argument in an attempt to sort through all that.
I've often wondered if members of the criminal bar shouldn't call themselves "plea lawyers" or "sentencing lawyers" instead of "trial lawyers." The fact is we do ten pleas for every trial, and for that reason, the sentencing is the most significant event in a criminal case. And yet lawyers who will prepare for trial by poring over police reports and witness statements, making outlines of cross-examinations of key witnesses, spending hours deciding on a theory of the case and figuring out how to develop that from voir dire through closing argument, will walk into a plea or sentencing hearing with only some vague idea of pitching the judge on their client's "poor judgment" and hoping for the best. And sometimes, we don't even read the law before we go in there.
That, apparently, is what happened to Roselio Gonzalez.
Just a month from now, the Supreme Court begins oral arguments for the 2011 Term. I can only imagine your excitement. One of the first ones will be a capital case, Maples v. Thomas. The nominal issue is the habeas law concepts of procedural default; the real issue is whether a man should be put to death because his attorneys blew an appeal deadline. A case the next day, Golan v. Holder, presents the issue of copyright law, including whether Section 514 of the Uruguay Round Agreements Act violate the First Amendment of the United States Constitution. You can guess which one I'll be writing about.
The Robed Ones in Columbus get the jump on their Federal counterparts; after the summer hiatus, oral argument begins in Columbus this week. The lead case, State v. Freeman, involves the "carbon copy" indictments common in child molestation cases. There's an abundance of case law on this from the districts, and I've blogged about it on numerous occasions (here and here, among others), but this is the first time the Supreme Court's going to address the issue. I'll have a recap of the oral argument later this week. The big case, though, will be State v. Gould, in which the State is contending that there's a good faith exception to the exclusionary rule in warrantless searches. It's based on what I consider a gross misreading of SCOTUS' decision a few years ago in Herring v. US. I've blogged about that, too (here and here), so we'll have a followup post on the oral argument on that as well.
In the courts of appeals, they always have oral arguments, so let's see how those turned out...
Last week, I linked to an article about the new trend in law enforcement: criminalizing attempts by private citizens to photograph or videotape police officers, often while the officers are not, shall we say, performing at their best. And over a year ago (scroll down to second story), I featured the following video:
It was a video of a motorcyle driver, Anthony Graber, taken through his helmet camera. He figured it might be interesting to show everybody how the state trooper somewhat overreacted (after all, it's not common for a cop to pull a gun on a traffic violator), so he posted the video on the web. For his troubles, he was charged with "interception of a wire communication," a felony punishable by up to 5 years in prison. I wrote at the time
Presumably, Graber will be represented by an attorney who didn't flatline his last EEG, who will point out to a judge that no one would have a reasonable expectation of privacy in a shouted conversation in the middle of a road. And presumably, that judge will have an IQ which exceeds room temperature, and will lecture Graber about the perils of driving recklessly, before dismissing the felony charge to save the commonwealth further embarassment. And presumably, the judge will then retire to his chambers to wrestle with the question of who is the biggest jackass in this scenario: Graber, the cop, or the prosecutor?
It turned out to be a bit more complicated than that. The state pushed the issue to the max, even getting a search warrant which they used to seize four computers from Graber's home. They also added some other charges that stretched the maximum possible term to 16 years. All for naught; last September, the judge dismissed all but the traffic violations (opinion here), holding that the officer had no reasonable expectation of privacy and that Graber's action was protected by the First Amendment, and making one final observation:
Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public. When we exercise that power in public fora, we should not expect our actions to be shielded from public observation.
That sentiment was echoed by the US First Circuit last Friday in Glik v. Cunniffe. Glik happened to be walking on the Boston Commons one day in 2007 when he came across three police officers struggling with a man. He heard another bystander shout, "you're hurting him, stop," and so Glik started video recording it all with his cell phone camera. After handcuffing the suspect, one of the officers asked Glik if the cell phone recorded audio as well as video. When Glik said yes, the cops arrested him and took his cell phone.
He was ultimately charged with felony wiretapping, disturbing the peace, and aiding in the escape of a prisoner. The latter charge was dropped by the prosecutor, and the trial judge tossed the other two, noting pointedly that although "the officers were unhappy they were being recorded during an arrest... their discomfort does not make a lawful exercise of a First Amendment right a crime."
But Glik didn't stop there. He filed an internal affairs complaint with the Boston Police Department, which was given the attention you might expect; my guess is it wound up in the trash can at the local Dunkin' Donuts. So Glik sued the police for violating his rights.
This is where it gets a little funky. Police officers have qualified immunity in such cases; in order to be held liable, the plaintiff has to show that the officers' actions violated "clearly established" Federal law. The cops argued they were entitled to immunity "because it is not well-settled that [Glik] had a constitutional right to record the officers."
Oh, yes it is, said the court:
"The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles [of protected First Amendment activity]. Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting the free discussion of governmental affairs."
The irony of the police arresting someone for exercising his First Amendment rights on the Boston Common -- akin to beating civil rights demonstrators in front of the Lincoln Memorial -- didn't escape the court, either; it noted that the Common was "the oldest city park in the United States and the apotheosis of a public forum."
That doesn't put any money in Glik's pocket; the 1st Circuit's opinion was on an interlocutory appeal. (Qualified immunity, like sovereign immunity under Ohio law, is one of those issues that can be appealed before trial or other conclusion of the case.) But if the jurors in any eventual trial, should it come to that, have as much grasp of the basic concepts of liberty as the 1st Circuit had, the City of Boston is going to be coughing up some bucks.
It wasn't a good week for Cuyahoga County Prosecutor Bill Mason. On Monday, the 6th Circuit affirmed a Federal judge's ruling that the state cannot retry Joe D'Ambrosio for a murder they claim he committed in 1988, and for which he spent 21 years on death row. Mason, then an assistant prosecutor, sat second chair in the case. As the opinion explains,
For more than twenty years, the State of Ohio has displayed a remarkable inability to competently prosecute Joe D’Ambrosio. In 1988, the state botched D’Ambrosio’s trial by violating Brady v. Maryland, an error that later came back to bite it in federal habeas review. Then, after D’Ambrosio was issued a conditional writ of habeas corpus, the state misunderstood the district court’s clear, binary order and attempted to simultaneously comply with both of the two alternatives it was given: retry D’Ambrosio within 180 days or vacate his conviction and release him. After failing to complete only the prompt-retrial option, the hapless state marched back to district court and, making D’Ambrosio’s argument for him, conceded that it failed to comply with the conditional writ. Ever since, the state has asserted a variety of confused jurisdictional arguments in both the district court and in this court...
Oh, by the way, that's the dissenting opinion.
Then on Tuesday, a Federal magistrate here handed down another opinion in a case where exculpatory evidence was withheld. In that respect, though, Mason fared a lot better than the police officer who withheld the evidence: the latter could ultimately be on the hook for damages in a §1983 action.
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