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What's Up in the 8th

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 appellate court's decision is correct.  Batson cuts both ways:  it limits both the defense and prosecution, and you can't remove jurors because they're white any more than you can remove them because they're black.  To be sure, given the rarity with which Batson challenges are upheld -- just last month I'd reviewed State v. Williams, in which a Batson challenge had been rejected in a prosecutor's removal of five blacks from the jury, including for reasons similar to those proffered by defense counsel here -- it's ironic to find the prosecution winning one over the exclusion of a white juror.  Still, the court in Davenport engaged in the correct analysis, properly deferring to the trial judge's conclusion that the reason offered for removing the juror was insufficient, in light of the judge's own observations of the juror.

I don't have a problem with the trial judge's conclusions, either; she was there, and I wasn't.  What I do have a problem with is that the prosecution didn't object here; the judge is the one who raised the issueThere may be very rare occasions when the judge should intercede in the trial, probably limited to situations where defense counsel's performance would raise an issue of ineffective assistance of counsel.  Other than that... The umpire in a baseball game doesn't go over to the dugout and tell a manager, "Hey, you're pitcher's losing his stuff, you better get a reliever in here."  I don't think it's the judge's role to sua sponte raise objections to what either party is doing.

If you're the type who enjoys a really good fireworks display, you probably should have caught the oral argument in State v. LeeIt's the typical post-release control story:  Lee pleads guilty to a reduced charge of attempted rape, should have been given five years of PRC, instead the judge -- horror of horrors -- told him that he'd have "up to five years."  That's wrong, but nobody gets around to realizing it until Lee's five-year sentence is almost up, so just six days before he's set to be released, at which point PRC can't be imposed anymore, they do a televideo conference from the prison and properly impose PRC.

Lee appeals, raising the usual objections:  he didn't waive his right to appear in person, and it's not fair that he gets resentenced at that point, he was denied effective assistance of counsel because one was appointed for him on the date of the conference.  The court shoots them all down:  if you don't affirmatively object, you waive your presence, it's not unfair, and counsel in fact made an eloquent argument on Lee's behalf.  (A better reason might have been one used in other decisions of this sort:  when the prison sentence is up in three days, what's an attorney going to do to change that?  Keep in mind also that this was pre-Fischer, where there actually was a de novo resentencing.  Since now the only purpose of the sentencing is to properly impose PRC, you could appoint a chimp to represent the defendant, and it's not going to change anything.)

But there was one additional argument that was raised in the appeal:  that Lee's plea should have been vacated since he was not given proper advice concerning PRC.  The court finds this argument "outrageous," and comments in a footnote that it "remains skeptical that Lee actually desires to re-institute the original prosecution, and wonders if such an assignment of error should be raised without a showing that appellate counsel obtained the express written consent of the appellant to do so."

Why?  Look at what happens if Lee wins that argument:  His plea is vacated, and he goes back to being charged with the original crimes -- rape, kidnapping, and 3rd degree felony gross sexual imposition.  There are two ways he can benefit from that.  One is by going to trial and winning, thus removing a felony charge from his record and his obligation to register as a sex offender.  Of course, then he risks being convicted, and doing more time.  The other is by working out a more favorable plea, but that would have to be a plea to a non-sex offense, since the only possible benefit he could obtain would be removal of the registration requirement.  It would be one thing if he had an additional four years to go on his sentence, and was looking to reduce that time; here, though, he'd have served his full sentence.  The court's outrage is a bit over the top, and this attorney is one of the better veteran appellate lawyers around, but this argument probably should have been left on the cutting room floor.

The court also gets peeved in Sokolovic v. Hamilton, but this time at the trial judge.  Sokolovic sued her vet, claiming he'd killed her dog Alexa, and Hamilton filed a motion in limine asking that evidence be excluded of anything other than the fair market value of the dog.  (We'll get  to that in a minute.)  The judge granted the motion in December of 2008, but then "inexplicably" didn't journalize the entry until two years later, and certified it as a "final appealable order."  From the transcript of the hearing on the motion, it appears that the judge was seeking an advisory opinion on his ruling, and the court tartly observes, "this we do not do."

The court then proceeds to give an advisory opinion on whether Sokolovic could indeed pursue damages for anything other than the fair market value of the dog.  The court's opinion gives a detailed analysis of why non-economic damages cannot be sought, despite the "human-animal" bond and cases from other states allowing such damages.  <Insert your joke here about how in some Southern states they allow damages for loss of consortium>  Exactly why the court goes into this is unclear; the expenses Sokolovic was apparently seeking to recover were for what she paid to Dr. Hamilton and additional fees paid to her own vet which she claimed would have been unnecessary but for Hamilton's negligence, which would seem to clearly fall into the category of economic loss.  In any event, the court sends the case back for resolution of the pending claims, noting that, "As this case has been pending on the docket of the Bedford Municipal Court since 2007, we caution the trial court to handle this matter in a more expeditious manner."  So there.

The big decision from the 8th this past week, though, was in a search case involving a GPS device surreptitiously, and without a warrant, planted on a car.  We'll talk about that one tomorrow.

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