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October 2011 Archives

Case Update - Tanned, Rested & Ready Edition

Yes, I'm back, avec bitchin' tan.  Well, maybe not that bitchin'.  More color than I normally have, but that's not saying much, considering  there are vampires who get more sun than I do.

Down in DC, nothing yet from the Court, hardly surprising considering that the current term began only a month ago.  In fact, there were no oral arguments while I was away, but the pace will be picking up in the next few weeks, with arguments scheduled this week in two cases involving ineffective assistance in plea bargaining (Monday), in the case on eyewitness identification, which I previewed here (Tuesday), and the big one on GPS devices and searches (next Tuesday).  I'll have more on those after the arguments.  Viewer discretion is advised.

In Columbus, three weeks have seen no significant decisions, except for State v. Lester, which I previewed here.  As I'd predicted -- in fact, as anyone who saw the oral argument and hadn't flatlined their last EEG could have predicted -- the court ruled in favor of the state, but by a narrower vote than I'd figured.  A closer look at the opinion, though, which I'll discuss on Wednesday, shows that it really wasn't that close.

Now, with a couple hundred or so appellate cases to wade through, let's get to those...

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Don't cry for me, Argentina

Or Chile, or Uruguay, or the good ol' USA, for that matter.  I'm off for some R&R in the Aloha State, and if you can't figure out where that is, you probably shouldn't be reading this blog, although you can take some comfort from the fact that you're probably in the desired demographic of Fox's new comedy lineup.  At any rate, I'm going to be spending the next two weeks there, without reading, writing, or thinking about the law, to the extent that I am capable of that.  I'll be back here on October 31, with a bitchin' tan and a healthy dose of snarky attitude about what's come down in the courts since that time.  See you then.

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Form over substance

I have no idea whether Troy Davis was innocent.  He was convicted of murdering a police officer in 1989 and sentenced to death.  A wide range of advocates -- everyone from Desmond Tutu to Bob Barr -- persisted in contending that he'd been wrongly convicted, buttressed by claims that seven of the nine witnesses against Davis had persisted.  In 2009, the Supreme Court went to the unusual step of ordering the US. District Court to hold a hearing to determine whether new evidence "that could not have been obtained at the time of trial clearly establishes [Davis's] innocence."  The judge did, concluded that the claims of innocence were "largely smoke and mirrors," and, after numerous appeals and requests for clemency, Davis was executed on September 21.

I have no idea whether Amanda Knox is innocent.  Knox, while an exchange student in Italy, was convicted with her boyfriend of murdering her roommate.  Questions were raised with regard to the circumstances of her statement to the police and the collection of DNA evidence, however, and last Monday, in a second trial of the case, Knox and her boyfriend were acquitted.

Take a look at that last sentence.  That wasn't a second trial ordered by an appeals court after a reversal.  In Italy, the appeals process is a do-over:  you get a new trial, in front of a new set of jurors.  (Two judges, and six laymen.)  Think Troy Davis might have liked something like that?

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What's Up in the 8th

"Mr. Miller, you're here before me for sentencing.  The statutes of Ohio require that I take certain factors into account in imposing your sentence.  I don't know what the statutes say, and I don't care; in fact, I've never bothered to read them.  I asked my wife this morning how much time I should give you, but she wanted to get into this long-winded conversation about what you'd done, and I didn't want to do that, so tell you what, I'll just give you five years and we'll call it a day, okay?"

That's pretty much what it would take a judge to say in order for the 8th District to reverse a sentence.  And if the judge didn't include the part about disregarding the sentencing statutes, it might not get reversed even then.

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Case Update

SCOTUS sprang into action last week, if "sprang" is the appropriate verb to describe a court in which the jurists average just north of 65 years of age.  (Then again, it's sobering to realize that three of them are younger than I am, calling to mind Tom Lehrer's observation, "when Beethoven was my age, he'd been dead for three years.")  No decisions, of course, just arguments.  One, Maples v. Thomas, I'll discuss on Wednesday.  Howes v. Fields is another, involving the question of whether a prisoner is in custody for Miranda purposes when he's told during seven hours of questioning that he's free to leave the cell and return to the prison population.  The concept of whether someone in prison feels free to leave is hard enough to wrap your head around, but complicating the situation is that, as so often happens in criminal appeals, the case arises through habeas, with the result that the question is not merely whether the prisoner should be deemed to have been in custody, but whether there was clearly established law by the Supreme Court on that point.  "That's some catch, that Catch-22," Yossarian would have opined on this:  if the law was clearly established, there would be no need to hear the case, would there?

In the category of Least Unanticipated Events, we have the Ohio Supreme Court's unanimous decision last week in State v. DavisDavis, convicted of murder and sentenced to death, had filed a motion for new trial, claiming that new evidence concerning DNA would exculpate him.  The trial judge disagreed, and things got funky when Davis appealed that to the 5th District.  There's a 1978 Supreme Court Case, State ex rel. Special Prosecutors v. Judges, which held that a trial judge couldn't grant a motion to withdraw a plea after the conviction had been affirmed by the court of appeals, and the decision has been read more broadly to include the proposition that a trial court loses jurisdiction over a case after an appeal is filed, even when the appeal is over.  The 5th District came to the conclusion that this prevented a trial judge from granting a motion for new trial as well.  Not to put too fine a point on this, but as I explained when I discussed oral argument in the case, the result is pretty much nuts.  Davis clarifies two points.  First, a trial court has jurisdiction to consider a motion for new trial on the basis of newly-discovered evidence even after an appeal; in fact, although the court's syllabus is limited to that, and even then only in the context of capital cases, the proposition arguably should be that a trial court has jurisdiction to do anything that's not inconsistent with the appellate court's ruling.  Second, the 1994 amendment to the Ohio Constitution providing for bypassing the courts of appeals and for direct appeal to the Supreme Court only apply to the decision imposing the death sentence; a court of appeals still has jurisdiction to review any post-trial motions in such cases.

On to the courts of appeals, which exercise their jurisdiction every day...

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Having second thoughts

It happens all the time:  a woman makes a claim of domestic violence, recounting to the police in vivid detail just how her husband punched her and knocked her down.  A couple weeks later, she decides that she loves him or he just needs counseling or he just needs to stop being drunk all the time or she needs his paycheck, or whatever; the net result is that she tells the prosecutor that what really happened is that she slipped and fell into a counter.  The prosecutor, knowing that she's recanted, realizes that he can't use her prior statement if he calls her to the stand:  EvidR 607 bars a party from impeaching their own witness with a prior inconsistent statement unless the party can show both surprise and affirmative damage.  So what's the prosecutor to do?

Just ask the trial court to call the wife as the court's own witness, under EvidR 614, which will allow him to cross-examine the witness, and impeach her with the statement.  This happens all the time.  It happened in yesterday's 8th District decision in State v. Sutphin.  Trial judges routinely grant these requests. 

But what if the trial court doesn't?  That was the focus of the arguments before the Supreme Court on Tuesday in State v. Ginley.

Continue reading "Having second thoughts" »

Back in the saddle

Everything works.  Cool.  I'll be back tomorrow with a post on the oral argument in State v. Gridley.  Yeah, you don't know what the case is about, but you'll want to.

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Not quite there yet

As Elton John sang in Rocket Man, "all the science, I don't understand."  What I do gather is that somebody hacked into my web site and was using it to send spam; it was "cloaked," so users couldn't see it, only search engines.  Well, most users; kudos to the reader down at the AG's office who first spotted it and let me know about it.  He was using Firefox 7 instead of Internet Explorer, and it was visible tohim.  Boo to me for not doing more when he first told me; it wasn't until a couple of days later, when I got an email from John Grillot at White Fir Design, telling me that he'd discovered the hack while cleaning up another customer's website.  Boo to E-Webscapes, my blog hosting company, which took five days to get me the info I needed to have White Fir clean up the site.

There are still problems.  Google has removed my web site from their index because of the spam issue, but I've applied for reconsideration, which is sort of like an appeal, I guess, and maybe I'll have better luck with that than my legal ones; it should be restored soon.  The big problem now is that if you click on the "read more" or on the heading of any post, it tells you that it can't find it.  I should be able to fix that soon, too.

Don't worry that your computer might be affected if you came to the website over the past several weeks, which is apparently when the hack was done.  As I said, the only thing it did was send out spam. 

As soon as I get the last few issues resolved, I'll be up and running again.  Thanks for your patience.

Continue reading "Not quite there yet" »


This site's been hacked, and it's going to take me a little while to clean it up.  I'll be back here with a post on Friday.  Thanks for your patience.

Continue reading "Hacked" »

Witness lists

I don't like to present a defense when I'm trying a case.  If I do my job right, I've inculcated in the jury the need to view every one of the prosecution's witnesses with a jaundiced eye, to look for contradictions, inconsistencies, things that run contrary to common sense.  But then if I put on witnesses, the jury does the same thing with them.  Plus, your witnesses often aren't very good:  there's Momma, to testify that she and junior were sitting on the couch watching Sanford and Son reruns while he was supposedly pistol-whipping three people in an armed robbery across town, or Junior himself, to testify that, sure, he's got five prior felony convictions, but in each of those cases he pled guilty because he'd done it, and here he's taking it to trial because he didnt' do it...  well, good luck with all that.

But every now and then, you're in a position where you need to put witnesses on the stand, so if you're going to do it, you better do it right.  And that means telling the prosecutor who those witnesses are going to be.  As the 8th District's decision last week in State v. Fussell demonstrates, failure to do so can have some serious consequences.

Or not.

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What's Up in the 8th

I've written before about the steep odds against an appellate court reversing a lower court's denial of a motion to vacate a guilty plea; there are few words more hollow in law than that such motions, pre-sentence, should be "liberally and freely granted."  That doesn't keep defendants from trying, and this week they pursue a variety of novel arguments.

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Case Update

The Supreme Court's term begins today, and as always, it will be marked by the ritualistic entry of the justices into the majestic courtroom, followed by the airing of grievances and feats of strength.  Whoops, no, that's not how it goes.  Instead, Justice Thomas will give his customary long-winded dissertation greeting the assembled masses.

Seriously, the Court will begin its term with oral arguments this week in several criminal cases, including Martinez v. Ryan, which presents the issue of when an indigent defendant is entitled to appointed counsel on appeal.  The Court's previously held that the right to assigned counesel only attaches to an appeal "as of right," and doesn't include discretionary appeals or collateral proceedings.  Arizona, though, allows a defendant to pursue claims of ineffective assistance of counsel only in post-conviction relief, and so the question then becomes whether he's entitled to appointed counsel for this purpose, since it essentially serves the same function as an appeal as of right on that claim.  Maples v. Thomas presents an appalling case of form over substance:  Maples was sentenced to death, and a court clerk mailed the papers denying his latest claim of relief to his attorneys.  They'd withdrawn from the case without notifying Maples or the court, though, and never filed the necessary papers to appeal that decision.  The 11th Circuit held that this didn't excuse Maple's "procedural default," essentially nullifying his habeas claim.  I'll have more on these cases after oral argument.

The Columbus Seven swing back into action this week, with the 8th District's decision in State v. Ginley among the cases slated for argument.  In Ginley, the State sought to have the trial judge declare a recanting witness in a domestic violence case a court's witness under EvidR 614, which would have allowed the State to impeach her with her statement.  The judge declined, and the State's appeal to the 8th District was rejected.  The case presents somewhat of a procedural quagmire:  the 8th actually rejected the State's leave to appeal, and there are questions of whether the judge's order was even appealable.  That will get fleshed out on Tuesday.  On Wednesday, the court will take up State v. Monford, in which the defendant's lawyer (who died before trial and was replaced by another attorney) filed pleas of not guilty and not guilty by reason of insanity in an aggravated murder case.  Monford was convicted, with no evidence presented on the issue of insanity, but the defense was never formally withdrawn, and Monford appealed, claiming that it was structural error not to charge the jury on the defense.  The 10th District didn't buy it, and I've read none of the law or the briefs, but the early line on this one is take the State and give the points.

On to the courts of appeals, where that's also a pretty good rule of thumb...

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