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What's Up in the 8th

No decisions from the 8th District for the past few weeks, the court apparently deciding that there was no point in rendering any while I was on vacation, since they would be unable to learn what they were doing wrong.

As if!  Actually, the court handed down no fewer than 64 decisions in the past three weeks, leaving little time for them to get a bitchin' tan like mine, although Cleveland isn't the most hospital clime for acquiring one in any event.   Let's take a look.

Leonard Cohen penned a song called "Everybody Lies," obviously inspired by his having attended a courtroom session or two.  Like perhaps the trial in Banas v. Shively, in which Banas claimed to have incurred some $83,000 in medical bills as a result of an automobile collision on July 3, 2007.  Less than three weeks later, she acknowledged, she'd been in another auto accident, but she testified at trial she hadn't been injured in that one.  At which point, in true j'accuse fashion, the defendant's lawyer handed her a copy of the lawsuit she'd filed in that case, complete with a prayer seeking $125,000 in damages.  Kinda hard to figure out how that was missed in witness prep.  The jury gave her $7,338.21, which was probably $7,338.21 too much, and the court apparently concurs, rejecting her claim that the trial judge should have granted her a new trial.

Or Cohen might have sat in on the suppression hearing in State v. Huey.  Officer Zinner of the East Cleveland PD stopped a car for drag racing, and called for backup.  Officer Nicholson responded, and as he walked toward the car he saw Huey, a rear-seat passenger, lean down.  Nicholson spotted an open beer can on the floor, which he thought was an arrestable offense, and believing Huey might be concealing something else, he removed him from the vehicle.  Before Nicholson could perform a pat-down, Huey took off running, and when Nicholson caught and tackled him, a gun fell out from Huey's waistband.

This seems like a throwback to the 1960's, after Mapp v. Ohio came out, and courts noticed a substantial jump in the number of cases in which drug dealers would obligingly drop their contraband in "plain view" of a police officer.  But Diogenes' search is over; an honest man appears in the form of Officer Zinner, who testified that Nicholson immediately placed Huey in handcuffs after removing him from the car, and discovered the gun in a patdown.  Having an open container is a minor misdemeanor offense, the court says, so there was no basis for an arrest.  The belief that Huey might have been trying to conceal something besides the beer might have been enough to save the search, at least in other districts, but possibly not even then:  As Banas learned, the appellate courts are generally as unsympathetic to liars as juries are.

The court's excellent work in 4th Amendment cases continues in State v. LynchThere, while on routine patrol in a high-drug activity area around midnight, two vice cops saw a car stopped in the middle of the street, with Lynch standing on the driver's side, leaning into the vehicle.  The car pulled away, and Lynch scurried over to his SUV.  The cops activated their lights and pulled alongside Lynch's car, and saw him making the proverbial "furtive movements."  Further inquiry revealed that Lynch had a suspended drivers license, and drugs and guns in car.

The State maintained that the initial stop of Lynch was actually a consensual encounter, and thus the question turns on "whether the officers' activation of their flashing police lights converted what would otherwise be a consensual encounter into a seizure," the court noting that its "review of the law in Ohio reveals that there is an apparent conflict between the districts on this issue."

Why?  What's so hard about this?  The determinate factor in a consensual encounter is whether the individual felt free to leave, and I'm sorry, but when The Man in Blue pulls up alongside your car with his lights activated, no one in his right mind is going to say, "Sorry, this isn't a good time," and pull off.  Even the officers conceded that if Lynch had done so, they would have gone after and arrested him for failing to comply with a police directive.  There's some unfortunate language in the opinion about the "totality of the circumstances," but a fair reading of the opinion indicates the adoption of a bright-line rule:  if the cops put on their lights, it's a stop, not a consensual encounter.  That wouldn't end the issue in most districts, because there the cops' observations of Lynch leaning into the driver's side of a car in a high-drug area would be sufficient to create a reasonable suspicion of criminal activity, making the stop/encounter analysis irrelevant.  But this is the 8th, and those types of observations just don't cut it here.

Woody Allen famously observed that 90% of life is just showing up.  Edgar Gonzalez apparently didn't hear about that, because he decided not to attend the last day of his trial on aggravated robbery charges.  That didn't keep the trial from going forward, of course:  you can't start a trial if the defendant doesn't appear, but once the jury's sworn and the trial begins, his voluntary absence is his problem, not anyone else's.  I've been in this position before -- talk about a vote of confidence from the client -- and it's a bit awkward, given that even the dumbest juror is going to be able to figure out that there's one less person at the defense table.  Gonzalez's lawyer tried to make the best of it, mentioning the "elephant in the room" in closing and suggesting that there might be any number of reasons for his client's absence.  The prosecutor responded by honing in on the most obvious:  as Bob Dylan crooned in "Subterranean Homesick Blues," Gonzalez didn't need a weatherman to know which way the wind was blowing.  Gonzalez argues on appeal that this constituted prosecutorial misconduct, but the court notes that "it is well settled that a party cannot complain of an opponent's argument to the jury where it amounts to only a reply in kind to matters argued' by the complaining party."

One final literary/cultural allusion.  Cervantes wrote a book called Don Quixote, and the defendant's appellate lawyer in State v. Redding certainly understands the tilting-at-windmills metaphor.  Redding was charged with domestic violence, and on cross-examination the victim gratuitously injected testimony concerning other incidents.  Redding's objection to this was sustained, but he complains on appeal this wasn't enough:  the statements were so prejudicial that reversal is required.  Not so, says the court, because not only did the trial judge sustain the objection, he gave an instruction to the jury to ignore the statements.  The court notes that a jury is presumed to follow instructions, and that "Wilcox has failed to provide any proof that the jury ignored the trial court's instructions."

Your homework assignment for this week:  figure out what proof Wilcox could have provided.  I'm pretty much drawing a blank.  Oh, and see if you can dig up Concrete Blonde's cover of Cohen's song; it's worth the effort.


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