December 2011 Archives
Ain't technology grand? I pumped out a 27-page brief in two days last week, largely because it was what I call a "non-Star Trek" brief: it did not require me to go where no man had gone before. There was an assignment of error on identification testimony, so I pulled out the law from a brief I'd written a few years ago, updated it, and put in the facts. Another assignment on manifest weight, and I've got a little folder devoted to the boilerplate law on that and numerous other subjects. Another one on impeachment with prior inconsistent statements, and didn't I do something on that last year? Why, yes I did.
And when it comes time for the 8th District to write an opinion on this, I'm sure they do the same thing. Press a couple keys, there's all the standard stuff on manifest weight, or sentencing under State v. Kalish, or allied offenses under Johnson...
Then again, that's somewhat understandable: this week's output of 33 opinions puts them at an even 1,212 for the year. That's more than any other district, by a healthy margin: almost twice as many as the 10th (648), and well more than that for the 2nd (578), the 6th (397), and the 1st (136). (I've been told that the 1st disposes of many cases -- accelerated docket and Anders briefs -- by journal entries rather than opinions.) Interestingly -- if you call this interesting, and if you do, some mental health intervention might be in order -- the 5th District had the second-most opinions, with 723.
The 8th did give the boilerplate a workout in several decisions, but it also had some fun in a couple of cases. Let's take a look.
With the grant of cert last week in the case involving the Texas redistricting, the Court is now poised to issue decisions on three issues -- the others being the Arizona immigration law and Obama's health care reform -- that could have a major impact on the elections next year. Somewhat interesting that the least democratic branch of our government would have an impact on the two which are. The Court issued one opinion last week, in Judalong v. Holder, holding that the government's application of its "comparable ground" rule under Section 212(c) for immigrants sought to be deported for crimes committed prior to 1996 was arbitrary and capricious. No, I don't know what that means, either, because I have as much understanding of immigration law as I do of string theory. If your thirst for knowledge remains unsated by the preceding couple of sentences -- and I can't imagine how it couldn't be -- this post from SCOTUSblog might help. Or not.
Judalong was only the second full decision issued this year, but the Court's also meted out four summary reversals, all on habeas corpus cases, the latest being Hardy v. Cross, in which the Court stressed again the "highly
obsequious deferential standard" Federal courts are to use in weighing state court decisions.
Down in Columbus, heated denials that the Supreme Court has been disbanded. There's certainly the possibility that the court will do a repeat of last year, when the week after Christmas saw major decisions handed down on consecutive sentences, post-release control, and allied offenses. Hey, it could happen.
Let's see what's happening in the courts of appeals...
No real post today. I'm on my way to Columbus for a seminar. The afternoon session will feature the sessions on substance abuse, ethics, and professionalism that all Ohio lawyers are required to -- hmmm, what's the verb I'm looking for... attend? undergo? suffer through? -- every two years. The morning session will consist of discussions of allied offense law after Johnson, sex offender notification and registration laws after Bodyke, Gingell, and Williams, and sentencing after HB 86. The latter will be done by moi, and I can assure you that I will do my utmost for those in attendance -- 129 at last count -- driven as they are by their thirst for knowledge, and the fact that their last names begin with the letters A through L.
A word on holiday scheduling. I'll have the customary Case Update on Monday, and the review of the 8th District's decisions on Tuesday. After that, the appellate courts pretty much take a holiday for the rest of the year, and so will I. I'll resume posting on Wednesday, January 4.
See you on Monday.
Dick the Butcher's phrase from Shakespeare's Henry VI -- "first thing we do, let's kill all the lawyers" -- wasn't far from the minds of some Cleveland citizens as the Anthony Sowell trial wended its way toward its inevitable conclusion this summer.Two years before that, police had discovered the bodies of 11 women in his house, and Sowell was subsequently indicted on 85 counts, including 11 for aggravated murder with death penalty specifications. The course of true love doth never run smooth, and justice along the Cuyahoga has its hiccups, too. The first judge assigned to the case recused himself a few days later because of a conflict. The second judge was removed by the Supreme Court because of concerns of "an appearance of impropriety" due to derogatory comments about one of the defense attorneys showing up on a cleveland.com blog which were later traced to the computer in her chambers. (She claimed her daughter, on break from law school, penned the remarks.)This county and its prosecutor's office don't have the best of reputations with the Ohio Supreme Court or the 6th Circuit, and after that inauspicious start the powers that be were probably tossing and turning with nightmares about the judgment entry in Sowell's future Federal habeas claim ending with the words, "Petition GRANTED, because this case was screwed up seven ways from Sunday." So they decided to do something about it; mainly, turn on the money spigots.I've written before of the penurious approach Ohio, and particularly this county, take toward indigent defense, most notably here, and oddly enough, that's not limited to non-capital cases. I say "oddly," because most authorities have recognized that death is a qualitatively different punishment, and finding that a capital defendant has not been provided the necessary means to defend himself is easier than a similar finding for someone the government isn't seeking to kill. Your client may be looking at a double-digit sentence for child porn, but good luck convincing a judge to give you five grand to hire an expert to see how the stuff got onto his computer. But if the State wants to put a needle in your client's arm, the wallets open up.Not here, though. One of the most important people on a capital defense team is the mitigation expert: she's the one who's going to interview all the family members, co-employees, employers, teachers, and just about everybody who knew your client, who's going to go through all the medical records, psych records, school records, employment records... You get the idea. Properly done, that can involve hundreds of hours of work. A couple years ago, the maximum that could be paid to a mitigation expert here was $5,000. Then the county lowered it to $2,500. (By comparison, in the trial in Federal court last January of Antun Lewis, accused of setting a fire which killed eight children and a woman, the mitigation experts' fees ran close to six figures).That went out the window in the Sowell case, though. The money flowed not only for mitigation experts, but for various other evidentiary experts, and other things as well. Sowell's house, it turned out, was within the site line of the video surveillance cameras of a nearby business, so the court appropriated money for a group of paralegals to sit and watch three years worth of video tapes to see whether there was anything which might be helpful to Sowell's defense. To no one's real surprise, there wasn't, but those are the kinds of things you do in a death penalty case that you don't do otherwise.What about the lawyers? That's where things get interesting. Appointed counsel in Cuyahoga County are paid at the rate of $50 an hour for out-of-court time and $60 for in-court time, or slightly less than what a plumbing company will charge you for the guy who comes out and snakes out your shower drain. That applies to death penalty cases, too, and the fees are capped at a total of $12,500 for each of the two lawyers assigned to the case.The cap's not too bad when you're talking about a capital case where the defendant got overly excited while robbing the 7-11 and waxed the cashier. But it's an entirely different matter when you're talking about crimes which occurred over several years, and a trial which would take over two months. After a series of meetings with the powers that be, Sowell's lawyers, John Parker and Rufus Sims, worked out a deal: the fees would be $95 an hour, uncapped.All of this, of course, wasn't done under the radar. Any enterprising Plain Dealer reporter could check out the online docket, studded with entries awarding payment for all these items. That only included the defense costs, of course, but if the enterprising reporter had a pocket calculator and a good sense of what it costs to prosecute a case like this, he could have figured out that, on the eve of trial, the total tab was heading north of half a million dollars.Over the next ten weeks, the trial plodded toward the conclusion everybody knew was coming: Sowell wasn't nuts, at least in the legal sense, and having 11 dead bodies found in your house is not, as we say in the law biz, consistent with any reasonable theory of innocence. The guilty verdicts were followed by the other conclusion everyone foresaw. Cuyahoga juries have been recently loathe to dispense death sentences, but the horrific facts of Sowell's case broke that pattern. In a town as marred by the Great Recession as this one has been, using up some $600,000 of taxpayers dollars arriving at what most believed was a foreordained result didn't make many people happy, and when Sowell's lawyers filed a motion to vacate the verdict because of jury misconduct (which was denied), the gloves came off, with comments to the various Internet news postings, like cleveland.com, suggesting that the lawyers had earned "millions" of dollars, and even had signed book and movie deals.Well, not quite. Remember that part about the agreement not to cap the fees? That turned out to be so five minutes ago. On August 11, the day after the jury came back with its recommendation of death, the judge signed an order capping the fees at $150,000. So no millions, no book or movie deal. In fact, Parker wound up being compensated at the rate of $18.50 an hour for his trial time. (Sims got nothing; the cap had been reached before he got in his fee bill for the trial.)So that's a little over a grand for the time in trial, plus whatever else he made during that time. Which probably wasn't much, because here's what you else you do when you're in trial: nothing. Being in trial all day, day after day, is tremendously mentally taxing. You don't have an on/off switch; you don't come back to the office from the courtroom and figure that you're going to return client's calls or work on those other files that you've got or see if you can drum up some new business. Especially if you're like most lawyers, and spend time thinking about what you could've done in trial that you didn't do, the question that you shouldn't have asked, the objection you should've made, and the hundred and one ways to second-guess yourself. And then factor in that those second-guesses come with the thought that your client might pay for any mistakes you made with his life.The judge in the case is a good guy, and I have to figure that the powers that be leaned on him. This is, after all, the same county that recently removed the water coolers in the jury rooms because they couldn't afford them. The judge's order, which you can read here, contained the usual language about how assigned attorneys "understand that they will not be compensated at the same rate as attorneys who are retained by clients with the ability to pay for representation," and how it's "part of the attorney's contribution and commitment to serve the interests of justice and the public good, to accept less than full consideration for their efforts on assigned counsel cases."Maybe the entry should've been posted as a comment on cleveland.com.
The police respond to a call of a burglary in progress, and, when they arrive at the scene, see a van parked next to a dumpster. The van's crammed with a snow blower and a wood chipper, both of which were taken from a nearby store. They arrest the owner of the van, and few months later, he pleads guilty to breaking and entering, theft, and possession of criminal tools. Are the three crimes allied offenses?
The defendant robs the victim at gunpoint, then walks away. The victim runs after him, only to have the defendant turn around and fire a shot at him. Are the defendant's subsequent convictions for attempted murder and aggravated robbery allied offenses?
Now let's change the facts around just a bit. Here, the victim is confronted at gunpoint, but instead of surrendering his valuables, he takes off running. The defendant runs after him, firing several shots at him. Are the offenses of attempted murder and aggravated robbery allied in that scenario?
I've written before that for years the 8th District has been the most 4th Amendment friendly in Ohio, if not the country. It's also always been one of the most hostile toward the Adam Walsh Act; it is virtually impossible to prosecute a failure to register or notify case in this county against a Megan's Law offender.
Well, the 8th has recently been building a reputation as one of the most insightful courts on 404(B) evidence. It began a month ago with State v. Williams, an en banc decision on the subject, which I discussed in detail here. The subject comes up again in two more cases this week, State v. Yancy and State v. Sutton.
Further oral arguments in SCOTUS will have to await the ringing in of the New Year -- January 9, to be specific -- but while that means there are 28 more shopping days until we get to see Scalia and Breyer verbally jousting, with Thomas sitting mutely by, it doesn't mean the Court's out of session. (And by using the phrase "shopping days," I certainly date myself to a time when there was actually a distinction between "shopping days" and "days" until Christmas, well before Thanksgiving would end with masses assembled around Target and Best Buy, like the angered villagers around Dr. Frankenstein's castle, and to like mind and effect.) On the docket that week is yet another case concerning the FCC's indecency policy, this time involving an NYPD Blue episode in 2003, which earned numerous network affiliates a $27,500 fine for a scene which displayed "a small portion" of a woman's breast, with "her buttocks visible from the side." The Commission decided, in its wisdom, that this constituted a "depiction of sexual or excretory organs," but the circuit court decided that the Commission's policy was so damned vague and stupid it couldn't be enforced. The Supreme Court will decide who's right. The Court is expected to issue one or more opinions today, and to announce whether it will accept the case involving Arizona's immigration law. (UPDATE: the Court did agree to hear the Arizona case.)
The only decision handed down by the Ohio Supreme Court this week also did not pertain to criminal law, but to medical malpractice. Since this blog is primarily directed at criminal lawyers, and the number of those who also handle med mal cases is approximately the same as the number who moonlight as porn stars, I'll keep it brief. In White v. Leimbach, the court held that, in case alleging that a doctor did not give the patient sufficient information to allow the patient to give informed consent to the medical procedure, the plaintiff must provide expert testimony to establish that the undisclosed risk actually materialized and caused the injury. So there. Now go on with your bad self, while I go on to the courts of appeals...
The judge was concerned from the outset of the trial. The prosecutor had spent close to an hour in voir dire, doing what lawyers are supposed to do: making a favorable impression, convincing the jurors of his sincerity, and subtly inculcating them in various principles of law that would be helpful to the prosecution. Yes, we have the burden of proving cases beyond a reasonable doubt, he told them; but that doesn't mean beyond a shadow of a doubt, you understand. And it's not an impossible burden; every day, jurors in courtrooms just like this one are finding that the state did indeed satisfy that burden of proof. The defense lawyer, on the other hand, spent no more than a few minutes, mumbling something about being "fair and impartial" before quickly sitting down.
Her concerns deepened as the trial progressed. The defense lawyer's cross-examinations were meandering and pointless, but the case quickly went off the rails when it came time for the defense to present its case. The defendant had been in jail the entire time the case was pending, but the jury wouldn't know that; he was nicely attired in a clean dark suit and white shirt and tie. So why was the first question to the defendant's wife, "Where did you and your husband live before he was incarcerated?" If the prosecutor had asked that, it might've been grounds for a mistrial. True, some defense lawyers tried to milk pretrial incarceration for sympathy, asking questions about the hardship separation has caused and so forth, but this lawyer didn't. Besides, if you were going to do that, why have the client dressed up?
And this wasn't some crackpipe case; the defendant was charged with molesting a 12-year-old, and the kidnapping with the sexual motivation spec carried a mandatory sentence of 15 to life. So when the lawyer's missteps continued, and it became clear that he wasn't providing effective assistance of counsel, the judge did what she had to do: she declared a mistrial and removed him from the case.
Back in 2008, the Ohio Supreme Court confronted the question of whether one DNA analyst could testify to the results of testing obtained by another. The 3rd District had answered "no," holding that the right of confrontation, as interpreted in Crawford v. Washington, required that the defendant have the ability to cross-examine the person who actually peformed the test. In State v. Crager, the Supreme Court reversed, holding that "results of scientific tests are not testimonial under Crawford." I'd suggested at the time that the opinion was possibly too broad, and sure enough, a year later, in Melendez-Diaz v. Massachusetts, the US Supreme Court specifically rejected that view, holding inadmissible a certificate of a drug analyst's report without the analyst's accompanying testimony. By this time, Crager had been appealed, and SCOTUS did what's called a GVR -- grant certiorari, vacate the decision, and remand -- for reconsideration in light of Melendez-Diaz. The Ohio Supreme Court hemmed and hawed, but finally concluded that it had gotten it wrong in Crager.
On Tuesday, SCOTUS held oral argument in a case which about whether Crager was right all along.
The case against Demetrius Darmond and Iris Oliver seemed pretty solid. The cops had interdicted a Fed Ex shipment at the local facility, a box addressed to "Tasha Mack" at the address Darmond and Oliver lived at on Huntmere Rd.; after obtaining a search warrant, the police found a package wrapped in happy birthday paper and an envelope containing marijuana. Four days later, another interdiction led to the discovery of a similar box, also containing marijuana, this one addressed to "Sonya Byrd" at the house on Huntmere. The packages were delivered, Darmond and Oliver accepted delivery, and were subsequently charged with drug trafficking.
During trial, it came out that there weren't just two packages. Five others had been interdicted at the same time, all of them very similar to the ones Darmond and Oliver were being tried for -- all were the same box size, came from the same area, and contained very similar packaging, and the same handwriting. The judge declared a mistrial and dismissed the case with prejudice, and last week, in State v. Darmond, the 8th District affirmed, with a decision that could have a major impact on discovery violations in the future cases.
No trial judge likes to be reversed. First, there's the public proclamation that You Screwed Up. To be sure, the chances that the electorate is going to be glued to its computer monitors each Thursday morning at 9:00 o'clock when the 8th District announces its decisions is non-existent, but there's still the blow to the ego. Then there's the prospect of having to do something all over again. Like a trial that took a week to begin with.
Oddly enough, in my conversations with judges, I've found that they seem more upset about being reversed on some diddly matter. For a while there, it was post-release control; hardly a week went by that two or three cases weren't sent back so that judges could say the magic words, correctly this time. Then there was the matter of forfeiture specifications, but there was oral argument on a case on that a few weeks ago in the Supreme Court, so that may be get ironed out soon, too. The current bugaboo is restitution.
In France, they essentially shut down the country in August; everybody goes on vacation. I've often thought we should do something like that here, except make it in December. Well, no, not everybody going on vacation; we certainly need store clerks. But court clerks? Not so much. Few trial courts schedule much of anything the last two weeks of the month, and the appellate courts start winding down, too.
Take the Robed Ones down on the Potomac, for example. No decisions, and they finish the year this week, with six oral arguments and a final conference on Friday. Three of those arguments involve criminal issues, although the first, Messerschmitt v. Millender, is a civil case, involving the question of qualified immunity in suits against police officers for searches that go awry. Basically, the Court has applied the good-faith exception for searches conducted with a warrant, and have held that an officer cannot be sued unless the affidavit used to obtain the warrant is "so lacking in indicia of probable cause as to render belief in its existence entirely unreasonable." Some commentators have noted that this means "all but the plainly incompetent or those who knowingly violate the law" will be granted qualified immunity, a rule that some wags have called "the Barney Fife exception" to the Fourth Amendment. The argument on Tuesday in Martel v. Clair will focus on when a death row inmate is entitled to new court-appointed counsel, but the big case will be the one before that: in Williams v. Illinois, the Court will consider whether there's a Crawford violation when one witness testifies about the results of DNA testing performed by a different analyst. We'll talk about that on Thursday.
I guess I really shouldn't get on the Ohio Supreme Court's case as to declining output in December. Last year, they came out with Hodge, Fischer, and Johnson in the last week. Maybe that will happen again this year.
Maybe not, and until it does, I'm left looking at the appellate cases. And there's not a whole lot of action there....
In a recent poll I made up for this post, only 28% of lawyers felt that judicial opinions were regularly "clear and concise." Most found them to be "overly lengthy," "imprecise," or "confusing," with slimmer margins voting for "appallingly mind-numbing" and "frequently just shy of coherent."
Now, I know, if you're an appellate judge, you're sitting there thinking, "Hey, you try to read briefs full of gibberish and listen to mumbed and meandering arguments, mix that with a dozen or so decisions in previous cases, and try to come up with an opinion out of that, and then do that a couple times a week, and see where you go." That's not much of an exaggeration, at least up here in the 8th, which hands down over a thousand decisions annually; last year, to take one example, Judge Kilbane wrote 112 opinions, either for the court, or concurring or dissenting. She was greatly aided in that task, no doubt, by my contribution of several briefs full of gibberish and my mumbled and meandering arguments.
But help is on the way. Yesterday, I mentioned that the Supreme Court has issued a new citation manual, spelling out over 168 pages in appallingly mind-numbing detail -- whoops, sorry, got the poll results mixed in there -- of exactly how to cite just about anything imaginable. (Well, not everything; if I wanted to use Tuco's Law of Duality, as I did yesterday, in a brief, the manual does not inform me how to cite this. Perhaps "Tuco, The Good, the Bad, and the Ugly (Leone, Sergio 1966)." Inquiring minds want to know.) It's not just for appellate judges, of course; the proper form in an opinion means it's also the proper form for a brief, so you better bone up on this stuff lest the Citation Police show up at your office.
And citation form is only the first part of the manual. The second part governs style. Did you know that whether "governor" is capitalized depends on how you use it? "Governor John Kasich" versus "John Kasich, governor of Ohio." Now you do. Ditto this: if only the month and year of a date is used, you don't put a comma or "of" between them: "I started this blog in May 2006." The manual takes a dim view of footnotes, cautioning that they should not be used "for legal analysis," and specifically stating that citations belong in the body of the opinion, instead of in footnotes; several districts, especially the 1st, have used the latter technique for years, so I guess that's the end of that.
I know this comes up a lot. You're plugging away late at night on a brief that's due the next day -- your motto, like mine, being "if it weren't for the last minute, I'd never get anything done" -- and you find yourself in a quandary. You need to cite the Statute of Anne, which was enacted by the English Parliament in 1705, but you're not sure of the proper citation form. (Why you would be citing an English law dealing with rent on co-owned property is beyond me, but hey, it's your brief, not mine.) You don't want to commit the faux pas of citing the statute in the wrong form, which would be instantly recognized by every appellate judge on the bench. What to do?
Well, cheer up, Sparky. There are untold benefits of being a regular reader of this blog, and one of them is that I have nothing better to do than scrounge around the Ohio Supreme Court website looking for ways to fill up five posts a week. Today I came across the new Writing Manual issued by the court, and right there on page 56 is the answer to your question of how to cite foreign statutes: "Statue of Anne (1705), 11 Eng.Stat. 161, Chapter 16, Section 27."
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