January 2012 Archives
Ah, the wonders of television. Featured at right is the star of the reality show, Dog the Bounty Hunter, and his lovely bride exchanging their wedding vows, an event which took place the day following his daughter's death in a car accident. If a picture's worth a thousand words, 800 of them in this one are "white trash." The producers of the show might want to keep an eye on this blog for future plot outlines, such as the one found in the 8th District's opinion last week in Mota v. Gruszczynski. Mota, a bounty hunter, was hot on the trail of Jerome J. Gruszczynski, who was staying at the home of his parents. (The opinion, for obvious reasons, uses everybody's first names.) Mota spotted him in the yard drinking beer with some buddies, and when Jerome ran into the house, Mota followed him inside, only to encounter the family dog, Buckshot. Then again, the real (human) Dog might not like the plot: Buckshot bit Mota on his hand, thigh, and scrotum. Mota sued the parents and owners of the home, but the 8th affirms the grant of summary judgment in an opinion in which we learn that (a) it used to be that a dog owner didn't have liability to one who was committing a trespass, but the statute's been amended to limit that to those committing a criminal trespass, and (b) RC 2713.22, the statute that authorizes a bounty hunter to arrest a defendant, shields them from criminal liability for a trespass, but doesn't negate their status as a trespasser. Or something like that. I stopped reading the case because I just had to go back to that picture.
Double your pleasure, double your fun: you get two updates this week. The one for last week was inadvertently left off, and I posted it on Saturday; it's right below this one. So you're going to be really well-informed about the latest legal developments.
Of which there were few. The big one, of course, was US v. Jones, the GPS case, which I discussed last week. One correction. I said that the majority had held that a warrant was required to place a GPS device on a vehicle. This isn't correct: the majority had held that placement was a search, but didn't address the question of whether the search was reasonable, finding that the government had forfeited the issue by not raising it below. As I mentioned, this distinction might not be significant; although there is an argument that a search, whether with a warrant or without, need only be reasonable to satisfy the 4th Amendment, in fact the case law pretty much holds that a warrantless search must fall within one of the exceptions to the warrant requirement to be valid, and I don't see one here. Still, Jones is one of the more confusing decisions to come out of the court, and I apologize for contributing to that confusion.
But no more decisions for the next few weeks. SCOTUS is on its "winter recess" -- which follows the "holiday recess" and the "fall recess," as well as the "it's time to take a couple weeks off recess" -- and won't be reconvening until a conference on February 17, with oral arguments to resume the following week. The Court now decides about 75 cases a year, half of what it handled just twenty years ago.
The Columbus Seven was no in recess, seasonal or otherwise, handing down several decisions, though none of a criminal nature (referring there to the subject matter of the case, not the reasoning process employed in the opinion). The most significant was In re Adoption of M.B. In that case, the biological father, ordered to pay $1,000 a month in child support, instead provided a $125 gift card for Christmas and $60 in cash on the child's birthday. The court holds that these de minimis gifts do not constitute maintenance and support, and thus the father's consent to adoption was not required. The opinion makes it clear that only mandated child support payments will be considered as "maintenance and support," but seems to suggest, somewhat disturbingly, that a trial court would have discretion to determine that the need for consent could be negated by "a parent's missing one or two payments of support in the year preceding the filing of an adoption petition."
That winter recess thing, though, seems to be affecting the courts of appeals; fewer than one hundred decisions there. Let's take a look...
This was supposed to get posted on Monday. So you get two Case Updates in a row; on Monday you'll have another one.
I've harped about the penurious compensation for counsel appointed to represent indigent defendants here in Cuyahoga County, but we're living in the lap of luxury compared to our counterparts in Alabama. That state imposes few qualifications on training or experience of lawyers appointed to represent defendants facing the death penalty, and caps their fees at $1,000. After conviction, a capital defendant is not entitled to any state-funded representation, unlike the situation in most other states. Lawyers from various mega-firms, intent on burnishing their pro bono credentials, have stepped into the gap, and Cory Maples was the beneficiary of that: two junior lawyers from the firm of Sullivan & Cromwell filed a petition for post-conviction relief, arguing that Maples' trial lawyers were ineffective.
That claim was rejected, and the clerk sent the notice of the ruling off the S&C attorneys, and a copy to local counsel as well. The latter did nothing, assuming that the big-city lawyers were taking care of it. They weren't; the lawyers had left the firm, without letting Maples know, or having the firm designate replacements. The envelope to those lawyers was returned to the clerk, unopened. He did nothing, either. When the law firm finally caught up with the error, it tried to appeal the decision, but the time had run, and the Alabama courts refused to consider it. The lawyers tried to take it into habeas, but the district and circuit court denied it, holding that Maples had defaulted on his state appeal without cause, precluding Federal review.
That somebody could wind up being executed over something like this is something Franz Kafka couldn't have dreamed of, and seven of the nine justices on the US Supreme Court agreed last week in Maples v. Thomas. Alito grudgingly: he concurs on the basis that this was a "perfect storm" of misfortune for Maples, rather than emblematic of a system that compensates attorneys for the hundreds of hours of work that a capital case requires less than a garage charges to repair the average fender-bender. Scalia and Thomas not at all: to them, the "primacy" of the Alabama courts, and their right to make whatever damned rules they want, is more important than Maples' chance of avoiding the gurney.
Down in Columbus, an important criminal decision in State v. Gould, although not nearly as important as it could have been. Gould was a 4th Amendment case, and as I explained in my review of the oral argument, the big issue was the State's contention that the Supreme Court's decision in Herring v. US had ushered in a new era in search and seizure law: a good faith exception applied to warrantless searches. (The Court had created the good faith exception for searches conducted with a warrant in a 1984 case.) As I also explained, this was pretty much bullshit, but the court skipped over the whole thing, deciding the case solely on the basis of existing law a defendant's right to privacy in property he's abandoned. We'll take a closer look at that next week.
Meantime, let's take a look at what happened in the courts of appeals last week.
At common law, any trespass against a chattel (personal property) constituted a tort, but under modern law, one has to show actual damage as well. I'm guessing that you've gone your entire legal career without having to know that, but it's essential to understanding the Supreme Court's decision in US v. Jones, holding that the police had to secure a warrant before attaching a GPS device to a car and using it to monitor the car's movements over a period of time. The conclusion was unanimous, but the two major opinions offered radically different ideas of why that was and what the 4th Amendment was intended to do.
No, not Charles; Manson v. Brathwaite, the last US Supreme Court decision addressing the issue of eyewitness identification, which held that an in-court identification could be suppressed if it was the product of a pretrial identification process that was so suggestive it could lead to an irreparable likelihood of misidentification. In the opinion in the latest case on that issue, last week's decision in Perry v. New Hampshire, Justice Sotomayor details the legal history of the issue -- the Supreme Court's decisions in US v. Wade, Gilbert v. California, Stovall v. Denno, and Neil v. Biggers -- in which the Court initially outlined the nature of the problems with eyewitness identification. She then highlights the empirical research that's been done on the subject in the 30+ years since those decisions:
Study after study demonstrates that eyewitness recollections are highly susceptible to distortion by postevent information or social cues; that jurors routinely overestimate the accuracy of eyewitness identifications; that jurors place the greatest weight on eyewitness confidence in assessing identifications even though confidence is a poor gauge of accuracy; and that suggestiveness can stem from sources beyond police-orchestrated procedures.
Brevity is the soul of wit, and it goes a long way in appellate opinions, too. In this week's batch of decisions from the 8th, we find one extreme with the 43-page opus in State v. Bolton (which we'll talk about on Thursday), and the other in State v. Garvin, which dispenses of an allied-offense argument in a tidy two pages. That's aided by the fact that the State conceded the lower court should have determined whether the two offenses, sexual battery and gross sexual imposition, were indeed allied, and asked for the case to be remanded for that purpose. Still, last week the court was confronted with pretty much the same situation in State v. Venes -- the prosecution conceded error in the trial court's failure to advise a defendant of his right to compulsory process -- yet it still resulted in a six-page opinion, prompting me to uncharitably opine that perhaps the compensation rate for appellate judges had been changed to payment by the page. I'm not suggesting that this was responsible for the court's new minimalist approach in writing opinions, but as the one self-designated to read them, I welcome it. Then again, I'm sure the judges on the 8th would welcome it if I took a more minimalist approach in my brief-writing or my bloviations during oral argument. Fair's fair.
Despite the generally-accepted observation that a committee is a dark alley down which ideas are lured to be strangled, the penchant for addressing any problem by throwing some people in room and hoping they can resolve it is irresistible. That's what we do to figure out how to solve Social Security's funding problems, reduce the Federal debt, close military bases, and fix the death penalty.
Hold it, what was that last one? Yep. Over the past several years, the American Bar Assocation has been evaluating the death penalty systems in each state. Their evaluation of Ohio's was completed in 2007, and resulted in a 495-page report finding fault in a variety of areas. After chewing on that for four years, the Ohio Supreme Court established a "task force" to review the administration of the state's death penalty last November.
Judging from the nature of the problem -- you don't come up with a 495-page report if there's just some fine tuning that's necessary -- and from the two meetings that have been held so far, nobody should get their hopes up that Ohio's system for killing people is going to become a model for others to emulate.
Famous last words run the gamut from the combative ("A king should die standing" -- Louis XVIII) to the poetic ("I must go in, the fog is rising" -- Emily Dickinson) to the comic ("Either that wallpaper goes, or I do" -- Oscar Wilde). Cognizance of the importance of one's last utterance is perhaps best captured by Pancho Villa's: "Don't let it end like this. Tell them I said something."
Sharieff Mapp's last words probably won't make any lists; they were, "I thought you was a bitch standing there." The man he said them to, Andre Wilson, was standing outside the Honey Do Lounge one night with two women, when Mapp came up and complimented the trio on being a "nice-looking group of females" before realizing his mistaken inclusion of Wilson. The latter took umbrage, retreated to his car and returned with a pistol, which he promptly used to kill Mapp. State v. Wilson, his appeal from his resulting conviction of aggravated murder, was one of the 16 criminal decisions handed down by the 8th since the holidays, and it didn't go well. The eleven -- count'em, eleven -- assignments went for naught.
Ah, nothing like a new year. Amazing how much everything changes just because a calendar page has flipped. Now when I go to court, the other attorneys arrive right on time and the judge promptly takes the bench. A few weeks ago I'd have five pretrials in a morning and walk out of the courthouse at noon having accomplished nothing other than rescheduling those five cases for a future pretrial. Not anymore; now, those cases are quickly disposed of. Best of all, of course, when I send out my billings, my clients eagerly pay the full amounts due within a week.
Sure that happens.
Well, at least the US Supreme Court starts the New Year with alacrity, issuing seven decisions. We discussed one criminal decision, reversing a death penalty for failure of the prosecutor to provide Brady material, on Friday, and we'll discuss the other, involving eyewitness identification, on Thursday. Another significant decision was a religious freedom case, Hosanna-Tabor Church v. EEOC, which held that the First Amendment bars suits brought by ministers for violation of employment discrimination laws. Chief Justice Roberts' opinion was liberally -- assuming Roberts ever does anything liberally -- sprinkled with references to English law, such as the 1662 Act of Uniformity. I'm guessing that the people who've raised an uproar in the past on the Court's use of "foreign law" -- so much so that some have proposed a constitutional amendment to ban the practice -- won't find this one bothersome. Speaking of which, the 10th Circuit recently upheld a district court's injunction barring enforcement of an amendment to the Oklahoma constitution which bans courts from considering legal precepts of other nations and cultures, specifically citing sharia, or Islamic, law. So I guess it's only a matter of time before the female denizens of Tulsa and Oklahoma City will be forced to wear burqas anytime they venture outside.
The Ohio Supreme Court also issued a number of opinions, several of them involving extraordinary writs, but if you came to this blog with the expectation of learning about a writ quo warranto, go back down the road about a mile and turn right instead of left. Somewhat interesting was State ex rel. Engelhart v. Russo, which was related to the 8th District's decision two weeks ago in In re Carothers. Engelhart arose out of a case in which the trial court granted a motion for summary judgment for the defendant, entering notice of it on the court's electronic docket, whereupon the plaintiff's lawyer rushed down and filed a voluntary dismissal, which was filed at 3:48 PM, 17 minutes before the clerk actually journalized the summary judgment decision. The judge went bonkers, hitting the lawyer up for $1,200 in sanctions. In Carothers, the court held that this was improper, because the time that the clerk filed the judge's entry, not the time she signed it, controlled, and since the voluntary dismissal was filed first, the court was divested of any further jurisdiction. Oddly, a different panel of the 8th had come to a contrary conclusion back in May, denying writs of prohibition, but the Supreme Court comes to the same conclusion that the Carothers panel did, and reverses. Several years back, when I was doing more civil stuff here, I opined that the voluntary dismissal rule might be changed to be similar to the Federal rule, which allows a judge to impose sanctions, like paying the cost of the attorney fees incurred in the previous proceeding, before a plaintiff can refile. Yet another thing I was right about...
The courts of appeals are always right -- until, as the 8th found out, the Supreme Court says otherwise -- so let's take a look what happened there in the past two weeks...
Last March I told you about Walter Triplett, who'd been convicted of involuntary manslaughter and felonious assault for throwing a single punch that knocked Michael Corrado to the pavement, fracturing his skull and killing him. That was reversed because the judge had screwed up the instructions on self-defense, but I found much more interesting the opinion's discussion of the question of whether Triplett had used "deadly force." The 8th District found that deadly force is defined as force that carries a "substantial risk" that it will result in death, and a single punch doesn't do that.
As I enthused at the time, this was a "game-changer." Triplett would be entitled to a charge on self-defense using non-deadly force, which is much less stringent than the charge regarding deadly force, and he might even be entitled to a charge-down to simple assault. I breathlessly concluded, "the odds of Triplett having to do anything close to eighteen years" -- what he'd gotten in his initial trial -- "for his unlucky punch just got a lot longer."
This is why you shouldn't trust my predictions even if it's about yesterday's weather. Well, actually, I was right: he didn't get eighteen years. He was retried in October, and this time the jury convicted him of involuntary manslaughter, instead of hanging on that charge as they did the last time, so he wound up having the judge max him for that and the RVO spec, then stack them together for twenty years in prison. I have no idea what happened in trial, but I'll check it out and see what happened on the self-defense issue the second time around. It could be that it had nothing to do with the result; as I pointed out in my post about the reversal, Triplett wasn't a very sympathetic figure.
Juan Smith had better luck. Back in November, I told you about the oral argument in his case before the US Supreme Court. Smith had been convicted of capital murder in New Orleans based solely upon the testimony of a single eyewitness, Larry Boatner . The police notes, which were withheld by the prosecution at trial, showed that Boatner had repeatedly told the detectives that he hadn't seen the faces of any of the the perpetrators, couldn't identify them, and "wouldn't know them if he saw them." Arguing that the failure to disclose the material wasn't prejudicial was a hard sell, given that Boatner's testimony was the only evidence against Smith, but at least it was tenable: the prosecutor might have argued that the jury could have discounted Boatner's prior statements, believing that his initial inability was based on fear and the trauma of the event. Instead, the prosecutor insisted that the statements weren't material, a contention that even Scalia found ridiculous; the argument concluded with Kagan pointedly asking whether her office had considered confessing error in the case.
As could be expected, the Court last week reversed Smith's conviction. The majority opinion, written by the Chief Justice, spent only four pages dispensing with the state's argument, easily concluding that Boatner's earlier statements should have been disclosed. The more interesting aspect of the case was Thomas' lone dissent, in which he spent almost five times as much effort -- nineteen pages -- in explaining why the prior statements were irrelevant, and needn't have been disclosed.
Three points about that. Unlike some of my liberal colleagues, I do not regard Thomas as a cipher on the court; his views on federalism, for example, are probably as well-developed and cogent as anyone's on the Court. (Not saying they're right, mind you.) And his opinions are almost always meticulously crafted; his work in the Crawford jurisprudence is very consistent and, again, well thought out. But his dissent here is simply indefensible. I've often felt that the primary requirement for a good judge -- trial or appellate -- is a sense of fairness, and I'm sorry, there's no way that you can look at Smith's case and conclude that he got a fair trial when the jury never knew that the only eyewitness in the case had repeatedly told police he couldn't make an identification.
Second, there's an interesting subtext here. Last spring, in Connick v. Thompson (discussed here), the Court reversed a $14 million dollar judgment against the New Orleans District Attorney's office, the same one which prosecuted Juan Smith. Thompson had obtained the judgment because the prosecutor's office had -- wait for it -- withheld evidence that resulted in Thompson being wrongfully convicted of a murder and coming with 48 hours of being executed. The Court, in a 5-4 decision, found that there was no evidence of "repeated" Brady violations sufficient to place the prosecutor on notice that he had to provide better training for his charges on that subject. The decision prompted a bitter dissent from Ginsburg, so much so that she took the unusual step of reading the dissent from the bench. Guess who was the author of the majority opinion in Connick? That's right, Thomas.
Finally, the Court handed down another opinion last week involving eyewitnesses, Perry v. New Hampshire. Basically, Perry (previewed here) held that there was no due process violation in an identification procedure which wasn't orchestrated by the police, even though the procedure could well have been suggestive. (Perry had been stopped by the police on suspicion of burglary; at the moment he was standing in the parking lot in the company of a police officer, a woman who claimed to have witnessed the crime looked out the window of her apartment and saw him, and identified him as the burglar.) That opinion was also 8-1, but this time it was Sotomayor dissenting. She discussed the extensive research on eyewitness identification, detailed in New Jersey Supreme Court decision I briefly discussed here, that's occurred in the 30-some years since the Court last addressed the issue.
In his dissent in Smith, Thomas points out how months after the crime, Boatner saw a picture of Smith and said, "This is it. I'll never forget that face," and emphasizes how confident Boatner was in his identification. Yet as Brandon Garrett, author of the book "Convicting the Innocent," points out, "in reading the trials of the first 250 people exonerated by DNA tests, I saw countless examples of eyewitnesses who were certain at trial and claimed they would never forget that face -- but DNA tests showed they were wrong." Indeed, the sociological research discussed in the New Jersey Supreme Court case has shown that certainty of identification has almost no correlation with accuracy.
We'll catch up with Perry v. New Hampshire next week.
Lewis Katz was my criminal procedure professor in law school, and Burt Griffin was a judge up here that I knew quite well. Both are great guys, and very smart people, too. They both participated in the commission that drafted the sentencing reforms in SB 2 in 1995, and after that was passed, they had a pretty nice gig going, doing seminars on how sentencing worked under the new law, and also writing a comprehensive two-volume manual on the subject. That all came crashing down when the Supreme Court decided State v. Foster in 2006, striking down much of the law.
Well, it may be time for Lew and Burt to get together for another road trip, because HB 86 revived the statutes pertaining to consecutive sentences, and it's a brand new world out there.
It was the best of opinions, it was the worst of opinions... Well, now you know what it would be like if Charles Dickens had decided to become a lawyer instead of devoting his life to describing human depravity and suffering on a scale I haven't seen since the last time I went over to the Justice Center.
Actually, there weren't any "worst of" opinions; there were some good and bad, but generally the court continued its fine work on several issues, like the 4th Amendment and registration and notification prosecutions of sex offenders, and expanded that into other areas, especially the use of 404(B) evidence, where it turned out some of the most thoughtful decisions to come down anywhere in quite a while.
Chapter 1: The Comma is Your Friend
The comma is a perfectly acceptable form of punctuation. As far as I know, there's no shortage of them. But the Ohio legislature's decision not to insert one into 2929.13(B)(1)(a)(i) could have some significant repercussions.
Hey, look, I feel your pain: anytime I read a paragraph which refers to the sub-sub-sub-section of a legislative provision, my eyes glaze over. But stick with me for a minute.
I'm going to do something a little different from what I've done in past years. I always do a recap of the U.S. Supreme Court's decisions when the term ends in June of each year, but I've never done anything like that for state cases. That's what I'm going to do now. I'm going to give you the good and the bad -- we'll stay away from the ugly -- but I'll concentrate on the ones that you should be aware of if you're a criminal defense attorney. So let's get started.
The judge has carefully questioned each juror during voir dire: "You're willing, Mr. Jones, to follow the law as I give it to you?" After all, it's a marijuana trafficking case -- nine dime bags -- and jurors might not have regarded that as being among the more serious offenses. (Which is what happened a few years back in State v. Williams, where the 8th District affirmed the trial judge's declaration of a mistrial and the empaneling of a new jury because the original venire "wasn't taking marijuana seriously enough"; the opinion noted that two of the jurors expressed the view that marijuana should be legal, and "fellow prospective jurors were openly laughing between themselves at the prospect of serving on the case.") The prosecutor, of course, has followed up on that: "So, Ms. Polanski, you understand that if I prove to you that the defendant is guilty beyond a reasonable doubt, you have to return a verdict of guilty, even though you may disagree with the law that he's charged with violating?" All of the jurors solemnly nod their heads in agreement with this.
So everybody's pretty much surprised when you stand up and tell the jury, "What the judge and the prosecutor just told you is bullshit. If you don't think that the law is proper, you have the complete right and power to acquit my client."
I used to say that while the 8th District was the best court in the state, if not the country, on 4th Amendment issues, its work on hearsay issues was, shall we say, less than stellar. My advice was that if you were charged with a crime up here, don't worry about what the police found, because that would get thrown out, but everything anybody ever said about you or the crime would come in. After the decision last week in State v. Clark, I might have to reassess that view.
Whatever Christmas you had was probably better than James Ingram's. He was convicted of stealing $11,000 from his grandmother, based on the fact that (A) he knew where grandma kept the money, and had a key to her house, (B) there was no sign of break-in when the grandmother found money missing, (C) shortly after the money went missing, Ingram opened an account with a deposit of $9,900, despite (D) never having held a job, as best anyone can figure. He appeals, claiming that the verdict of not guilty of burglary was inconsistent with the finding of guilty of theft. It's not, and it wouldn't really matter if it were; as the court explains in State v. Ingram, the law on that is that an inconsistency in a verdict does not arise out of inconsistent responses to different counts, but only arises out of inconsistent responses to the same count. That happens from time to time, I suppose, although offhand I can't remember the last time it did.
Okay, I lied. No pictures. Just hard-hitting analysis of the major decisions of the Ohio Supreme Court over the past three weeks.
Of which there was exactly one, State v. Carlisle, which merits discussion. Oh, the things we learn. I'd always thought that a judge had the ability to modify her sentence up until the time the defendant was shipped off to prison. So did Jack Carlisle; he was out on bond from his three-year sentence while he appealed his kidnapping conviction, but when that was affirmed, he persuaded the judge to change the sentence to community control sanctions because of his serious health problems, which included required dialysis three times a week. There are indeed cases which support Carlisle's argument, but they were based on a statute that's since been repealed. I didn't get the memo, but neither did anyone else: neither the appellate court nor the litigants picked up on it. Bottom line: a felony sentence is final upon the issuance of the final order.
One other decision of note to those thinking of running for office. In In re Judicial Complaint, a commission of five judges sanctions attorney Mark Davis for judicial campaign literature boasting that he had obtained "six college degrees in seven years," three times the actual number he'd earned. Left unexplained in the opinion is why Davis thought that claiming to have six college degrees would impress an electorate which, given the current climate of anti-intellectualism, looks askance at candidates who are polysyllabic.
In D.C., the Court's been out of session a week longer than I was, and oral arguments don't resume until next Monday. The highlight will probably be FCC v. ABC Television, which features another go-around on the FCC's "indecency" policy, this one posing the question of whether ABC could be fined for an NYPD Blue episode in which a woman's naked buttocks, and the outline of her naked breast, were shown. As Elmer Fudd said in Apocalypse Now, "the howuh... the howuh..."
Speaking of horrors, my BFF Lexis informs me that Ohio's appellate courts were not taking time off, churning out some 270 decisions, so let's take a look...
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