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8th District - Year in Review

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.

One area in which no improvement occurred was sentencing, so we'll get that out of the way first.  Although the court has resolutely adhered to the (false) idea that Foster gave trial courts unfettered discretion in sentencing, there was a glimmer of hope on the issue of disproportionality, with the court holding in both State v. Nimmer and State v. Mahan that the purpose of such review was to determine whether a particular sentence fell outside "the mainsteam of judicial practice."  Alas, Mahan shows the limitations of that theory:  Mahan was caught up in a child porn sweep, and his lawyers meticulously compiled the records of each of the others indicted as a result of the same investigation, and showed that each had gotten a sentence of somewhere between probation and four years in prison.  Mahan got 20, but on appeal his claim of disproportionality foundered on the fact that another similar defendant had also gotten twenty years.  From, it turns out, the same judge, who was forced off the bench by the big corruption probe up here.  So, at least for sentencing in child porn cases, the "mainstream of judicial practice" has been established by a judge who now resides in a Federal prison.  Another glimmer of hope appeared toward the end of the year in State v. Thomas, where the defendant had gotten 93 years in another porn/molestation case; the concurring opinion found this to be so excessive as to constitute an abuse of discretion, and while the court remanded it on an allied offense issue the rest of the panel looked similarly askance.  It's probably coming back on the same sentence, so let's see what happens.

The court continued to bedevil prosecutors on 4th Amendment and AWA cases.  As I mentioned on Monday, the court has consistently held that AWA provisions regarding failure to register, verify, or notify can't be applied to Megan's Law offenders, even if the the requirements would be the same under both.  That issue's headed to the Supreme Court.  What's probably not is any decisions on the 4th Amendment.  The court followed up its earlier decision in State v. Toles, in which they held that the police must see an actual hand-to-hand transaction -- that is, something being exchanged -- before they have reasonable suspicion to make a stop, with State v. Carmichael, upholding the trial judge's determination that they have to see what was being exchanged.  I've got some problems with this last one myself, but it's the law, so take advantage of it.  The Supreme Court's not going to stop you; it denied review in both Toles and Carmichael.  Two other excellent search and seizure decisions were State v. Dent, holding that police can't rely on the inventory search exception where the defendant's car is legally parked, and State v. Miller, finding that an affidavit in support of search warrant based on a dog sniff must establish the training and reliability of the drug-detecting dog.

The court did falter along the way, holding in State v. Freeman (discussed here) that the police hadn't themselves created "exigent circumstances" by standing on the porch when the defendant exited, and then breaking through the door when he slammed it.  That seemed excessive, even in light of the US Supreme Court decision earlier in the year, Kentucky v. King (discussed here), which had held that police didn't create the exigent circumstances by knocking on a door and announcing themselves, then rushing in when they heard "noises" that they interpreted might be people destroying evidence.  The court did make up for it somewhat by holding in State v. Jefferson that a lawyer had rendered ineffective assistance by failing to file a motion to suppress a GPS search.  That essentially made it the law in the 8th District that a GPS search without a warrant was impermissible, but the court was probably just ahead of the curve on that; from the oral argument on the issue before the US Supreme Court (discussed here), it's likely that's going to be the outcome there as well.

Speaking of drugs (which we just about always are when the 4th Amendment is the subject), the court also handed down some nice decisions in trafficking cases under the "preparation for distribution" section.  In State v. Collins, the court noted that that section "requires some evidence that the offender actually prepares a drug for shipment, or ships a drug, or transports a drug, or delivers a drug, or prepares for distribution a drug, or actually distributes a controlled substance"; on reconsideration, it held that evidence that the defendant received two packages of marijuana weighing a total of 24 pounds was not sufficient to prove trafficking, since the act of receiving is not one of enumerated actions for prep for sale.

There were several other decisions of note.  The court implicitly overruled a long line of cases holding that merely seeking medical treatment was sufficient to establish physical harm in State v. CloptonOn the other hand, while the court has been very hospitable to motions to vacate guilty pleas because of subsequent immigration consequences, that hospitality has declined despite the Supreme Court's decision in Padilla v. Kentucky two years ago that a lawyer renders ineffective assistance if he doesn't correctly advise his client of those consequences.  The difference is that while Kentucky doesn't require the trial court to make any advisement about immigration consequences, Ohio does; as typified by State v. Velazquez, the trial court's advisement is going to absolve the failure of the attorney to do that.  But the statutory advisement does not correct the problem of actual misadvice by an attorney, at least according to the 10th District in State v. Yahya.

The court saved its best work, though, for 404(B) evidence.  There's long been a tendency to believe that the "scheme, pattern or plan" exception under 404(B) simply requires the state to show that the defendant committed a prior act similar to the one for which he's on trial.  Charged with molesting a 14-year-0ld?  That makes evidence that he molested a 16-year-old admissible.  As the court explained in State v. Ogletree (discussed here), that's not the way it works:  "scheme, plan, or system" evidence is admissible only if it's an integral part of the background to the charged offense, or it's so unique -- the "behavioral fingerprint" theory -- that it's admissible to show identity.  The court strengthened that point in its en banc decision in State v. Williams (discussed here), noting that such evidence isn't admissible where identity isn't at issue:  where the question is not who committed the crime, but whether the crime was committed at all.  Even where 404(B) evidence is deemed admissible, the trial court must still determine that its probative value outweighs its prejudicial impact, as the court stressed in State v. Sutton, finding that evidence the defendant charged with burglary had committed other such crimes was so prejudicial that even if it was admissible under 404(B), it shouldn't have been allowed in.  And Williams makes fairly clear that a defendant is entitled to a pretrial hearing on the admissibility of 404(B) evidence.

Finally, the court provided some instruction on something that we learned in law school, but haven't come across since:  the concept of "inchoate" crimes, or, more exactly, when has the defendant taken sufficient steps toward the commission of a crime that he can be punished for an attempt to commit it?  That lesson was taught in State v. Fowler, where Fowler, eschewing subtlety, approached a ten-year-old boy at a playground and told him that he'd give him $100 if the boy found a "little girl" Fowler could have sex with.  The boy instead told various other people there of the offer, and they chased Fowler down and beat him up.  When the police arrived, they found Fowler sitting dazed on the curb, condoms and candy from the bag he'd been carrying strewn around the vicinity.  Yep, that was enough to warrant a conviction for attempted solicitation, says the court.

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