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What's Up in the 8th

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.

As I've mentioned, working as assigned counsel is not a road to riches, and it's even worse in municipal court, where fees are usually capped at a few hundred bucks.  For the lawyer in Parma v. Battaia, undoubtedly a greater challenge than the miserly rate of compensation was resisting the urge to strangle his client with his bare hands when he found that (a) the client had been secretly tape-recording all their conversations, and (b) the client had filed a grievance against him with the bar association.  This came out on the day of trial, and the judge offered Battaia a choice:

Now, being over 18 you’re going to make a decision. The person that you, it seems, intentionally tried to alienate, do you want him to represent you? Or do you want to dismiss him, and represent yourself at this time?

Battaia wasn't the quickest bunny in the forest -- he'd managed to get himself cited for drunk and disorderly twice in the same night, and when they arrested him, he wound up with a criminal damaging charge because he urinated on the cell door and screwed up the electronics -- and it's doubtful that any decision he made under these circumstances would be the right one, but he opted to try it himself, with predictable results.  But it all comes back, because waiver of counsel for trial is a lot different than waiver of counsel for a plea; for the former, the judge has to to engage in a lengthy colloquy with the defendant to ensure that he understands the charges, possible defenses, and the perils of self-representation.

I've written before that while the general reversal rate for criminal defendants is about 15%, it goes up to around 50% in search and seizure cases in the 8th, and probably hovers around 70% for appeals from municipal courts.  That's confirmed by this week's batch:  Battaia was one of three muni court decisions, and all were reversed.  Mayfield Heights v. Brown involved the identical situation to Battaia, with the identical result.  In Cleveland Heights v. Roland, the court vacates a plea to domestic violence because the judge had failed to advise the defendant, a resident alien, of the immigration consequences of the plea.

As for that 50% rate in search and seizure cases, the prosecution stays on the right side of that figure in State v. Booker, which also demonstrates the importance of selecting the appropriate window treatments for one's abode.  The Euclid police went to Booker's apartment to investigate a complaint that he had harassed a security guard there, and as they were walking toward the door, they saw Booker through an open window, sitting on his couch, putting marijuana into small baggies.

That certainly gave the police probable cause to believe that a crime was being committed, but did it give them the right to enter the apartment under the "exigent circumstances" exception to the warrant requirement?  One such exigency allowing entry would be the imminent destruction of evidence, but to rely on that they have to show that Booker was aware that the police were there, so that he would have had a reason to destroy the evidence.  That wasn't the case; Booker was blithely unaware of their presence, so "the detectives had ample opportunity to secure the premises and obtain a valid warrant without risking retrieval of the evidence."  Booker doesn't get off, though, because the court finds he consented to the detectives' entry:  according to them, they knocked on the door, Booker opened it, and stepped aside when they asked to enter.  Booker's story is vastly different -- the detectives entered without knocking and with guns drawn -- but the trial court bought the cops' version, so that's what the panel is stuck with.

But let's go back to that "securing the premises and obtaining a warrant."  Last year, in Kentucky v. King (discussed here), the Supreme Court confronted a situation where police, chasing a drug dealer, knocked on an apartment door and then, when they heard movements inside the apartment which sounded like people destroying evidence, broke down the door and rushed in.  The Kentucky courts had held that the police couldn't rely on the exigent circumstances exception because they'd created the exigency by knocking on the door.  The Supreme Court reversed, finding that the police hadn't created the exigency:  they weren't doing anything forbidden by the 4th Amendment by simply knocking on the door.

So what if the cops in Booker had just knocked on the door?  At that point, Booker would have been aware of the police presence, and the police could rightfully claim at that point that Booker's awareness would've created a risk of destruction of evidence, and thus their warrantless (and consentless) entry into the apartment would be lawful.

Lastly, there are a number of criminal attorneys who also handle personal injury and other civil cases on the side, so a couple of warning shots across the bow this week.   Sanders v. Gabbardpresents the latest lesson in how forlorn is the task of getting a jury to give a plaintiff money for soft-tissue injuries.  Sanders comes into court with $53,597 in medical expenses and $9,460 in lost wages stemming from a rear-ender, and walks out with an award of $2,894.86 for medical expenses only.  She appeals the trial judge's denial of her motion for new trial, and there's some case law which holds that if the jury awards something for medical expenses, it also has to award something for pain and suffering.  But there's also case law to the contrary, and the 8th adds to the latter body of work, and affirms.

One of things you don't worry about in criminal law is depositions, but you do in civil work, and scheduling them can be a bear, especially if opposing counsel isn't cooperative.  A word of caution if you choose to be that uncooperative counsel:  when the other side schedules a deposition, you can't just call them up the day before and tell them you and your client aren't going to be there.  That's what the lawyers did in Borsellino v. Smythe Cramer, and for that their client was hit up for about $3,000 in sanctions.  They protested that the client was a neurosurgeon and very, very busy, but that went nowhere, in light of the fact that the defendant's attorneys had sent numerous letters over a three-month asking for mutually-agreeable dates, all with no response, and that the final deposition date had been set a month earlier.  Calling up and canceling the day before is not an option; and that point, you need to get a protective order.  The bottom line is that you avoid a whole lot of problems, and an angry client, by just picking up the phone and playing nice.


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