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March 2012 Archives


I spent the last couple days talking about the Supreme Court decisions last week in Missouri v. Frye and Hafler v. Cooper, in which the Supreme Court substantially expanded the concept of ineffective assistance of counsel in the realm of plea bargaining.  I've talked about how courts, prosecutors, and defense attorneys will react to the decisions, and how they will impact the criminal justice system.  Today I want to talk about something else:   how they'll impact our relationship with our clients.

Continue reading "CYA" »

Frye and Cooper: the aftermath

Your client tells you up front that the charges against him are bogus.  "Don't even talk to me about a deal," he tells you.  "I want a trial."  At the first pretrial, the prosecutor admits he'll have a tough time making a felony case.  "I can't get it dismissed," he tells you, "but I can probably get you a misdemeanor if your guy will plead to it."  Do you tell your client about the plea offer?

I might have given a different answer two weeks ago.

Continue reading "Frye and Cooper: the aftermath" »

"A system of pleas..."

Nobody disputed that Anthony Cooper got bum advice from his lawyer.  Cooper was charged with murder, and was looking at 15 to 30 years in prison.  The prosecution offered him a deal which would've resulted in a recommendation of 4 to 7 years, but Cooper turned it down on the advice of his lawyer, who believed that the law precluded Cooper's conviction because the victim had been shot below the waist.  Cooper went to trial instead, and learned to his sorrow that the law didn't preclude his conviction on those facts, his sorrow substantially enhanced by a sentence nearly four times greater than he would've gotten if he'd copped a plea.

The lawyer for Galin Frye made an error of omission, rather than commission.  Frye was charged with driving with a revoked license, which he'd been convicted of doing on three prior occasions.  That made this one a felony, but the prosecution offered to reduce it to a misdemeanor, with a recommended 90-day sentence.  Frye's lawyer never advised him of the offer, and Frye wound up pleading guilty to the felony, and being sentenced to three years in prison.

Last week, in Lafler v. Cooper and Missouri v. Frye, the Supreme Court in twin 5-4 decisions held that both Cooper and Frye had shown their attorneys had rendered ineffective assistance.  We'll take a look at the decisions today, and tomorrow we'll discuss how they could impact the criminal justice system.

Continue reading ""A system of pleas..."" »

What's Up in the 8th

I have a rule that I won't do an Anders brief if there was a trial.  After all, there's always resort to weight or sufficiency arguments.  That rule was sorely tested last week; I had to write an appeals brief where I had absolutely, positively nothing.

I think I know how the prosecutor who was tasked to write the brief in State v. Durden felt.

Continue reading "What's Up in the 8th" »

Case Update

The big news from DC was the crowds beginning to line up for the showing of The Hunger Games -- whoops, no, they were lining up for the oral arguments, some as early as Friday morning, for the oral arguments today in the Supreme Court on the constitutionality of the Affordable Care Act.  This morning, the Court will hear 90 minutes of argument on whether it can even review the key issue, the "individual mandate" requiring everyone to purchase health insurance.  The provision doesn't take effect until 2014, which raises the question of whether anyone has standing to contest it until then.  The mandate itself is the subject of two hours of argument on Tuesday, and on Wednesday, another ninety minutes are scheduled for the issue of severability -- that is, can the Act survive if the Court strikes down the mandate?  A rare afternoon session is scheduled that day for the final ninety minutes of argument, this time over the Act's provisions expanding the scope of Medicaid services that have to be provided by the states.

It's hard to overstate the constitutional and political ramifications of the Court's decision, expected by the end of its term in June.  It's certainly the most important decision on the balance between the federal and state governments since the New Deal, and a decision striking down the law could take that issue out of the presidential election, while a decision upholding it could make that the central issue in the election.  It continues to fascinate me that in a democracy, decisions of that magnitude are made by the least democratic branch of government.

Emphasizing the importance the Court plays, it handed down two decisions last week that could have momentous effects on the way criminal law is practiced, specifically on ineffective assistance of counsel with respect to plea bargaining.  We'll discuss those in more detail on Wednesday and Thursday.

In Columbus, the only criminal decision of note was State v. Qualls.  Back when I started this blog, and for several years thereafter, the law on post-release controls was a quagmire.  The simplest mistake -- the judge telling a defendant that he faced "up to three years" of post-release control, instead of a mandatory three -- rendered the judgment void, requiring a de novo resentencing, with defendants being transported back from prisons just days before their release so that the purely ministerial function of advising them of PRC could be done properly.  Finally, in State v. Fischer (discussed here), the court was faced with the logical consequence of the argument that failure to properly impose PRC rendered the judgment void:  a void judgment, Fischer argued, rendered any appeal a nullity, so after he was resentenced to include PRC, he was entitled to a brand new appeal, in which he could avoid the res judicata effects of the previous one.  The court blinked, declaring that PRC improprieties rendered only that portion of the judgment void.  That made things better, but still led to resentencings, so in Qualls the court decides that the problem can be rectified by a simple nunc pro tunc entry.  Trial judges in Ohio rejoice.

Let's see what the appellate judges in Ohio have been doing...

Continue reading "Case Update" »

Allied offenses: what standard of review?

On the night of June 22, 2009, Jason Williams decided to get his creep on.  His eight-year-old niece had taken him behind her grandmother's car to show him a bumper sticker.  He pulled up her skirt and underwear, put his mouth on her "private," then pulled her by the arm into the garage and raped her.  That led to Williams' conviction for two counts of rape,  three counts of gross sexual imposition, and one count of kidnapping with a sexual motivation specification. 

Now, you make the call:  were the kidnapping and rapes allied offenses?  The trial judge concluded that they weren't, but a year ago, in State v. Williams, the 8th District came to a contrary conclusion.  So on Wednesday everybody got together for the oral argument before the Ohio Supreme Court to figure out who was right.

Continue reading "Allied offenses: what standard of review?" »

Drawing lines

Kuntrell Jackson was walking through the 'hood with a cousin and another friend when the trio starting talking about robbing a local video store, an endeavor for which the chances of success were augmented by the fact that the cousin was carrying a shotgun.  "Success" is a fleeting concept, in this case:  they fled without any money when the cousin killed the clerk.  For his part, Jackson was convicted of aggravated murder and aggravated robbery, and given the mandatory sentence of life imprisonment without possibility of parole.  All but the most liberal of us aren't going to get overly worked up about that.

Would that change if I told you that the robbery took place less than three weeks after Kuntrell Jackson's 14th birthday?

Continue reading "Drawing lines" »

Dueling Panels

There are four judges on the 4th District Court of Appeals.  That means there are only four possible combinations of judges for any particular panel.  The 9th District has five judges, providing ten different possible combinations.  The 8th District has 12, which means there are 220 different panels you can wind up with.  That can lead to problems; back in 2005, for example, two different panels of the 8th District came down with two diametrically opposed results in two separate decisions on the same day. 

Michael Sutton and James Dzelajlija found out last week that they would've been better off in the 4th or 9th Districts.

Continue reading "Dueling Panels" »

What's Up in the 8th

So what has the 8th District wraught in the past two weeks?  Several defendants fail to navigate the nuances of social networking, and a couple of other defendants try to disprove F. Scott Fitzgerald's observation that there are no second acts in American lives.

Continue reading "What's Up in the 8th" »

Case Update

No decisions of particular note from SCOTUS, with all eyes focused on the 4½ hours the Court's scheduled for next week's oral arguments in the Health Care Reform cases.  The dog-bites-man story for the week is a poll from Bloomberg which breathlessly relates that three-quarters of the public believes that the Court's decision will be influenced by politics.  The fact that most people will view that cynically is unfortunate, and a reflection of the commonly-held misperception that any issue of constitutional interpretation contains only a single kernel of truth, and justices should be able to ferret it out without allowing their own political beliefs to enter the picture.  This is nonsense, of course.  There are legitimate schools of thought for various interpretive methods, but they all share one thing:  the lack of empirical proof that they're correct.  The Framers gave no more thought to how health care could be affected by the Interstate Commerce Clause than they did to how parabolic microphones and infrared imaging would be treated by the Fourth Amendment.  People who hold the political view that smaller government is better will view the issue differently from those who don't, and the only thing that should surprise us is that if someone would manage to become sufficiently versed in Constitutional law as to merit appointment to the High Court, without ever developing an ideological viewpoint on the role of government.

The big argument this week, though, is whether a state can impose a sentence of life without parole on a juvenile in a homicide case.  I'll have something on that later this week.

Down in Columbus, the big decision was State v. DunnPolice had received a phone call that Dunn was going to commit suicide, spotted his car, and stopped it.  When they removed him from the vehicle, he blurted out that there was a gun in the glove compartment.  Sixteen months later, the prosecution got around to charging him with improper handling of a firearm.  Dunn sought to suppress the stop, and the 2nd District reversed the trial court's denial of the motion.  Twelve years earlier, in Maumee v. Weisner, the Ohio Supreme Court had held that where the police stop a vehicle based solely on a dispatch, the state had to demonstrate at the suppression hearing that the facts precipitating the dispatch justified a reasonable suspicion of criminal activity.  The 2nd District had found fatal the failure of the State to call the dispatcher at the suppression hearing, or present any evidence regarding the call, but the Supreme Court reverses, finding that Maumee is confined to situations involving an investigative stop under Terry, while this case involved a stop under the emergency aid exception to the warrant requirement.

One searches the opinion in vain for any discussion of why the Maumee rule should be limited to Terry stops; the rationale for the rule is to keep the police from stopping people based on anonymous phone calls having no basis, and it's not readily apparent why that wouldn't apply to Dunn's situation.  The court seems more intent on applauding the police -- rightly so -- for their actions, noting darkly that "if the police had not acted, and Dunn had harmed or killed himself, Dunn or his estate could have filed a civil lawsuit against the police for failure to respond to an emergency."  Not without running the risk of sanctions for filing a frivolous lawsuit:  back in 1988, the court firmly rejected the notion that police officers could be civilly sued for failing to respond to an emergency.

There was one more notable Supreme Court decision, in a disciplinary case, and I'll take a quick look at that after we check out what's happened in the courts of appeals over the past two weeks...

Continue reading "Case Update" »

Did this one in August of 2010.

Bullshit lawsuit of the week.  You go to retrieve your father's car, which is in a parking garage.  When you get in, the car blows up, causing you serious injuries.  Turns out it blew up because your half-brother planted a pipe bomb in it, intending to kill your father so he could inherit about $300,000.  You

  • Check Craigslist for "family therapists," because it looks like there's some work to be done here.
  • Figure, "Well, that's $300,000 more for me."
  • Get a lawyer and sue your half-brother for your injuries.

The answer for Preston Scott was "none of the above":   Not precisely, anyway; he got a lawyer and sued his half-brother and the garage, obviously figuring that the garage was the deep pocket here, since the half-brother hadn't gotten the aforementioned $300,000.  In Sigmund v. Starwood Urban Retail, the DC Circuit affirms summary judgment for the garage, deciding that the half-brother's criminal act wasn't sufficiently foreseeable to impose liability:

Solon, the ancient Athenian lawgiver, made no law against patricide because he thought it impossible that anyone could commit so unnatural a crime. Two and a half millennia later, Freud famously claimed the opposite -- that every son harbors murderous impulses toward his father.  In this case, we side with the lawyer not the psychoanalyst.

Time for some girly pictures.  Without the girl, unfortunately.  I've got a subscription to the Victoria's Secret catalogue -- actually, my neighbor does, but he hasn't gotten it in a while -- and apparently they've developed a "Delicious" product line, featuring tank tops (like the one featured at right), skin fragrance, lip gloss, and self-tanning cream, promoted by the Delicious Girl <your joke here>, Miranda Kerr.  (For those of you who find your appetite for photos of beautiful women unsated by this blog -- go figure -- you can find Ms. Kerr's picture here.

Well, if Victoria's Secret spent as much on lawyers as they do on models, they'd know that Fortune Dynamic, Inc., was the "owner of the incontestable trademark DELICIOUS for footwear."  Fortune sued, and although Victoria's Secret won on summary judgment, that was reversed the other day by the 9th Circuit.  The opinion wanders through various areas of anti-trust law, tossing out terms such as "post-purchase confusion," supporting the latter point, whatever its significance might be, by mentioning that several celebrities, including Britney Spears, have been espied wearing the tank top.  If you've ever entertained any fantasies about Ms. Spears, be forewarned that the above link takes indeed takes you to a picture of her adorned in a Delicious tank top, but while in the process of leaving her latest rehab stint; the photo does nothing beside prove conclusively that there is such a thing as bad publicity.

While we're on the subject of footwear, a new, and probably one-time, feature at The Briefcase:  the Fashion Tip.   Shoes are a big thing for women:  I don't know any woman who has fewer than twenty-five of them.  Well, ladies, you're wasting time and money.  I am unabashedly heterosexual, my first proctology examination convincing me beyond the shadow of a doubt that to the extent sexual orientation is a choice, I made the correct one.  I have had any number of discussions about the fair sex with other unabashedly heterosexual males, and I have yet to hear a single one of them say, "Wow, did you see the shoes on that broad?"

See you on Monday.

And so I will.

Continue reading "" »

Truth in advertising

I posted this in June of 2009. 

Andy Warhol once remarked that, in the future, everyone will be famous for 15 minutes.  My own take is that in the future, everyone will have their own blog.  Or at least every lawyer.  When I started this blog over three years ago, there weren't more than a few others in Ohio; now there are dozens, with several targeted at the criminal defense bar.  Even the big law firms are getting into the act; as Legal Blog Watch notes, over 40% of the top 200 firms now have blogs, up 110% from just two years ago.

Of course, there's a downside:  if you're not careful, you can wind up like Kirk Bernard, a Seattle lawyer whose blogging efforts won him the Asshat Lawyer of the Day award.  That's the fifth hit that comes up when you Google Bernard's name, and is bracketed by another one asking rhetorically whether he's a thief, and one labeling him a slimeball.

Kirk's sin was being a little too aggressive, marketing-wise.  His blogging style differs substantially from mine; instead of insight leavened with heavy doses of snark, Bernard's hews to a strictly formulaic style in which news of some tragic automobile accident (apparently taken verbatim from press reports) is followed by notice that Kirk's firm handles exactly that kind of case.  This reached a nadir the other week with the following post:

A five-year-old Vancouver boy and his parents were in a serious car accident in Washington on Sunday near Chelan. The boy is in critical condition in a Seattle hospital and the crash claimed the life of his parents.

At Bernard Law Group, we handle Seattle personal injury lawsuits that are the results of auto accidents in Washington State every day. Call our attorneys at 1-800-XXX-XXXX. We are available 24 hours a day, 7 days a week.

Interestingly, that post has apparently been removed from the web site.  Not exactly an outlier, though; in his post for May 13, 2009, Kirk upped the ante, apparently figuring that a dead 5-year-old kid was better than one who'd merely been orphaned:  The post opened with the news that "Monday afternoon, just east of Gold Bar, a 5-year-old boy died in a vehicle crash," followed by the same entreaty to consult the Bernard Law Group.

This engendered an outcry from various quarters by lawyers shocked -- shocked - that one of their brethren would attempt to profit from human suffering.  So brazenly, that is.  After all, the difference between Bernard's efforts and those of other attorneys is one of degree, not kind.  A while back I mentioned a Boston criminal firm which adheres to the same technique:  a news story about a man arrested for raping a woman who was found unconscious in a mens room was followed by the firm's eager announcement that "our law firm would be happy to discuss your rape case with you during a free consultation."  And I also mentioned a Chicago law firm which sought divorce clients with an ad featuring a man and woman in an advanced state of undress above the caption, "Life's short.  Get a divorce."

That's just on the web sites and blogs.  Here in Cleveland, a staple of late-night television is ads by a local attorney advising potential personal injury clients that if they sign up with him, he'll take on the insurance company and "make them pay."  Alas, a Lexis search of Ohio publications does not disclose news of his achieving any major settlements or jury verdicts, and a call to a few insurance defense attorneys I know did not elicit a frightened shudder when I mentioned his name.

And then there was the criminal lawyer I once knew who had engraved the following slogan on his business cards:  "Reasonable doubt for a reasonable fee."  Catchy, no?

While the angst over Bernard's brazenness is understandable, it's probably a bit late in the day to inject good taste as a consideration for lawyer advertising.  The whole thing reminds me of one wag's observation that it's too bad 90% of lawyers give the other 10% a bad name.

UPDATE:  Bernard is still doing personal injury work, but the last post on his blog was in October.

Continue reading "Truth in advertising" »

Cry me a (burning) river

This was originally posted in April of 2008.

They's had all they can take in the City of Brotherly Love, and they's not gonna take no more:

Four veteran criminal defense lawyers sued the city and its court system yesterday, contending that fees paid to court-appointed lawyers for indigent defendants were "grossly inadequate" and that, as a result, defendants were being denied their constitutional rights to adequate legal representation, a speedy trial, and due process under the law.

The fees do appear pretty miserly.  You get $650 for a felony, plus $350 for each day of trial.  For handling a case that results in you spending a week in trial, that works out to $2,400, hardly a princely sum for an experienced criminal defense attorney.

Well, boo hoo.  Let me introduce you to Ed LaRue and Joan Hall.  Up here by the Cuyahoga River, Ed is a highly-skilled and well-respected criminal lawyer.  Joan Hall not so much:  she was indicted back in 2006 for running a retail rip-off scheme involving stealing merchandise, and then returning it to the store for a refund.  And this wasn't a minor-league scheme by any stretch; the county indicted Hall and her daughter on some 79 counts of corrupt activities, forgery, money laundering, and theft, claiming that the fraud had gone on for years and allowed Hall to amass over a million dollars, which she stuck in offshore accounts.

Hall's path and La Rue's didn't intersect directly; both Hall and her daughter had the coin to retain counsel.  But Joan Hall, who was 67, had a 76-year-old boyfriend, and the prosecutor tossed in five counts against him as well.  He'd become homeless by this time, and so, as an indigent, was entitled to appointed counsel.  That's where Ed La Rue comes in.  He got assigned to the case in January of 2006.

Nearly a dozen pretrials and hearings later, the case finally went to trial in March of 2007.  It took five weeks.  All of the defendants were convicted, and the case having finally been concluded, Ed submitted his fee bill for his sixteen months of work on the case, including spending the five weeks in trial.

Ordinarily, Ed would have been entitled to $900.  That's the maximum fee for appointed counsel in a first-degree felony case in Cuyahoga County.  Read those sentences again.  That's not a typo.  $900.

But wait!  There's good news!  Under the Cuyahoga County local rules, appointed counsel is entitled to ask for "extraordinary fees."  Hell, Ed probably should have asked for hazard pay; the court's docket contains this tantalizing entry, from March 28, two weeks into the trial:


Ed submitted his application for extraordinary fees.  Sure, the 180-plus hours he spent on the case would only be reimbursed at the rate of $40 or $50 an hour, depending upon whether it was in court or not, but that's a damned sight better than $900.

Ed's application was turned down.  For all the time he spent in the case, he wound up getting less than $5 an hour.  If Ed had been an employee of the County, the County could have been Federally prosecuted for paying him what it did.

Someday, the attorneys in this town are going to have the balls to do what the attorneys in Philadelphia did.

UPDATE:  Ed LaRue is still a highly skilled and well-respected lawyer in these parts, as indicated by the fact that he served a stint as president of the local criminal bar.  Like many highly skilled and well-respected lawyers here, he no longer accepts criminal assignments.  And the attorneys in this town still do not have the balls to do what the attorneys in Philadelphia did.

Continue reading "Cry me a (burning) river" »


I'm on vacation this week, so to keep you from going through withdrawal, I'm reposting some of the stuff I've done over the years.  This was from January of 2011.

Ever have one of those days when you would have been better off if somebody had stabbed you in the head during breakfast?

Jim, one of the lawyers in my office, came to me a couple months ago and asked me to help him with a suppression issue.  His client, who we'll call Jack, had gotten a traffic ticket and, since he was apparently 24 going on 13, decided to get even with the police and the prosecutor by egging their cars in the middle of the night.  This was in an Akron suburb which apparently sees little crime, so they devoted all their resources to investigating the case, to the extent of sending a wired informant into Jack's home to see if he'd make any incriminating statements.  (They probably had a SWAT team outside.)  Jack confided to the informant that he'd looked up the address of the prosecutor, and so the cops got a warrant for Jack's house and his computer.  They did the search, seized the computer, and sent it down to BCI, which sent a memo back a few days later saying they'd find kiddie porn on it.  So now Jack was facing two cases:  one a charge for retaliation, a third degree felony, and the other the porn stuff.

If you're like me, you're saying, "Where do we get the search of the computer?"  In the three-page affidavit, the only reference to anything having to do with a computer is the allegation that Jack told the informant he found the address by checking the court records online.  Alas, the word "online" never appears in the tape of the conversation.  So I put together a brief, we filed the motion, and I told Jim that I'd be happy to handle the hearing for him.

So, Tuesday morning I bundle up and head off for the Summit County courthouse for the 8:30 hearing.  That's the one nice thing about practicing in other counties, I told myself:  unlike Cuyahoga County, when they tell you the hearing's at 8:30, it's at 8:30.  Jim told me he'd meet me there a half hour early, so we could go over everything.

Turns out we had lots and lots of time to go over everything, because the hearing was set for 10:00, not 8:30.  I spent the time getting information about the judge.  The judge, I was told, was new to the bench, but the one comment everybody made was, "He'll listen to you."  That's good, I figured.

The prosecutor finally came down, and Jim made one last run at him.  "We'll plead to the indictment in the retaliation case if you dismiss the other one."  The prosecutor smiled at us and said, "Let me run into the bathroom and see if somebody wrote 'I am stupid' on my forehead."  He had a point; given the informant's tape, proving the retaliation was a slam-dunk.  Besides, he told us, he thought he was going to win the motion to suppress anyway.  And so off we go.

Well, the judge might be the kind of guy who's willing to listen, but he sure wasn't hearing anything I said.  He took an instant dislike to me, for reasons I couldn't fathom.  ("I've got some ideas on that," my wife muttered when I told her about it at dinner that night.)  We got into it from the outset, arguing over every single factual and legal point in the case.

The big bone of contention was my claim that the affidavit didn't give any factual basis for believing that Jack even had a computer, let alone that he had used it in a crime; the cop's argument was that when Jack said he looked up records or an address, that means he looked it up on the computer.  Instead of focusing on that, the judge and I went off on a tangent:  doesn't the affidavit, the judge asked, state on the very first page that they're asking to search and seize computers and computer-related items?  Yeah, but that just simply specifies what they believe that computers are involved; the factual basis for it is in the next part of the affidavit, which starts, "This knowledge is based on the following facts."  Try as I might, I couldn't get that point across, with judge finally dismissing the whole thing by saying that he didn't wish to dance on the head of that pin any more.

So I spent the better part of two hours getting beaten like a ten-year-old's drumset on Christmas morning, and stumbled out to the parking lot to head back to the office.  I spent five minutes trying to get out of the damned thing, because they've changed it since the last time I was there.  They used to have a human take your money, but they closed down that booth and set up an automated cashier at the exit.  I pulled up, stuck my ticket into the slot, and a computer voice told me that I owed $5.25 and could pay with credit card, cash, or "bank note."  I put in a twenty, and out came $14.75:  three quarters, and fourteen gold $1 coins.

Who wants $1 coins?  I drove back to Cleveland and tried to give them to the parking lot attendant, but he gave me a look like he was going to put them in a sock and beat me with it, so I walked to the bank, distributing the coins equally in both front pockets so I wouldn't tilt to the side, and cashed them in.

So how was your day?

Continue reading "Venting" »

The Tipping Point

I'm on vacation this week, and reposting some old stuff.  This post is from 3½ years ago. 

Tarika Wilson's killer went free last week.  "Killer" might not be the word a lot of people would use for Joseph Chavalia:  he was the Cincinnati police officer who gunned down Tarika during a drug raid on her house, as she was holding her year-old child.  The child was hit, too, in the shoulder and hand; one of his fingers had to be amputated.  It's hard to fault the jury which acquitted Chavalia.  Nobody argued that he went into the house with the intent of shooting anyone, and the jury obviously believed his testimony that he fired because he saw someone in the shadows, and thought shots were being fired at him.  Turns out the gunfire was from downstairs, where police officers shot two charging pit bulls.  That's just the unfortunate consequence of drug raids.  Collateral damage, the Pentagon would call it.

Cheye Calvo knows all about that.  Calvo's the mayor of Berwyn Heights, a small burg in Maryland.  He came home from work on July 29, greeted his mother-in-law, Georgia, who was cooking dinner in the kitchen, then took his two labradors out for a walk.  He noticed there was a package on the front steps, addressed to his wife, and when he came back he took the package into the house and set it on the living room table, then went upstairs to change.  A few minutes later, he heard Georgia scream.

Georgia screamed because she saw men in black, wearing masks and carrying guns, running towards the house.  It was the police.  After breaking down the front door, they shot one labrador where he stood at the door to the kitchen, and shot the other one in the back as he was running away.  Georgia was handcuffed and made to lie face-down on the kitchen floor, next to the body of one of the slaughtered dogs.  Calvo came downstairs in his boxers, and was made to kneel down in the living room.

For nearly two hours, the police questioned Calvo and Georgia about the package, which, it turned out, contained 32 pounds of marijuana.  Calvo and Georgia told them they didn't know anything about it.  The police searched the rest of the house, then left.  Calvo and his wife spent about four hours cleaning up the house afterwards; the police officers had tracked the dogs' blood everywhere.

A few days later, the police disclosed that they'd solved the crime:  it turns out that a couple of men, one of them a FedEx deliveryman, had run a scheme where one would deliver the package to the door of a home, and the other would pick it up before it would be retrieved by the homeowner.  Of course, that didn't happen here because the police had intercepted the package; they were the ones who placed it on Calvo's doorstep.

Although the police acknowledge that "the Calvos appear to be innocent victims," they've refused to apologize, saying they followed standard procedures.

They're right, and that's the problem:  this is standard procedure anymore.  The Cato Institute has a nice map of botched military raids, like this one, over the past twenty years or so.

Calvo's case is hardly unique, but he is, to a certain extent.  Unlike Kathyrn Johnston, the 92-year-old Atlanta woman who was killed in a drug raid two years ago, or Salvador Hernandez, the 63-year-old man the Salem police shot 5 times in the chest in a drug raid back in 1996, or Tarika Wilson, Calvo is white, upper-class, and clearly innocent of any wrongdoing.  And not just of drugs; when somebody winds up dead in a drug raid, the cops are willing to let just about anything float to the surface in an effort to divert attention from what they did.  When the Denver SWAT team killed Ismael Mena in a drug raid on the wrong house back in 1999, they subsequently, and falsely, claimed that he was an illegal immigrant.

Calvo, to his credit, understands that:

The reality is that this happens all the time in this country and disproportionally in Prince Georges county and most of the people to whom it happens don't have the community support and the platform to speak out. So I appreciate you paying attention to our condition but I hope you'll also give attention to those who may not have the same platform and voice that we have.

He's written a letter to the Justice Department and requested a civil rights investigation into what happened.  And maybe this'll nudge the cops off the desire to go Rambo on ordinary citizens.  Calvo claims that while he was sitting there, handcuffed in his own living room, he heard one of the detectives confide in another that she was "excited" because this was her first raid.  In Mena's case, the police had been accompanied on the raid by Colorado Rockies' second baseman Mike Lansing.  No, you're not reading that wrong; it was subsequently learned that it was not unusual for Denver athletes to accompany police on those raids, just for the thrill.

So maybe that will change, or maybe not.  I have a case now where the police did a SWAT team raid on a house over a controlled buy of $60 worth of marijuana.  I asked the cop at a pretrial why they had the SWAT team there, and he told me they use a formula to determine whether to use SWAT, and my guy was "off the charts."

Some chart:  he's 51 years old, and has a 1994 4th-degree felony conviction for drug possession and a 1982 conviction for aggravated assault.

UPDATE:  The Berwyn Heights Police Department conducted its own investigation into the matter, and you'll be astonished to learn that they determined they'd done nothing wrong; the police chief said "I'd do the same thing tomorrow."  Calvo sued, and he and the city subsequently entered into a settlement, the terms of which weren't disclosed.

Did things change?  From a news story a little less than a year ago:

A Tucson, Ariz., SWAT team defends shooting an Iraq War veteran 60 times during a drug raid, although it declines to say whether it found any drugs in the house and has had to retract its claim that the veteran shot first.

As for my client who was "off the charts," I got him off.  The judge threw out all the evidence because the detective had lied in his affidavit for the warrant.

Continue reading "The Tipping Point" »

Go west, young man

Several years ago, I was sitting outside a judge's chambers, waiting for something to happen, and I found myself next to another lawyer.  We got to talking -- like there was something else to do -- and he told me how he was going on vacation the next week, to visit his son and daughter-in-law in Houston.  It was tough, he said, to keep up with his work while he was there, so he'd set it up so that every morning his secretary would scan all his incoming mail, and then email it to him.  He could review it, and then email her instructions about what to do.

So I shot him.

Well, I didn't, of course, but it might have been doing him a favor.

To a certain extent, law is an old man's game.  First, you get better at it.  There are few endeavors where there is a substitute for experience, and law is not one of them.  You get better at this as you get older; you learn to judge people better, you get a better understanding of your strengths and weaknesses, you learn to handle yourself better.  Plus, the law venerates age:  get some gray hairs, and everybody -- judges, opponents, bailiffs -- treat you with more respect.

But it's also a young man's game.  It's a very deadline-oriented occupation.  A doctor's appointment book is filled with names of people who are supposed to show up at his office, and if they don't, well, that's too bad for them.  Our appointment books are filled with places we have to be and things we have to do, and if we're not there or don't do them, it's too bad for us.  That kind of stress can build up after a while.  I know a lot of lawyers who just burned out, and I'd guess that 30% of the ones I know would quit in a heartbeat if they could afford to do so, and another 30% would give it some thought.  There's a lot of them that don't enjoy their job.

I do.  I like just about everything about it.  I like writing this blog, and the stuff I do on the listservs of the state and local criminal bars, and doing seminars.  I like doing appeals.  I like handling criminal cases, even the appointed ones, because it means going over to the Justice Center and hanging out and talking with judges and lawyers, being with people I respect and who respect me, just being part of that community.  The key thing is that, with very few exceptions, I don't do anything that I don't like to do.  The best time in a lawyer's professional life is when he realizes he can say, "You know, I'm not going to take this case, because the assache wouldn't be worth the money," rather than having to say, "Yeah, this case is going to be an assache, but I gotta pay the rent."

But I don't like it that much.  I don't like it as much as vacations, let's put it that way.  About the only time I have a day where I don't do anything that's law-related is when I'm on vacation, so I pursue that opportunity with a vengeance.  I'm the polar opposite of that other lawyer.  Most of the lawyers I know will at least call their offices every day or so when they're on vacation to check up.  Not me.  I am wholly, completely irresponsible toward my professional obligations when I go on vacation.  It's like I quit.  I was in Hawaii for two weeks last October.  After the fourth day there, I called the office to check my messages.  Apparently, I was suitably assured that the Earth would not fall off its axis during the remainder of my vacation, because I didn't call again.

So tomorrow, the house sitters will arrive at eight, and an hour later my wife and I will be jetting off to Phoenix.  I'm going to try out for a job as a weatherman there, because apparently the only requirements are the ability to say, "Tomorrow it's going to be X degrees and sunny."  Assuming I don't get the job, I'll be back in six days, and will spend next weekend writing blog posts.  But not tomorrow, or next week.

This space won't be barren during that time, though.  This is the 1,409th post I've written since I started doing this almost six years ago.  As I said, I like writing, and although the purpose of this blog is to inform, every now and then I'll come across a post I've done that I just think was nicely written.  The last time I was gone, I posted some war stories that I'd done previously.  This time I'll just repost some of the stuff that I'm kind of proud of.

Hey, so shoot me.

Continue reading "Go west, young man" »

Beyond Padilla

You're representing a client charged with a misdemeanor domestic violence offense, and he's going to be pleading guilty.  You advise him that the penalty is a maximum six months in jail and a $1,000 fine.  That's the easy part.  If you're client's a non-citizen, you'll advise him to seek the opinion of an immigration attorney on how a conviction of that offense might affect his immigration status, especially after the Supreme Court's 2010 decision in Padilla v. Kentucky, which held that an attorney had rendered deficient performance by misadvising his client about the deportation consequences of a drug conviction.  But do you advise him that a subsequent charge of domestic violence will be a felony?  Do you tell him that a conviction of domestic violence means he's barred under Federal law from ever owning a gun?

You're handling a drug case.  Your client lives in Section 8 housing.  Do you tell her that a conviction will result in her ineligibility for that?

Welcome to the brand new world of collateral consequences.

Continue reading "Beyond Padilla" »

The 8th looks at allied offenses

I've maintained that State v. Johnson, the Supreme Court's 2010 decision overruling State v. Rance, did not merely return allied offense law to the pre-Rance era.  Confirmation of that comes from the 8th District decision last week in State v. LacaveraActually, the 8th handed down three decisions on allied offense law, and all of them are worth a look.

Continue reading "The 8th looks at allied offenses" »

What's Up in the 8th

I've mentioned before that 4th Amendment law is like a war, with each side adopting new arguments and tactics as decisions come down.  One of the tactics in current vogue is the inquiry/consent routine:  the officer will ask the defendant if he has anything on him or in his car, the defendant will say no, the officer will ask if he minds if he's patted down or if the car is searched.  The defendant wouldn't consent if he had something to hide, right?  Unfortunately, defendants usually assume the converse -- that the cops will think they're hiding something if they refuse consent -- and so submit to the search.  That's what Philip Dieckhoner did, even though he had a baggie of cocaine in his pocket.  Last week in State v. Dieckhoner the 8th District held that the cop's questioning went too far.

Continue reading "What's Up in the 8th" »

Case Update

The big news from SCOTUS this week was the acceptance of cert in Fisher v. University of Texas, which challenges the university's undergraduate admissions policy of affirmative action.  With Justice Kagan recusing herself, that leaves only three justices on the court who have voiced support for affirmative action in higher education.  Speculation is that the other five, who have all expressed outright opposition or at least misgivings about it, will toss the policy; the betting now is whether they do so narrowly, just ruling on UT's policy, or whether they go all the way and overrule Grutter v. Bolling, its 2003 decision upholding the University of Michigan Law School's policy.  If Grutter is overruled -- and the plaintiff in Fisher asked the Court to reconsider it -- it would effectively eliminate affirmative action in every school in the country.

The big news later this month will be the two days devoted to oral argument regarding the Affordable Care Act, the health care reform passed by Congress in 2010.  The critical issue is the mandate requiring everyone to purchase health insurance, which has proven consistently and immensely unpopular; recent polls show that nearly three-quarters of the public believes that the mandate is unconstitutional.  There's always been a question of whether, and how closely, the Court follows public opinion, and a decision upholding the act and the mandate might provide an answer.

The oral argument calendar is bare for the next fortnight, but arguments resume on March 20 with two key criminal cases on the docket.  Two years ago the Court held that subjecting a juvenile to life imprisonment without parole for a non-homicide offense violates the 8th Amendent's proscription of cruel and unusual punishment.  The two new cases involve the question of whether that proscription should be extended to homicide cases as well.  The following day, the Court takes on the bedeviling issue of what constitutes harmless error.  I'll have more on that after the argument.

Shifting our gaze to Columbus, did you know that the law -- RC 2947.23(A)(1), to be specific -- requires a trial court when imposing court costs to inform a defendant that if he fails to pay the costs, the court can require him to perform community work service?  Don't feel bad; I didn't get the memo, either.  In State v. Smith, the defendant had appealed, arguing in part that the trial judge had failed to so advise him.  The court of appeals had refused to consider the assignment, saying that it wasn't ripe until the defendant failed to pay costs or the judge imposed community service.  The Supreme Court reversed, holding that the issue was ripe.  Left unaddressed and unresolved is what exactly is the consequence of the trial judge's failure:  is the sentence void?  Partially void?  Can the defendant get out of paying costs or picking up roadside trash completely?  Will Lisa ever tell Jack that she's pregnant with Eric's baby, not his?  Stay tuned.

You don't need to await the opinions of the courts of appeals; they're right here...

Continue reading "Case Update" »

Friday Roundup

The Philadelphia Story.  I've spent plenty of time bitching about the inadequate compensation that Ohio, and especially Cuyahoga County, provides for attorneys appointed to represent indigent defendants, but I'd probably go ballistic if I lived in Philadelphia.  The City of Brotherly Love doesn't give much love to defense attorneys, especially those assigned to death penalty cases.  As this article notes, a recent report ordered by the state supreme court shows that only about 30 lawyers, in a city overrun with 11,000 of the critters, are willing to take those assignments, and it's not hard to figure out why.  Lawyers get a flat $2,000 "preparation fee," which covers taking the case to trial.  At that point, a daily fee kicks in: $400 for full days, $200 for half days.  So if you're in trial for a month, you're going to walk out with about $6,000.

But if the case doesn't go to trial, you only get the $2,000.  Ooops, I'm sorry, you don't even get that:  the preparation fee is reduced by a third if the case is resolved before trial.

Think about that for a minute.  The usual rule is that you spend three hours in preparation for every hour you spend in trial, and while that may not be true for a lot of criminal cases, it certainly is for a capital case.  You have to prepare not only to persuade a jury that your client is innocent, but also that his life be spared.  (Actually, that latter part is the focal point of most death penalty cases.)  Some of the background checking for that is going to be done by your mitigation expert, but the coordination of that and the distillation of it into something you can use involves a lot of work on your part.  So you do all that, and what you've put together is so impressive that the prosecutor agrees the case doesn't warrant the imposition of the maximum penalty, so he pulls the death specs, and for all that work you get $1,333.

What's really obscene about this is that the people who came up with this have some involvement in the justice system, but don't give a crap about what justice is.

Freaking economics.  I had a pretrial the other day where the co-defendant's attorney wigged out at the prosecutor because she was offering a plea bargain that he didn't like.  I could understand both sides.  His client was charged with 2nd-degree felony burglary with a repeat violent offender spec, and all the prosecutor was willing to do was pull the spec.  Since this wasn't in front of a judge who was likely to impose time on the spec, that really wasn't much of a deal.  On the other hand, the guy had just gotten out of prison two months before this for the same thing, and they had plenty of proof against him, including his fingerprints on the inside of the house. 

It reminded me of a law review article I ran across the other day which discussed the market model of plea bargaining.  What the hell is that?  It stems from a 1983 article by Federal Judge Frank Easterbrook which argued that plea bargaining and other aspects of the criminal justice system could "be understood as elements of a well-functioning market system" that "set the 'price' of crime" and thereby tend to "get the maximum deterrent punch out of whatever resources are committed to crime control."

What that means in plain English is that plea bargaining is like any other market transaction:  you haggle over a product, and wind up with an agreed price.  The "product" is the quality of the state's case.  If it's trying to sell you a bad one -- the victim has a criminal record, the witnesses' statements are contradictory, and there's no forensic evidence -- you're going to pay a lower "price" than you would if they had a good case.  "Price," of course, is years or penalties instead of money.

This works up to a point.  One of the big problems is the parties' disagreement about the likely result of a trial:  if I believe that I've got an 80% chance of winning the case, but the prosecutor thinks he's got an 80% shot, a deal's unlikely.  Same thing as in a financial transaction:  if my wife's antique shopping and comes across something she thinks is worth $50, but the store owner thinks it's worth $500, it's very unlikely that she's going to be bringing that home.  And disagreement can result from lack of information.  One of the reasons that many prosecutors have come to like open discovery is that it makes plea negotations more fruitful.  A defense attorney has a much better chance of accurately analyzing a case's prospects if he has all the police reports and witness statements.  And a defendant has a better chance of doing that, too.

That last point, though, reveals one of the problems with the economic model:  as in all economic models, it's based on rational actors, each objectively evaluating the transaction and arriving at the maximum benefit for each of them.  For that reason, the free market correctly pegs the price of a commodity, whether it's stocks, houses, or widgets.

Except when it doesn't, and people start believing that a business plan for a dot-com startup drawn on a the back of a napkin will pan out, or that their house will keep increasing in value 12% a year.  With your 20 years of experience practicing criminal law, you may come to an evaluation of the chances your client is going to be convicted and what the likely sentence will be, but your client's not likely to come up with the same one if he's a 19-year-old dropout who's been told by his cellmates that there's no way he can be convicted of a gun spec if they don't find the gun.

Fun theory, anyway.

STFU.  I did a post yesterday about the troubles lawyers can get into talking about judges.  From New York comes a story that lawyers can get into trouble by running their mouths without even bringing judges into the mix.  Radical lawyer Lynne Stewart represented Omar Abdel-Rahman, the "blind sheikh," who'd been convicted of various crimes growing out the investigation of the first WTC attacks in 1993.  In 2005, Stewart was convicted of conspiracy and other crimes for helping Abdel-Rahman smuggle messages out of prison to his terrorist network.  Stewart faced a possible thirty years incarceration, but the judge gave her only 28 months. 

That sentence got reversed on appeal as insufficient, so on remand, the judge gave her ten years, based partially on the fact that immediately after the first sentencing, she'd given a press conference where she said that she could do the 28 months "standing on her head."  She'd also made several other comments indicating, shall we say, a paucity of remorse, including the statement that she'd do the same thing over again if she had a chance.

So Stewart's lawyers were back before the 2nd Circuit again -- in fact, the panel contained the same three judges who'd reversed her first sentence -- claiming that the imposition of the harsher sentence violated Stewart's First Amendment rights.

That's not necessarily a long shot; as one judge asked the prosecutor during oral argument,"Can't somebody say: 'I lucked out'?  What if she said: 'Boy, I was lucky to get the sentence this low.  A lefty like me usually gets hit hard.'"  The government lawyer asserted that the judge hadn't just listened to the audio, but had watched a video of Stewart's statements outside the courthouse.

I'm not sure why that should matter -- I don't understand how your First Amendment protections are affected, let alone lessened, by your body language.  The problem was that Stewart hadn't simply scoffed at her sentence; her announcement that she'd do the same thing again, which, the judge noted, she was in a position to do, went to the issue of whether she was sufficiently remorseful, and nobody's going to argue that's not a sentencing consideration.  As another judge put it during oral argument, "I'm not sure that freedom of speech means absolute immunity from the consequences of what you say."

In any event, the sentencing judge was wrong on one aspect of the case.  Stewart won't be in a position to do the same thing.  She's been disbarred.

Continue reading "Friday Roundup" »

Trash-talking about judges

Every now and then, every appellate lawyer gets a decision where he's tempted to go Geoffrey Feiger on the judges.  Feiger, best-known for defending Jack Kevorkian, had gone on a radio show in 1999, shortly after a Michigan court of appeals reversed a $15 million medical malpractice judgment he'd won, and called the appellate judges jackasses and Nazis.  (Intemperate language was hardly new to Feiger; when he ran for governor of Michigan in 1998, he labeled the incumbent governor a product of barnyard miscegenation, and asserted that "rabbis are closer to Nazis than you'd believe."  He lost the race by 24 points.)  After eight years of disciplinary proceedings, the Michigan Supreme Court held that Feiger's comments weren't protected by the First Amendment, and imposed a public reprimand.

A reprimand is also what was handed down to Sean Conway, a Florida lawyer who happened to write a post on a courthouse blog denouncing Judge Cheryl Aleman for her "ugly, condescending attitude," calling her "an evil, unfair witch," and suggested she was mentally ill.  That was prompted by her habit of scheduling trials in criminal cases one week after the initial pretrial.  Interestingly, the judge herself was given a public reprimand for being "arrogant, discourteous, and impatient to the lawyers appearing before her," such as, probably, giving defense counsel a week to prepare for trial.

Mark Gardner would have liked to be so lucky.  Back in 2003, after he got a decision from the 8th District he didn't like, he wrote a motion for reconsideration lambasting the panel for having "distorted the truth," having a "prosecutorial bent," and manufacturing a "gross and malicious distortion."  Disciplinary counsel suggested a public reprimand as a sanction, and the panel agreed, but the board upped the recommended penalty to a six month stayed suspension.  The Supreme Court went them one better, handing down an actual six-month suspension.

And if that isn't bad enough, you've really got to wonder what a lawyer can say about a judge after a couple of recent Supreme Court disciplinary cases.

Continue reading "Trash-talking about judges" »

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Recent Entries

  • February 14, 2018
    Two more to death row
    A couple of death penalty decisions from the Ohio Supreme Court
  • February 12, 2018
    En banc on sentencing
    The 8th looks at the appellate court's role in reviewing sentences
  • February 8, 2018
    SCOTUS and the Fourth
    A couple of upcoming Supreme Court decisions on search and seizure
  • February 5, 2018
    What's Up in the 8th
    The benefits of appealing muni court cases, lecture time, and when you absolutely, positively, cannot raise arguments about manifest weight and sufficiency
  • February 2, 2018
    Friday Roundup
    School specs and sovereign citizens
  • January 31, 2018
    A tale of three cases
    The Ohio Supreme Court decides one case, and decides not to decide two others
  • January 29, 2018
    What's Up in the 8th
    Getting rid of an attorney, no contest pleas, and probation conditions
  • January 26, 2018
    Friday Roundup
    Information society. Last week I did a post about Aaron Judge and the lack of hard data in the field of criminal law. We have mainly anecdotal information on what kinds of sentences judges hand down, we have no idea...
  • January 24, 2018
    A win in a search case
    Analysis of the Supreme Court's decision in State v. Banks-Harvey
  • January 22, 2018
    What's Up in the 8th
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