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April 2012 Archives

Case Update

Only one decision from SCOTUS this week in the criminal arena, Wood v. Milyard, involving a habeas case.  Prior to 1996, there was no time limit for filing a habeas action.  In that year, though, Congress passed the AEDPA -- Anti-terrorist and Effective Death Penalty Act -- mainly out of a desire to greatly restrict the use of the writ.  There are innumerable times when legislation has not achieved the sought-after results, but this wasn't one of them:  strict time limitations, obsequious deference to state court determinations, and a rigorous standard for reversal of those determinations -- only when they clearly ran counter to Supreme Court decisions -- reduced the Great Writ to a mockery; one recent study found that in nearly 3,000 non-capital cases, a defendant successfully sought habeas relief in seven.  Wood's petition was untimely, but the state indicated it would not challenge that issue.  The district court denied the petition, but on appeal, the 10th Circuit never reached the merits, deciding instead that the petition was time-barred.  In unanimously reversing, the Supreme Court rejects Wood's argument that a court of appeals can never raise a timeliness argument sua sponte, but should use its discretion to do so sparingly.  SCOTUSblog has a more extended analysis of the decision, which you can read here, but you should be warned that even they conclude that "this case will be remembered, if at all, as the least important case on the Court's docket this year."

Sometimes the important decisions a court makes don't wind up as opinions, and that may be true for the Ohio Supreme Court last week.  There wasn't a single opinion issued since the court's decision in State v. Davis on the 17th of this month, and that one, as I discussed here, was inconsequential, concerned as it was with a criminal statute that's since been amended.  But last Wednesday the court had oral argument in State v. Brunning, involving the question of whether Megan's Law offenders can be prosecuted for notification and registration violations under the AWA.  As I mentioned, the argument didn't go well for the defense, and that opinion was buttressed late Friday afternoon, when the court issued a terse order canceling oral arguments in the other two cases which raise different facets of the same issue.  We'll see what happens in Brunning, but I'm guessing it's going to happen sooner rather than later.

Slow week in the courts of appeals, too...

Whether a juvenile court properly determined to bind over a juvenile for trial as an adult is reviewed for abuse of discretion, not sufficiency of the evidence, the 6th District notes in State v. Morgan... Any denial of the right to allocution at a resentencing hearing to impose post-release control is necessarily harmless, the 2nd District says in State v. Carr, since the trial court has no power to change the sentence... In State v. Goings, the trial court suppressed a statement made to a social worker by the alleged victim of a gross sexual imposition.  The state appeals, claiming that the statement should have come in under EvidR 803(4), statements made for medical diagnosis and treatment, but the 3rd District affirms, noting that there was no ongoing emergency, the worker took no steps to alert medical authorities, and instead called the police; thus, she was acting as an agent of the police, and the statement was thus testimonial.  Excellent treatment of Crawford... In State v. Rybak, the 11th District rejects the defendant's claim that he's entitled to expunge an attempted aggravated assault conviction because, at the time he entered his plea to that offense, it was expungeable.  The statutory law at the time of the filing of the motion for expungement is controlling, the court says...

Nice OVI case from the 6th District.  An officer stopped the defendant for a broken headlight, at which point he asked to exit the vehicle, did so, went to the front, and struck the headlight with his hand, making it operational.  He then returned to the vehicle, and the officer continued to talk to him, noticing that he had a "slight odor" of alcohol, that he had "bloodshot, glassy eyes," and that he appeared "anxious."  The officer had the defendant exit the vehicle and asked him to perform field sobriety tests; she determined that he failed to perform them sufficiently, and arrested him for OVI.  In State v. Stricklin, the 6th District reverses, finding that the slight odor and the bloodshot eyes weren't a sufficient basis to warrant the administration of field sobriety tests.

Continue reading "Case Update" »

Parsing Bodyke

Everybody who follows SORN laws -- sexual offender registration and notification laws -- knows that Ohio's adoption of the Adam Walsh Act in 2008 is a bad joke with a seemingly endless supply of punch lines.  The legislature passed the law -- Ohio was the first state to adopt it -- eager to obtain the gusher of federal funds that was promised to those states which did so, only to learn that Congress never got around to appropriating any money for that purpose.  Then the Ohio Supreme Court determined, in State v. Bodyke, that the basic scheme of the law, which permitted the attorney general to reclassify sexual offenders who'd previously been classified by judges under Megan's law, violated the doctrine of separation of powers.  That was followed by the ruling in State v. Williams, that the provisions of the AWA were sufficiently punitive that the court could no longer pretend, as it had with Megan's law, that the law was remedial; thus, it couldn't be applied retroactively.  All that leaves the state with two SORN schemes, one (AWA) which supposedly applies to offenders who committed their crimes after its effective date of January 1, 2008, and one (Megan's law) which supposedly applies to offenders who committed their crimes before that.

But what happens to offenders who are classified under Megan's Law, then subsequently violate the registration or verification requirements of AWA?  Can you be punished for that?

The Ohio Supreme Court has three cases on its docket to tackle that question, and took its shot at the first one, State v. Brunning, in oral argument on Wednesday.

Continue reading "Parsing Bodyke" »

Oral Argument Blues

So you've got your first oral argument coming up in the court of appeals, and you ask the more seasoned heads in your office what to expect.  It takes a lot of planning, they tell you.  You've got to figure out what points you want to argue -- you've only got 15 minutes, after all -- and what the strengths and weaknesses of your argument are.  You've got to anticipate what questions the panel might ask, and how to deflect the tough ones and steer the judges back to the points you want to hammer home.  Just like in trial, planning and preparation is the key.

Here are my two favorite quotes about planning.  The first is by von Moltke, the Prussian general:  "No plan of battle survives contact with the enemy."

The second is by that noted philosopher, Mike Tyson:  "Everyone has a plan until they get punched in the face." 

I'm thinking that Donald Verrilli probably appreciates the Tyson quote more.

Continue reading "Oral Argument Blues" »

The racist criminal justice system (?)

If I had to distill 37 years of practicing criminal law into two observations, they would be:  for a defendant, it doesn't hurt to be white, and it doesn't help to be black.

Larry Elder would beg to disagree.

Continue reading "The racist criminal justice system (?)" »

What's Up in the 8th

How bad were things for defendants in the 8th District last week?  In the only reversal among the nine cases, it's very probably not going to make any difference.  Even a civil defendant, which had successfully sought Supreme Court review of the 8th's reversal of the summary judgment it had gotten from the trial judge, gets another smackdown on the remand.  Let's take a look at the damage.

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

Case Update

This is the final week for oral argument in the Supreme Court this term, and the Court saves one of the big ones for last:  Wednesday's docket features the argument in Arizona v. US, concerning the constitutionality of the immigration law passed in Arizona in 2010.  Although much of the discussion has centered on whether the law permits racial profiling -- it permits police to stop and arrest anyone they suspect of being an undocument immigrant -- the appeal at this point focuses solely on "pre-emption":  the doctrine that states may not interfere with any powers given exclusively to the Federal government.  Of course, the doctrine comes in a variety of flavors:  there's express pre-emption (where the Constitution or a federal statute explicitly confirms Congress' intent to expound the law to the exclusion of the states), and "implied pre-emption" (where Congress has the power but doesn't expressly state that it is pre-empting state laws), and within the latter, "conflict pre-emption" (where the state statutes conflict with Federal law) and "field pre-emption" (where the federal regulatory scheme is so pervasive as to warrant an inference that Congress intended to exclude the states).

This involves conflict pre-emption, and Justice Kagan having recused herself, the early line focuses on whether the four conservatives can lure Kennedy to their side to uphold the Arizona law; otherwise, a 4-4 tie results in the affirmance of the 9th Circuit's decision.   The end of June thus offers the prospect of two Supreme Court decisions on major issues affecting the presidential elections:  health care and immigration.

Speaking of presidential elections, Mitt Romney has famously observed that corporations are people, too.  Apparently, the Court isn't buying; its one decision last week, Mohamad v. Palestinian Authority, held that the Torture Victim Protection Act, which doesn't do much to protect torture victims except allow them to sue, imposes liability only on individuals, not organizations.  Jack Bauer's handlers no doubt breathed a sigh of relief.  In the other decision last week, Filarsky v. Delia, the Court unanimously reversed a 9th Circuit decision which had held that a private attorney working for a city on a contract basis could be sued under §1983 for a possibly illegal search conducted under his authority.  Not so, said the Court; a private citizen working for the government is entitled to the same qualified immunity as a government worker is.

I would be remiss in not telling you that also scheduled for oral argument this week is Match-E-Be-Nash-She-Wish Band of Pottawatomi Indicans v. Patchak.  I think it's based on an old episode of F Troop

One decision from the Ohio Supreme Court last week, in State v. Davis, involving RC 2921.04(B), which prohibits intimidation of a witness "involved in a criminal action or proceeding."  Three years ago, in State v. Malone, the court held that the statute didn't apply where the defendant had threatened a witness to a rape case, because the rape hadn't been reported, and thus there was no "criminal action or proceeding."  Here, an investigation had begun, but the court holds that's not an action or proceeding within the meaning of the statute, and hence it still doesn't apply.  All intersting stuff, but in a footnote, the court mentions that the statute's since been amended so that it applies regardless of whether charges have been filed.  In that light, it's not clear why the court even took the case; the 2nd District had reversed the defendant's conviction, which the court affirmed.  File this one under "W" for "Why Bother?"

In the courts of appeals...

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Friday Roundup

Camera-shy.  If you read this blog on a semi-regular basis, there are probably some questions you have, and one of them might be, "Gosh, Russ, why don't you have a picture of yourself here?"  After all, if you surf the web for legal web sites, you'll encounter any number of pictures of lawyers, singly or in groups, most with the same studied pose:  arms folded across the chest, a steely glare silently communicating the message that woe be it to any insurance lawyer or prosecutor who has the misfortune of crossing their path.

Well, to assuage your concerns, it's not that I have an advanced case of elephantiasis or a complexion that calls to mind a slab of not particularly lean corned beef.  It's just that I don't photograph well.  A couple years back, the Vindicator, the magazine of the state criminal bar association, decided to run a couple of articles under my byline, and urged me to provide a picture to accompany them.  Against my better judgment, I did so.  A popular topic on the association's listserv over the next several weeks was what the picture reminded the participants of, with the consensus finally settling on it being the type of photo kidnappers send to the hostage's family, the only thing missing being me holding up a newspaper with the current date.

Perhaps I'm too shy.  There are people who have a complexion that calls to mind a slab of not particularly lean corned beef.  Call Photography, a studio specializing in class portraits, realizes this as well, and so sent out an email to all the graduates of Thomas M. Cooley Law School (and four other graduating classes as well), boasting of their ability to retouch photographs to eliminate "unsightly blemishes," which they called "complexion retouching," and offered "extensive retouching" for more extreme cases.  It even included "before" and "after" photography of a particular individual to show off the marvels of its work.

Unfortunately, the particular individual happened to be one of the graduating seniors.  Being a good American, he promptly sued (complaint here), alleging that he "suffered with aesthetic difficulties with the complexion of his face for the majority of his adolescent and adult life."   (I feel your pain, dude; while for the fair sex the cautionary advice in high school was that "boys don't make passes at girls who wear glasses," for us it was "girls with big busts you'll scare off with your pustules.")  He demanded compensation for having "quickly became the subject of conversation throughout Cooley Law School and plaintiff's colleagues."

Some conversation, I'll bet.

So, I guess there are things worse than having people ponder over your picture, "Gee, do you think he was still alive when that was taken?"  Nonetheless, the student's plight has made me rethink my position on being photographed.  I've decided to go the "before-and-after" route as well, in my case with the company who keeps sending me all those emails about penis enlargement.  The results from the preliminary photo-shoot can be found at right.  Stay tuned.

Fortunately, they'd left their tasers back at the station.  Police in Milledgeville, Ga., responded to a call from a local school, and found a situation all too familiar in these dystopian times:  a student, Salecia Johnson, was acting out, throwing furniture and knocking over shelves, which resulted in injuries to her principal.  The cops managed to gain control of her, handcuffed her, and bundled her into the police car before taking her downtown.  She won't be prosecuted, though, because of her age.

She's six years old.  The police chief defended the handcuffing, asserting that there was no "age discrimination" in its policy of doing that with anyone who was to be placed in a cruiser.  That's good to know.

Get ready for Zim-Mania.  Well, this is off to a promising start.  First, the country spends a month debating George Zimmerman's shooting of Trayvon Martin, a debate unencumbered by information such as autopsy reports, witness statements (other than via rumor), or any forensic evidence, with everyone from the guy next door to the President of the United States weighing in.  Then, Zimmerman's two erstwhile attorneys hold a press conference to announce that they are withdrawing from the case because their client is mentally unstable, establishing beyond peradventure that whatever Florida mandates in the way of CLE's on ethics, especially focused on the stuff about client confidentiality, it isn't enough.  Then, the prosecutor climbs aboard this ethical train wreck, announcing that she's charging Zimmerman with 2nd degree murder -- murder?  really?? -- and in the process violating any number of  rules of professional conduct pertaining to prosecutors.  And with the arraignment still over a month away, as recounted here, we have just about every lawyer in the country willing to go on TV and venture an opinion, no matter how ill-informed, about the case.

The debate about whether we should have cameras inside the courtrooms seems to have been settled.  I'd like to reopen the debate, and suggest that maybe, when it comes to the law, the better question is whether we should have cameras outside of them.

Continue reading "Friday Roundup" »

Caught in the crossfire

The state's case against Shirley Ree Smith wasn't the greatest.  Etzel Glass was only seven weeks old when he died, but arguing that Smith had shaken him to death was a stretch.  She was helping her daughter raise Etzel and two other children, and there was nothing to indicate she'd been anything other than loving toward them, and none of the nonmedical evidence that normally arises in shaken baby cases:  a past pattern of abuse, an unwanted child, a "trigger" such as inability to stop the baby from crying.  The medical evidence wasn't any great shakes, either:  no evidence of physical injury, no retinal bleeding or brain swelling, and only minimal subdural hemorrhaging.  In fact, the state's argument was basically that the child had died from shaking which had sheared his brain stem in a manner which couldn't be detected. 

But this was in 1997, the heyday of shaken baby syndrome.  It wasn't unusual to drive by a billboard admonishing young parents not to shake their babies, and it was the same year that Louise Woodward, the English nanny, was convicted in a notorious case of shaking her 8-month-old charge to death.  The jury found the evidence against Smith sufficient for conviction, so off she went to do a 15-to-life stretch. 

Nine years later, the 9th Circuit reversed, finding that the evidence was clearly insufficient to support the conviction.  In the first decision of this term, the Supreme Court, in a per curiam opinion, reversed that, and sent Smith back to prison.  But, as Justice Ginsburg's opinion for the three dissenters explains, there's more to the story than that.

Continue reading "Caught in the crossfire" »

The Fairness Dilemma

For the most part, the law's intended to be fair.  It's not always applied fairly, to be sure, and sentencing laws in particular can be overly harsh, but at least the intent to be fair is almost always present.

But every now and then, it's not:  you'll run into a situation where you've got to decide whether to follow the law, or to be fair.  For the US Supreme Court, that day came yesterday, with the oral arguments in Dorsey v. US and Hill v. US.

Continue reading "The Fairness Dilemma" »

What's Up in the 8th

One of the problems with trying a case to the bench rather than a jury, as I've pointed out, is that you give up the likelihood of winning an appeal on evidentiary issues.  Judges usually let everything in and sort it out later, a policy reinforced by the appellate courts' presumption that a judge considered only "relevant, material, and competent evidence."

That presumption took some major damage in the 8th District's decision last week in In re C.T.

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

Case Update

After two weeks off, SCOTUS resumes oral arguments today, along with the possible release of an opinion or two.  The big arguments in criminal law come tomorrow, in Dorsey v. US and Hill v. US.  Back in 1986, having watched one too many episodes of Miami Vice, Congress passed the Anti-Drug Abuse Act, which imposed stiff penalties on trafficking in crack cocaine.  How stiff?  In addition to imposing mandatory minimum sentences -- selling just five grams of crack would get you five years -- it created the "crack/powder" disparity of the 100-1 ratio:  you'd have to sell 500 grams of powder to face that five-year minimum.

Within a decade, the racial divide of that ratio became apparent; blacks, who trafficked mostly in crack, were going to prison far more often, and for far longer terms, than whites, who trafficked mostly in powder.  The Sentencing Commission suggested reducing the ratio to 5-1 in 1997, and 20-1 five years later, but Congress ignored it and kept the laws intact.  Finally, increased criticism and the Supreme Court decision in Booker, which made the guidelines advisory rather than mandatory and thus allowed judges to ignore the extremes (although not the mandatory sentences), led to the passage in 2010 of the Fair Sentencing Act, which raised the amount for the mandatory sentence to 28 grams, and reduced the ratio to 18-1.

The Obama administration originally held the view that the new sentences couldn't be applied to crimes committed before the effective date of the act, even if sentencing occurred afterward, but changed course last year.  Dorsey and Hill fit into precisely that situation, and since the government will be arguing the same position they are, the Court has appointed a lawyer to argue that defendants who committed crimes before the act shouldn't get the benefit of lesser sentences, even if their sentencing occurs after its effective date.  I'll have more on the oral argument later this week.

Down in Columbus, the only things of note were preparation for the execution of Mark Wiles, who's spent the last quarter century on death row.  This comes after a six-month hiatus in capital punishment caused by concerns over Ohio's method of imposing the penalty.  Apparently, the State has once again achieved sufficient efficiency in killing people to allow the procedure to go on.  Also noteworthy was the court's reference to an elections case involving a proposed amendment to the Ohio Constitution which would repeal the 2004 "marriage" amendment and replace it with one allowing gays to marry.  It's a bit more complicated than that, but it gives us one more thing to think about -- along with contraception, Obama's birth records, Romney's taxes -- as we go into this election.  As opposed to stupid stuff like, say, the economy and jobs and the deficit.

They don't worry about that stuff in the courts of appeals, either, so let's take a look to see what's happened there...

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Frye and Cooper: the Prosecutor

Today's question:

If you're handling a criminal case -- or on the receiving end of one -- and you had a choice between having a fair judge and having a fair prosecutor, which would you choose?

If you're a layman, or you're a lawyer who doesn't do much criminal work, you'll answer "the judge" almost instinctively.  The very idea of an unfair judge is anathema; a fair, impartial judge is the heart of the entire justice system.  We have ways of making sure the judge is fair; a judge's decisions will be reviewed by other courts, and if they're not fair they'll be overturned.  (At least, that's how it works in theory.)  Sure, she has a lot of discretion, but that makes her fairness all the more important.  There are few experiences worse than trying a case to an unfair judge.  And one of the things within her discretion is the sentence, and that can mean years of your client's life.  Besides, the prosecutor is on the other side.  He's not supposed to be fair. 

But if you practice criminal law a lot, you know an unfair prosecutor can do far more damage, because he has far more discretion than the judge.  He has almost total control over whether to bring charges, what charges to bring, and what charges he'll accept a plea to.  That latter one is huge.  As the Supreme Court recognized a couple of weeks ago in Missouri v. Frye and Hafler v. Cooper (discussed here, here, and here), our justice system is not one of trials, but of pleas:  around 95% of all criminal cases end in a plea.  That means the prosecutor has just as much, if not more, affect on the outcome as the judge.  Sure, if your client gets convicted of felonious assault, the judge can send them to prison for anywhere from two to eight years.  But if you can persuade the prosecutor to drop it to an aggravated assault, the chances are good your client's not going to go to prison at all.

Continue reading "Frye and Cooper: the Prosecutor" »

Balancing the interests

We like to think of our fundamental rights as absolute.  I have the absolute right to criticize the president of the United States.  I have the absolute right to be a Catholic, a Jew, an atheist, a Jain, or any other religion.  If I'm charged with a crime, I have the absolute right to a trial by jury.

Except they're not absolute.  You can criticize the president, but if your criticism extends to asserting he should be shot, some men in dark suits are going to your door to talk to you, and maybe take you with them.  You can practice the Rastafarian religion, but that doesn't mean you can smoke marijuana and get away with it.  You don't have a right to a jury trial if you don't make a timely demand for it in a misdemeanor case, and in some minor cases, you don't have a right to it at all.

The rights of the individual and the needs of society are in constant tension.  Being a democratic society, we more often come down on the side of the rights of the individual, and sometimes pretty far on that side.  But, as Albert Florence found out last week, when the question was whether the jail officials could make him strip and then squat and cough after he'd been arrested for an unpaid traffic fine, the law came down on the side of society.

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Giving a second chance

Okay, so I don't like the 8th District's work on hearsay and Crawford.  Their decisions on sentencing are a mess.   But they do a good job with 404(B) evidence, they're excellent on search and seizure, and, as they proved again this week in State v. M.D., they're about as good on the issue of expungement as you're going to find.

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What's Up in the 8th

All defendants have the right to remain silent, but some just don't have the ability.  Put Kevin Hamilton in that category.

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

Case Update

Several decisions from SCOTUS this past week, the key one being the 5-4 decision in Florence v. Bd. of Freeholders, upholding the right of the police to strip-search incoming jail inmates, even those arrested for minor offenses.  We'll talk about that one later this week.  Another was Rehberg v. Paulk, which held that witnesses who testify before a grand jury are entitled to absolute immunity from civil suit, just like witnesses at a trial, instead of qualified immunity, as some circuits had held.  Finally, the Court addressed the vagaries of immigration law in Vartelas v. HolderVartelas, a lawful permanent resident since 1989, had been convicted as a minor participant in a counterfeiting scheme in 1994.  He left for a week-long trip in 2003 to Greece to visit his ailing parents, but was denied re-admission on the basis of more restrictive immigration laws passed in 1996.  The 2nd Circuit upheld the denial and ordered Vartelas returned to Greece.

In a 6-3 decision, the Court reversed, holding that the statute couldn't be applied retroactively.  Back in Padilla v. Kentucky, the Court had detailed how immigration law had become much more restrictive since the country's founding, and especially since 9/11.  In Padilla and subsequent decisions, the Court seems to have shown some sympathy toward immigrants and some discomfort with the harshness of the law.  We'll get another chance to see whether that holds true next term:  last week, the Court granted cert in a case in which it will decide whether possession of marijuana with intent to distribute is an aggravated felony under immigration law, which can result in deportation.

The Ohio Supreme Court was busy, too, handing down several decisions, including In re C.P., which we discussed on Friday, finding that lifetime sexual offender registration for juveniles was cruel and unusual punishment.  A decision of import in the civil arena was Schwering v. TRWSchwering had sued Ford and TRW for an auto accident that had killed his wife, claiming that the seat-belt design in the vehicle created an unsafe condition.  The trial went off the rails, with the defense claiming that Schwering's expert had given testimony inconsistent with his report; the court ultimately granted a mistrial and set the case again.  Instead, Schwering filed a notice of voluntary dismissal and filed suit in Federal court.

CivR 41(A)(1)(a) allows a plaintiff to dismiss his complaint any time before trial by filing a notice.  "Any time before trial" means exactly that; I've seen cases where the plaintiff's attorney, on his way over to the courtroom on the day of trial, stops by the clerk's office and files the notice of dismissal.  The question in Schwering was whether the declaration of the mistrial wiped the slate clean because the trial became a nullity, or whether it constituted a "trial" which precluded Schwering from filing a notice of dismissal.  The court comes down on the side of the latter view.  If I did more civil work here, I'd go into more detail about it; suffice it to say that the basis for the decision is more a policy concern about the abuses of voluntary dismissal than a rigorous legal analysis.

In the courts of appeals...

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Crime and punishment

So the other day I learned what a "porkjor" was.  No, it's not some Mideastern delicacy.  It's the awkward shorthand for the acronym PRQJOR, which stands for "public-registry-qualified juvenile-offender registrant."  That's distinguished from a plain JOR, "juvenile offender registrant."

Still with me?

"Porkjor" got quite a workout in the oral argument I watched the other day, in the Supreme Court's decision last week in In re C.P.  The days of when juvenile court was viewed solely as a means of rehabilitation, and juvenile delinquents as those in need of rehabilitation, are long gone.  That's factored into not only how we prosecute juvenile offenders, but how we classify them when they commit sex offenses.  A PRQJOR is a juvenile who's been branded a Tier III offender, which means that he has to register every ninety days for the rest of his life, and the community has to be notified about his status.

In C.P., the Supreme Court held that was a violation of the Cruel and Unusual Punishment Clause, not only of the US Constitution, but the Ohio Constitution as well.

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Harmless error

The most vexing issue in an appeal is often not whether there was error, but its significance.  CrimR 52 says that errors which don't affect the "substantial rights" of the accused are harmless and can be disregarded; the Supreme Court has held that even errors of constitutional dimension can be ignored if they are "harmless beyond a reasonable doubt."

So let's say you have a case where the defendant is tied to a shooting.  During the trial, the judge allows the police officer to testify that someone told him that the defendant had previously threatened the victim.  It shouldn't have come in; it's hearsay, and it's testimonial under Crawford v. Washington.  Still, the state's got a pretty strong case:  three eyewitnesses, a positive gunshot residue test.  What's more, besides the tainted testimony of the cop, there's other evidence that the defendant harbored a grudge toward the victim, and two other people testify that he admitted the shooting to them.  You could make a pretty good claim that the remaining evidence was more than sufficient to convict.  That's how a lot of appellate courts handle the issue:  you'll find innumerable decisions shrugging off claims of error on the basis of the "overwhelming evidence" against the defendant. 

But what if I told you that, after eight hours of deliberation, the jury asked whether they could have the officer's testimony about the threat -- the inadmissible testimony -- read back to them, and that after the judge did so, they returned shortly afterward with a guilty verdict.  Or what if I told you that this happened after eight days of deliberation?  Still think the error was harmless?

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A dog's life

You're pretty sure you weren't violating any traffic laws, but the State Highway patrolman pulls you over anyway.  Improper lane change, something about not putting on your signal, maybe you didn't, maybe he just made it up...  He asks you some questions, taking his time, where you're going, where you're coming from, makes a comment about your out-of-state license plates...  You hand him your license and registration, and he has to ask you some questions about that, too.  Why doesn't he just give me the damned ticket and be done with it, you think.  And then you see the other cop car pull up, behind the first one.  The officer gets out and opens the back door, and out bounds a German Shepherd, and if you're hauling 200 keys of powder from Detroit to New York, you know this dog's not going to be your best friend.

If you're hauling them from Miami to Atlanta may be another story, though...

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What's Up in the 8th

Four years ago, in District of Columbia v. Heller, the Supreme Court held that the 2nd Amendment created an individual, rather than collective, right to bear arms.  When the decision came down, I and several other commentators made various predictions about how it would herald a revolution in firearms regulations, with courts striking down laws which infringed upon the new-found fundamental right.  As I acknowledged here, those predictions weren't exactly borne out.  In fact, they weren't at all borne out; other than a case here in Cuyahoga County involving whether a 20-year-old misdemeanor drug conviction could disqualify one from ever having a gun (case discussed here; the state later dropped the appeal), courts have gone along as though Heller was never decided.

Doesn't mean lawyers have stopped trying, though.

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

Case Update

We don't need to check out SCOTUSblog to be told that "oral argument in the health care cases continues to dominate coverage."  In fact, if you wanted to check out SCOTUSblog during the week, you might not have been able to:  the blog got 800,000 hits in that time, more in three days than in the entire first four years of its existence.  The Court's going to rule on it, probably by June 28; the argument on Monday, on whether the Court had to defer ruling on it until the tax mandate took effect in 2014, found none of the justices disposed to do so.  As to what the ruling will be, the smart money has the Court not only striking down the mandate, but tossing out the rest of the law as well.  For no particular reason I can explain, I'm taking the under.

One other decision did come out of the Court:  it agreed to hear a case on whether a dog alert gives probable cause for a search.  I'll have more on that later this week.

The only significant decision from the Ohio Supreme Court was State ex rel. McNea v. Industrial Commission, which involved the issue of whether an employee, a policeman, was entitled to temporary total disability compensation, which is intended to pay the employee for the time that he was unable to work as a result of his injury.  The question here was whether the employee was capable of sustained remunerative employment, and the court unanimously held that he was, by virtue of the fact that he was selling drugs during the time he was off work.  One of the lawyers in my office handled the employee's appeal, and he'd come up with some good arguments, but arguments, we agreed, that were not good enough to elicit approval of the premise that a police officer should be allowed to collect unemployment compensation while he's engaged in drug trafficking.  Sometimes, it doesn't really matter what the law is, it's what it should be.

In the courts of appeals...

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