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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.

The defendant's lone victory comes in State v. Santiago.  Santiago had pled guilty to rape, and when the case came for sentencing, his attorney told the court that Santiago "asked me to apologize to you through, apologize to you and apologize to the family."  The judge took a recess, came back and imposed sentence, then asked Santiago if he had anything else to say, at which point Santiago said he was "very, very sorry for what I did."  The court notes that trial judges must "painstakingly adhere to Crim.R. 32, guaranteeing the right of allocution"; this means not only "personally addressing" the defendant to ask whether he wishes to make a statement, but expressly inquiring as to whether he "wishes to present any information in mitigation of punishment."   The court's absolutist devotion to the rule is somewhat belated; just six months ago, in a case I discussed here, the court shrugged off a similar argument where the judge had not asked the defendant whether he wished to make any statement at all, but simply inquired as to the circumstances surrounding the offense before imposing sentence.  The problem in Santiago, of course, is the timing:  the judge's inquiry didn't come until after imposition of sentence.  We'll see if Santiago came up with something to tell the judge which will result in less than the nine years in prison he got, but I'm not betting on it.

A sentencing issue crops up in State v. Schneider, too, this time with fines.  The case also offers a handy tip for criminals: when you hit a bicyclist while driving drunk and flee the scene, it's best that when the police come to your house to investigate, you're not standing in the garage next to the truck you hit the kid with, pouring beer into a mug.  Schneider eventually pled no contest to drunk driving and aggravated vehicular assault, twice alternating between appointed and retained counsel in the process, and that, coupled with his ability to make a $5,000 bond, perhaps led the judge to impose the maximum fine of $10,000.  The law in Ohio is that there's no problem in imposing a fine on an indigent, as long as the judge takes into consideration his ability to pay.  Schneider argued that the judge didn't do that, but the judge had a presentence report, stated that she had considered all factors required by law, and even offered Schneider an opportunity to submit bank statements showing that he didn't have sufficient assets.  This was overkill, it turns out.  The court cites a 2010 case in which the judge did none of these things at the hearing; the court nonetheless held there that the judge's mere inclusion of a sentence in the journal entry stating that "the court considered all required factors of the law" was sufficient to meet the "low statutory investigative threshold required," leaving one to wonder whether a more obsequiously deferential standard of review could be imagined.

One might also wonder just how nuts you have to be to be declared incompetent as a witness.  State v. Smiley gives only a partial answer:  pretty damn nuts, it turns out.  The appeal from Smiley's conviction certainly didn't include an allegation of ineffective assistance of counsel; on cross-examination of the victim, Deshawn Maines, Smiley's attorney elicited the fact that he had the perfecta of mental disorders (bipolar and schizophrenia), hears voices multiple times a day, which tell him to do things.  In fact, that had happened that very morning, although the opinion doesn't inform us of the specific advice the voices offered to Maines.  Unfortunately, this discovery was not followed by a request to have Maines declared incompetent, and so it's reviewed only for plain error.  Again, the standard of review is exceedingly deferential, and for good reason.  This is one of those situations where the abuse of discretion standard makes sense, because of the trial judge's superior ability to evaluate a witness.  Even had an objection been lodged, it likely would have led nowhere; the opinion regales us with the law that "being of unsound mind does not automatically render a witness incompetent to testify" and notes that Maines' testimony dovetailed nicely with that of other witnesses, and of Smiley himself in certain portions.

Last Thursday I wrote about a shaken baby case, in which the 9th Circuit reversed a defendant's conviction for insufficiency of the evidence on three separate occasions.  The Supreme Court vacated the first two and remanded for reconsideration in light of one of their other decisions, then finally just reversed the 9th Circuit in a per curiam decision.  And a couple of weeks back I mentioned a case where the 8th District had reversed a judge three separate times in the same case on an expungement issue.  I've seen that happen numerous times before.  There are times when a supreme court's vacating a decision simply means the lower court should consider something new, but it's usually a veiled hint.

If the Ohio Supreme Court's vacating the 8th District's earlier decision in Alexander v. Cleveland Clinic was a hint, the 8th didn't take it.  I'd mentioned Alexander last year.  Basically, the Clinic had fired Alexander, a Clinic policeman, because he'd been too aggressive in trying to get a motorist to stop at an intersection:  when the driver didn't heed Alexander's warning, he struck her side mirror, dislodging it.  The Clinic found this to conflict with its policy of being nice to everybody except those seeking billing or account information.  Alexander sued, claiming his discharge violated public policy that police officers are to enforce the law, but the trial court threw it out on summary judgment.  The 8th reversed in a 2-1 decision.  I'd found the dissent to have the better of the argument in claiming that Alexander was not fired for enforcing the law, but for violating the Clinic's policies in how that was to be done.

The public policy exception to the rule allowing discharge of employees at will has a somewhat tortured history.  The (very) short version is that the public policy sufficient to prohibit discharge is not merely statutory, but may be found in other sources, such as constitutions, administrative rules, and the common law.  That's called the "clarity" element, and last year, in Dohme v. Eurand, the Supreme Court found that the element wasn't clear enough, so they clarified it.  Dohme had been canned for telling an insurance adjuster about some safety concerns he had with the company's premises, and claimed in his suit that the public policy was the general one favoring workplace safety.  Not specific enough, said the court.

The Clinic appealed Alexander I, and the Supreme Court vacated and remanded for reconsideration in light of Dohme.  Last week, in Alexander II, the majority stuck to its guns, finding that Alexander met the clarity requirement by showing "that courts in Ohio have held on numerous occasions that an employer who dismisses an employee because he or she refused to violate the law, acquiesce in illegal activity, or violate an oath of office as a condition of employment violates the public policy of Ohio."  Alexander was fired for knocking off the car mirror; how his not knocking off the mirror would have consituted a violation of the law, acquiescence in illegal activity, or a violation of Alexander's oath remains a mystery to the dissent, and to me.

It may be that this will be the end for Alexander; the 8th applied the correct standard of law, it just did so erroneously, and that's normally not enough to get Supreme Court review.  But I wouldn't be surprised if this one goes back down to Columbus for another look-see.  If it does, the next time it won't be a hint.

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