May 2012 Archives
In retrospect, I should have let myself stay fired.
Randy was a fairly volatile guy, to say the least. He'd been charged with obstructing justice and obstructing official business, and I'd been appointed to represent him. I'd gotten the discovery, and the cop's version was that they were on the lookout for car break-ins, they saw Randy's son Larry peering into cars, and when he saw them, he ran to the porch of Randy's house, where he was standing next to a pitbull when they approached. When they ordered him to show his hands, he told the pitbull to attack them. The pitbull charged down the steps, then abruptly turned around and bolted into the house, along with his owner. The cops tried to grab Larry as he was going in the door, and somehow everybody wound up in the house, with the cops trying to arrest Larry, the dog barking, Randy telling the cops that his son was a good boy, and the officers claiming that while doing this he physically interfered in their arrest of Larry. So Randy got arrested, too, and Tasered for his troubles.
I try to remain objective, and not become too emotionally invested in my cases. Sometimes that's good, but sometimes clients read objectivity as indifference to their situation. That's how Randy took it when I talked to him about the case at the first pretrial. After three minutes in which I did not jump up and down and fully agree with him that the case was complete bullshit, he told me he wanted another lawyer. My dismay at being discharged so abruptly was tempered by the fact that in those three minutes Randy had conveyed to me that he wasn't pleading to anything; my termination precluded the likelihood that I'd wind up trying the case for the $500 maximum that the county pays for assigned counsel for 4th and 5th degree felonies.
Enter my co-counsel, Don, stage left. Don was representing the son, who was charged with assaulting a police officer and obstructing justice. I'd known Don for ages, and he's a great guy, and he does get emotionally invested in his cases. Sometimes that's good, and sometimes it isn't. It wasn't in this case, at least for me, because Don talked to Randy, quickly convincing him of Don's belief in the righteousness of their common cause, and also that I could be trusted. So Randy just as quickly unfired me.
Which was too bad, as it turned out. At least for me.
"The horror... the horror..." Marlon Brando (pictured at right) in Apocalypse Now? No, me (pictured at right) after reviewing this week's batch of decisions from the 8th District, in which criminal defendants come out on the losing end in each and every one. That doesn't mean they were bad decisions, although it appears that the court was single-mindedly intent upon disabusing me of the notion that the 8th District is the most 4th-Amendment friendly court in the state. In fact, the 8th affirms the denial of a suppression motion in not one, but two separate cases, the first time that's probably happened since the Carter administration.
The big case from SCOTUS this week was Blueford v. Arkansas. Blueford was charged with capital murder for the death of his one-year-old son, and at trial the jury was given three other possible verdicts -- first-degree murder murder, manslaughter, and negligent homicide -- and told that they must unanimously vote to acquit on one before moving to the lesser offense. The jury foreman reported that they were deadlocked, and when asked in open court as to the status of the deliberations, he stated that the jurors were "unanimous against" the capital and first-degree murder charges, and were deadlocked on the manslaughter. They were unable to break that deadlock, and the judge declared a mistrial. Blueford file a motion to prevent his retrial on the capital and first-degree murder counts, but the Arkansas courts denied that motion.
The law is clear that conviction of a lesser charge constitutes an acquittal of the greater, and if the case is subsequently reversed, the defendant faces retrial only on the lesser. It doesn't matter whether a state follows a procedure like Arkansas', where a jury is not permitted to consider a lesser offense until it has decided to acquit on the greater, or like Ohio's, where a jury can move on to consider a lesser offense without deciding the greater one; in the latter case, conviction of the lesser operates as an "implied acquittal" of the greater. Blueford's problem was that the foreman's announcement didn't constitute a vote of acquittal; the jury would have been free to reconsider capital or first-degree murder. At least, that's what six of the justices concluded in Blueford, affirming the denial of his motion, with Sotomayor, Kagan, and Ginsberg dissenting.
Other big news out of SCOTUS: this Friday the Court will update its web site capabilities to "improve the mobile device user experience." Something envisioned by John Marshall, no doubt. Now, when I'm sitting in court bored out of my skull waiting for the three plea hearings before mine to be concluded, instead of playing Tetris on my iPhone, I can read about the Court's latest effort to turn the Bill of Rights into an historical curiosity.
Down in Columbus, the big case was State v. Eafford. Five years ago, in State v. Pelfrey, the Supreme Court held that a verdict form had to include either he degree of the offense or that the aggravated element had been found. Eafford's verdict form found him guilty of "possession of drugs in violation of RC 2925.11(A), as charged in count two of the indictment." The 8th District found this insufficient because it didn't specify that the drug involved was cocaine. The Supreme Court reverses, spending little time with Pelfrey and instead determining the case on a plain error standard: considering the indictment, the evidence, and the jury instructions, Eafford's "substantial rights" weren't violated because it was clear that he, along with everybody else, understood that he was being charged with possession of cocaine.
The court didn't overrule Pelfrey -- indeed, it mentioned it twice, and only in passing, in the context of the arguments the parties were making -- but it might as well have. This issue will never be reviewed for anything other than plain error, because this is simply an error of omission; if the attorney raises the issue, the verdict form will be corrected. This leaves Pelfrey to apply only to cases in which the trial occurs without any mention of exactly what the defendant is being tried for. Good luck with that.
On to the courts of appeals...
A bedrock principle of the Anglo-American justice system is that it's preferable for 100 guilty men go free than one innocent person be convicted, and in the main we observe that. Any criminal defense lawyer who's been doing this for a substantial period of time has his "guilty client" stories: cases where he was fairly certain that his client was guilty, but where the jury acquitted. In probably two-thirds of the cases where I've talked with the jury after an acquittal, they've told me they thought my guy did it, it's just that they didn't believe the state had proved it.
But any criminal defense lawyer who's been doing this for a substantial period of time also has his "innocent client" story. Mine's about a guy named Derrick. I represented him about 30 years ago in an arson case. There was no question in my mind that it was a case of mistaken identity, but I was fairly inexperienced, and had a bad judge. Derrick got convicted, and got the maximum 18-year sentence. I can't tell you how many times I've wondered over the years whether that was because I screwed up somewhere during the trial. That affects you a lot more than the "guilty client" stories, and it should. The notion of a guilty person escaping punishment is upsetting, but the idea of an innocent person spending years in prison for something he didn't do is outrageous. The thought that you might have contributed to that is a painful one. It's for that reason that most defense lawyers regard the worst client to have is an innocent one.
So just how many innocent people are convicted?
A reader left a comment the other day pointing to an article in the Dayton Daily News that Greene County judges had adopted a new procedure, in light of the Supreme Court's decision in Missouri v. Frye, to make sure that defendants have been properly advised of plea bargain proposals. . The fanboy inclusion in the comment that this was "just as you predicted, Russ," was appreciated, but sadly, this was not demonstrative of any great prescience on my part: given a Supreme Court decision saying that a defendant's conviction could be tossed if it turned out that he wasn't advised of a favorable plea bargain, you didn't have to be the sharpest knife in the drawer to figure that trial courts would take the extra step of making sure that a defendant was advised of the plea bargain, if only to avoid "going through all these things twice, as Bob Dylan put it in Stuck Inside of Memphis with the Mobile Blues Again.
The article instead casts the decision as based on economics: the procedure "could prevent costly appeals [for which] taxpayers would have to pick up the tab." This "it's all about fairness" argument reaches its apogee with the quote from the prosecutor that "we've got to make sure this is fair. Frankly, that's my job... we've been called the ministers of justice." Well, yes, and with that and some people calling you a space cowboy, and some calling you the gangster of love, we've got a Steve Miller Band hit song on our hands. While some of my best friends are prosecutors -- although I wouldn't want my daughter to marry one -- on the list of things I call them, "ministers of justice" is somewhere near the bottom of page 12.
A couple weeks back, I did a post about a brewing controversy here in the lovely environs of Cleveland: a county prosecutor had subpoenaed all the records of a defense investigator, including "a certified copy of all interviews, reports and notes taken in regards to the above matter." That seemed to toss concepts of attorney-client privilege and work product into the wood chipper, I suggested, to say nothing about being far in excess of anything allowed under the discovery rules. The defense filed a motion to quash, the investigator hired an attorney, and the morning my post appeared I got a call from someone in the prosecutor's office. A day later, the subpoena was withdrawn, and the whole thing went away.
I couldn't resist using the situation to take a shot at Bill Mason's shop, noting that "the 8th District and. . . the Supreme Court have been increasingly critical of the prosecutor's office here, and if they get wind of this, it's not going to make things any better." There's some truth to the criticism. One of my all-time favorite oral arguments was in State v. Davis, involving the issue of spousal privilege, which no one -- not the prosecutor, the defense attorney, nor the judge -- had thought to raise until the 8th District did so sua sponte. When time came for oral argument in the Supreme Court, the gang in the appellate division decided it was a good idea to bring along the prosecutor who'd tried the case, only to have him sit there and listen to Pfeifer rant about how this was "another case out of Cuyahoga County where the rules of evidence are as plain as a barn door and it's just ignored by the prosecutor. How much incompetence do we have to continue to tolerate?"
Be that as it may, there's certainly one thing that this prosecutor's office does a very good job of: getting the Supreme Court to take cases. A couple of weeks back, the Supreme Court accepted five criminal cases, all by 4-3 votes. Three of them were from Cuyahoga County. Let's take a look.
Here in Cuyahoga County, the discovery procedure is pretty routine. The defense files its request for discovery, and usually within a day or two, the responses -- reports, statements, the client's criminal record -- are uploaded to the Defense Portal, and an email sent to the attorney telling him that it's there. He can then log in and download it. There's also one other document on the Portal: the State's demand for discovery.
What every defense attorney should do at that point is file a response to it. Doesn't matter that you don't know who your witnesses are going to be, or what documents you're going to provide. Doesn't matter that in all likelihood you won't be calling any witnesses or presenting any documents at trial. Just file a simple pleading saying that you don't have any witnesses or documents you intend to introduce, and if that changes you'll supplement your response.
The reason for doing this is to keep speedy trial time from being tolled. Five years ago, in State v. Palmer, the Ohio Supreme Court held that a defendant's failure to respond to the State's discovery request after a "reasonable time" tolled the speedy trial statute. In that case, the court found that the reasonable time was 30 days, but it gets worse; there are 8th District cases out there which hold that the time is tolled from the point where the State files for discovery, under the dubious theory that the failure to respond to discovery is a "continuance." (And yes, "dubious" is a charitable assessment of the theory.)
So the 8th District's decision last week in In re D.S., dismissing a juvenile conviction for murder and felonious assault on speedy trial grounds, was all the more surprising, since the defense had never responded to the discovery demand at all.
The only decision from the US Supreme Court last week was US v. Hall, which presented an issue of whether... oh, something about bankruptcy and tax law. If you came here expecting to read something about bankruptcy or tax law, let alone both, it is my sad duty to disappoint you. Back in the heyday of the "legal clinic" craze, a couple of other guys and I went into something like that, and I had some exposure to bankruptcy law. Not much, but enough to know that I'd clean toilets before doing that for a living. I'd already made the same decision with regard to tax law, and have since added domestic and personal injury to the list. But at least I'll occasionally talk about cases involving the latter two. Bankruptcy and tax law, no.
With only five weeks left to go in the current term, and 25 argued cases yet to be decided, the pace of decisions can be expected to pick up. The big talk about SCOTUS revolved around an article in the New Yorker by Jeffrey Rosen about the Court's 2010 decision in Citizens United, which undid about a hundred years of precedent by holding that corporations were "people" within the meaning of the First Amendment, and thus were able to freely contribute to political campaigns. Rosen's piece, taken from his upcoming book on the Court, argued that Chief Justice Roberts could have based the 5-4 decision on narrow statutory grounds, but instead chose to go with a much broader interpretation. Who knows where the truth lies, but the effects of the decision are on vivid display this election cycle, with "Super PACs" spending ungodly sums of money to tell us just how loathsome the current candidates are. The most recent effort in this regard was by Joe Ricketts, a billionaire who owns the Chicago Cubs among other things, and who was willing to invest a large sum of money in ads resurrecting the brouhaha about Obama and the Reverend Jeremiah Wright, only to back down this week when Mitt Romney criticized the move. The present state of our electoral system is no better demonstrated than a memo to Ricketts proposing the ads and expressing frustration that voters "still aren't ready to hate this president." Well, then, there's work to be done; can't have an election where both sides aren't satisfied to merely dispute their opponents' proposal, but must subject him to complete vilification as well.
Nothing new from the Ohio Supreme Court, although there are some oral arguments scheduled and some new cases accepted, and I still haven't done that post about the court's handling of the GPS cases. Maybe I'll bundle that all together in a post or two this week.
In the courts of appeals...
A prosecutor in a county near here used to have a policy of not plea bargaining. His office charged you with exactly what crime he thought your client had committed, and your client pleaded to that or you went to trial. There were exceptions to that; sometimes new information would develop that would warrant a reduction. But the defendant usually wound up pleading to something very close to what he was originally charged with.
The prosecutor's office here in Cuyahoga County has historically pursued the opposite course: they will charge a defendant with every possible crime, and figure that your client will plead to something less to avoid more serious consequences. I recently had a case where the police responded to a call of a "mental male"; my client, who was schizophrenic, was having a psychotic episode. While the cops were talking to his father, my client approached and told the police that he was going to kill them. He was holding a hot dog and a can of soda at the time. They wrestled him to the ground, and, without further trouble, handcuffed him and took him to the psych ward of a local hospital. He was charged with aggravated menacing, a 1st degree misdemeanor.
And with assaulting a police officer, a 4th degree felony, and with intimidation of a crime victim or witness, a felony three. When I went for the first pretrial, the prosecutor read the file, looked up at me, and said, "Why'd they charge him with the felonies?" "I was kinda hoping you'd tell me," I said, smiling brightly. That wasn't quite as bad as the case I'd had a year earlier, where my client got indicted for four counts of aggravated robbery, felonious assault, and kidnapping for trying to rob four people with a plastic toy gun, which they promptly took from him and beat him with it. The indictment included 3-year firearm specifications. "I guess they didn't look at this real closely in the grand jury," the prosecutor told me on that occasion. "Guess not," I said, smiling brightly.
Back when the Supreme Court handed down its decisions a month ago in Missouri v. Frye and Lafler v. Cooper, I spent several posts analyzing the decision (here and here), and looking at it in detail from the perspective of the defense attorney (here) and the prosecutor (here). I didn't shortchange judges completely. In light of Frye's reversal of a conviction where the defense attorney had neglected to advise his client of the state's plea offer, I noted that
A few judges here routinely hold a hearing in advance of trial where the plea offer is read into the record, and some lawyers insist on having that done just prior to trial. I think that is going to become commonplace now; there isn't going to be a case that goes to trial with the defendant uncertain as to what the plea offer is.
As the 8th District's decision a couple weeks ago in State v. Green indicates, there are some dangers in that approach: when does a judge's informing a defendant of a plea bargain cross the line into coercing the defendant to take it?
It's been my view that some people are just very bad at making decisions in life, and that criminal defendants are vastly over-represented in this subset of the population. Not intending to adopt a "blame-the-victim" mentality, but that often applies to them, too. In State v. Dowdell, for example, we are introduced to Bruce Edwards, Dowdell, and their mutual friend "Lemon," and are told that on the relevant date "Edwards went to Lemon's house for a barbecue and a day of drinking." We sense this will not turn out well.
It doesn't. By the time Dowdell got there, Edwards already had two hours of drinking in the rear-view, and the two began "playing the dozens," a game in which the participants trade insults. It's normally less lethal if done by 10-year-olds and the subject does not include each others' girlfriends. Long story short, Edwards winds up the worse for it. He claims Dowdell had a gun, Dowdell denies it, and the judge in a bench trial sides with Dowdell, but nonetheless convicts him of simple assault and aggravated menacing. Various life lessons are taught in the case, but a single legal one. There's a well-established presumption that a judge in a bench trial only considers relevant, admissible evidence, but the 8th District a month ago inIn re C.T. (discussed here) carved out a notable exception to that rule: the presumption doesn't apply where the judge admits evidence over defense objection. Dowdell creates an exception to the exception: where defense counsel doesn't object to inadmissible evidence, the trial judge will be presumed to have disregarded it.
Three companion cases -- State v. Rivera, State v. Theodus, and State v. Koernberg -- present defendants and the victim, a 15-year-old girl, making more bad choices. In the victim's case, it is to run away from home, drink and do drugs, and hang out with people she doesn't know; in the defendants', it's to think that it would be a good idea to have the girl perform oral sex on each of them. That results in convictions for rape for each of the three under the subsection prohibiting sexual activity with someone who is "substantially incapacitated."
I handled the appeal in Rivera, and the reversal of the convictions in all three cases is interesting on a number of levels. First, there's not a lot of law on what constitutes substantial incapacity. The only Supreme Court case on the subject deals with it in the context of mental retardation, and a number of appellate court decisions have seemed to conclude that evidence of intoxication is sufficient. To its credit, the panel here (the same panel heard all three cases) did not: it does an excellent job of sifting through the evidence, noting that here there was little more than evidence that the girl had consumed some liquor, let alone that she was intoxicated, let alone that she was incapacitated, let alone that the defendants had reason to know that she was incapacitated, which is what the statute requires. The decision is of necessity quite fact-specific, but it's an excellent starting point if you're defending a case like this.
The second interesting thing about the case was how differently it played out on appeal from how it played out at trial. The girl had originally told everyone that the sex was consensual, and only a month after the incident began to claim that she was forced into it. That reverse recantation became the focal point of the trial. Most of the defense effort was expended on the consent issue, and they were successful in that: the jury acquitted on the counts alleging rape, sexual battery, and gross sexual imposition by force (except for Theodus, who was convicted of the latter count), but convicted of incapacity counts for each of those offenses. That's not to fault any of the trial attorneys, it's just to note that what might seem to be the significant issue at trial may not seem that way with the benefit of the 20-20 hindsight that an appellate lawyer brings to the case. In any event, the court vacates all the convictions for insufficient evidence, except for Theodus' GSI conviction, which it reverses and remands on manifest weight grounds.
The third interesting thing about the case is that the court even vacated the count of unlawful sexual misconduct with a minor, finding that the State's failure to introduce any evidence of the defendant's ages meant that it failed to meet the element of showing that the defendants were 18 years of age or older. This despite the fact that none of the defendants raised that issue, at trial or in the appeals. I argued that the conviction was a misdemeanor because the State didn't show that Rivera was more than four years older than the victim, and the other appeals didn't even raise that conviction. Oh, well, as that great bard Ringo Starr once wrote, "with a little help from my friends"...
The War on Drugs is not a misnomer; it bears numerous similarities to actual warfare. One of them is that each side constantly modifies its tactics. One of the more recent ones developed by the police is the "knock and talk," widely practiced in the projects: police will go to an apartment where they suspect drugs are being held or sold, knock on the door, and engage in the tenant in conversation. The purposes for doing so were the subject of some dispute -- among the detectives -- in State v. Clark. One denied that the goal was to gain entrance to find contraband; it was simply "to engage a suspect in a conversation to determine whether the allegations about the individual have any merit." The other detective was more forthright: he acknowledged that the purpose of the "knock and talk" was "to develop probable cause and make an arrest" and that the police conduct "knock and talks" when they lack probable cause for a search warrant.
In any event, the "knock and talk" proved successful in Clark's case: according to the police, when they asked Clark if they could come in to discuss the complaints about him, he allowed them in, where they observed substantial quantities of marijuana in plain view. Clark denied that he'd consented to the entry, but the judge found that he had.
Normally, that would be the end of it: the appellate court will almost always defer to the factual findings of the trial court. Almost. As the panel in Clark notes, while it must accept the trial court's findings of fact as true, applying those facts to the legal standard is the job of the appellate court. The legal question is not merely whether Clark consented, but whether his consent was voluntary. The court enumerates a list of eight factors to consider in determining that question, and noting that the detectives were accompanied by two other police officers and two uniformed security officers, finds this to be a a force which is "inherently coercive" such as to make any consent involuntary. In fact, the deference to the trial court's findings is far from absolute; the opinion notes that the officers claimed there was an "immediate" and "overpowering" smell of raw marijuana as they stood in the doorway. Clark would have been just as aware of this smell, the court suggests, and in that light, the conclusion that Clark "would have voluntarily invited the police in to his apartment under such circumstances is highly suspect." The concurring opinion rightly cautions that "the use of a 'knock and talk' policy where police are unable to secure probable cause by other means, is a slippery slope that invariably erodes the protections of the Fourth Amendment."
Last term, in Kentucky v. King, the Supreme Court upheld a search where the cops banged on an apartment door and yelled "police," and, when they heard movements inside, broke down the door. When I discussed the case, I contended that it would lead to "a further diminution of 4th Amendment rights." Kudos to the 8th for recognizing that, and protecting against it.
No opinions from SCOTUS this past week, although some are anticipated today. With the big decisions on the Arizona immigration law and Obamacare due to come out in the next six weeks, it was interesting to see a Pew Research poll showing public approval of the Supreme Court to be at 52%, a 25-year-low. Various pundits have sifted through the entrails, noting that this comes at a time when the Court's partisan divisions have never been starker: all the Republican appointees are conservative, and all the Democratic appointees are liberals. (Justice White proved quite conservative despite being a Kennedy appointee, and Blackum, Souter, and Stevens were all appointed by Republicans.) Somewhat puzzling is the fact that the decline in approval by Republicans has been sharper than by Democrats, despite the fact that, at least to some, it's the most conservative Supreme Court in the past 75 years. In any event, the Court still scores higher than either of the other two branches of government; indeed, the percent of the population that approves of Congress' performance hovers around the proportion who believe in UFO's or are sure they saw Elvis working at the local 7-11.
Down in Columbus, the Supreme Court handed down six criminal decisions. Five of them were GPS cases, specifically, whether the police were required to obtain a warrant before placing a GPS device on a car and tracking it. All five of the opinions were worded identically: the cases were reversed and remanded for consideration in light of the US Supreme Court's decision earlier this year in United States v. Jones. We'll discuss that in more detail later this week.
The other decision was State v. Lloyd, which presented the question of how a court is to evaluate an out-of-state conviction for a sexual offense in determining what duty the defendant has to register here in Ohio. Lloyd had been convicted of aggravated sexual assault in Texas, and the court determined that the offense was "substantially equivalent" to rape. It did so by using the "modified categorical" approach the Federal courts use in determining whether a state offense triggers the enhancement under the Armed Career Criminal Act, and the resulting application of the ACCA's additional 15-year minimum sentence. Whether that's a good idea is another story; to borrow Rehnquist's phrase, the case law on the ACCA is something less than a seamless web, and resorting to that for clarity in legal analysis is sort of like looking to Joyce's Ulysses for lessons in clarity of writing.
The bottom line is that a court in analyzing the issue is not limited to a comparison of the elements of the crimes, but "may consult charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, jury instructions, and jury verdict forms, or some comparable part of the record" in determining whether the two offenses are equivalent. After all that, it turns out that it didn't matter: in order to convict Lloyd of any sex offender registration, notification, or verification violations here in Ohio, the State had to prove that he had a duty to register as a sex offender in Texas, and it never got around to doing that.
In the courts of appeals...
If you want to get back to your roots as an American, there's not much that can beat a trip to Washington, D.C. My wife and I did that for a couple days last week.
We saw some new stuff. The Martin Luther King Memorial was just okay; both of us thought they could have done more with it. And we saw some old stuff. There's only one name on the Vietnam War Memorial that I know: Joey Meyer. I went to high school with him. He was a year behind me, and dropped out before he graduated and joined the Marines. He died on the 4th of July, 1969. I've looked, but I've never been able to find his name.
The Lincoln Memorial is probably my favorite. The statue is wonderful, and there's the inscription of the Gettysburg Address on one wall, and his Second Inaugural on the other. The latter is always remembered for the "with malice toward none, with charity for all" line, but the part I'm always drawn to comes a paragraph before that. The war was to end a month later, and its outcome wasn't in doubt, but still Lincoln recognized the roots of the conflict, where he posed the possibility that God might will the war to continue "until all the wealth piled by the bondsman's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword."
The American History Museum had a special exhibit on Thomas Jefferson and the slaves at Monticello. Jefferson as a slaveowner was hardly a novelty; twelve of our presidents owned slaves, and eight of them owned them while serving as president. Of course, none of the other ones wrote stuff about all men being created equal, either, and in Jefferson's prolific writings we can see him wrestling with the slavery issue. And ultimately losing. He died owing about a hundred thousand dollars (about a million to us) , and under the impression that a public lottery would be held to pay off those debts and allow the family to keep Monticello. Didn't happen. About three years later virtually all of the property was auctioned off. The exhibit had a clipping of the announcement of the sale: the lead item was the "130 valuable negroes" who could be purchased, the ad noting that "the negroes are believed to be the most valuable for their number ever offered at one time in the State of Virginia."
We stopped at the Antietam Battlefield, about an hour's drive out of Washington, on the way home. I'm a Civil War buff. I grew up about 30 miles north of Gettysburg, and have been to the battlefield there God knows how many times. For my social studies project in high school, I did a 3-dimensional map of the battlefield, with plastic overlays showing the positions of each brigade of each army over the three days of the battle. That was accompanied by a 37-page typewritten paper on the subject.
I didn't date much in high school.
I like Antietam better, though. Gettysburg was a fascinating battle, but it's weird to be standing on Cemetery Ridge, at the precise spot where Pickett's Charge was finally repulsed, and look to your right and see a McDonald's. Antietam isn't like that. It probably gets 5% of the visitors that Gettysburg does, if that; in the two hours we spent touring the battlefield, we never saw more than a half dozen people in any one place. So there's no commercialization; it's just about exactly the way it was when the two armies fought there on a single September day 150 years ago. Over twenty-three thousand of them fell dead or wounded -- more than the casualties America suffered in the Revolutionary War, the War of 1812, and the Mexican War, combined. That was a small part of the butcher bill for being able to sell those "130 valuable negroes."
See you tomorrow, when we'll go back to talking about law.
No decisions from SCOTUS this week, and none expected next week; there are 26 cases which were argued and have yet to be decided in the seven weeks remaining in the term. Attention is already turning to some of the cases in the pipeline for next term, and one petition up for consideration in the justices' conference on Thursday is Robbins v. Texas, which considers the issue of whether a defendant is entitled to a new trial when the expert medical witness whose testimony convicted him now deems that testimony wrong, in light of subsequent developments in forensic science. The Court is being asked to determine the fine distinction between a defendant who's "actually innocent" and one who has been convicted on "false" testimony, and perhaps will also consider whether there should be a distinction. Not being considered at the conference, but working its way toward the court, is a case in which Maryland's high court threw out a law allowing the state to obtain DNA from anyone was was arrested, as opposed to convicted, of a crime. The result was the reversal of a rape conviction based almost solely on the DNA evidence.
A couple years ago, the 8th District decided in State v. Harris that the failure to impose a mandatory fine or a mandatory drivers license suspension in a drug case rendered the sentence void. This was during the heyday of the "void sentence" debate, which stemmed from the Supreme Court's decisions holding that failure to properly impose post-release control made the sentence a nullity. The problem with this was noted in several quarters, including here: if a sentence was void, did that mean the conviction was, too? Since there wasn't a valid sentence, and hence no final order, did that mean the original appeal from the conviction was void as well, removing any res judicata effects. The court finally peered over the abyss into the logical consequences of those decisions, blinked, and held in State v. Fischer that only the PRC portion of the sentence was void. Last week, the Supreme Court reverses the 8th District in State v. Harris, holding that only the mandatory fine and drivers license suspension portions of the sentence are void, and thus require resentencing only to those issues.
Pardon me, but is this trip necessary? Doesn't it make more sense to hold that if a judge fails to impose a fine, or a license suspension, that makes the sentence voidable, and if somebody appeals, you send it back and fix it, and if they don't, you don't? I understand that you can't do that with PRC, since the only way to get around the separation of powers problem of having the Adult Parole Authority impose a prison sentence is to perpetrate the fiction that it's the judicial branch that's actually imposing the sentence by "authorizing" the APA to do it. But there's no need for that fiction with stuff like fines and suspensions, and continuing the "void" charade is going to lead to problems down the road, just as it did with PRC.
Let's see what problems the courts of appeals are encountering, and how they're resolving them...
Every now and then I do a civil case, and I always marvel at how easy it is. You mean I don't have to wait until witnesses testify to know what they're going to say? I get to send the other party written questions they have to answer, and then I get to take their depositions -- in fact, I get take the depositions of anybody I want -- well before the trial ever starts? It always reminds me of a scene in Crocodile Dundee where he and the woman he's escortingwhere are accosted by three thugs intent on a mugging. When one pulls out a a switchblade, Dundee looks at them and sneers, "That's a knife?" He then pulls out something similar to what Jim Bowie had at the Alamo, gazes lovingly at the 14-inch blade, and says, "Now this is a knife!" Same thing. Now this is open discovery.
Apparently, there are some prosecutors in Cuyahoga County who don't understand the difference between civil and criminal cases when it comes to discovery.
If you're a judge, sometimes it's hard figuring out what sentence to give a person. Sometimes it's easy. But just because it's easy doesn't mean you can do it, as we discover from a couple of 8th District cases last week.
Perils of representation. As with most people, I've made good career moves and bad ones. Starting this blog was a good one. Becoming eligible to handle cases on the common pleas court's mental health docket was not. It's three times the work, for the same amount of money, and sometimes you think maybe you should get combat pay. In one of the first mental health cases I had, I went over to the jail to visit the client, and was told that the "Tac Squad" was bringing down my guy from the security ward. Sure enough, a short while later he was led out of the elevator by four guys in black uniforms who looked like they went to the beach and kicked sand in the face of bar bouncers. My conversation with my client was abbreviated when he found something I told him unsettling, and responded by shouting and slamming the phone down so hard it broke. I beat a hasty retreat as the Tac Squad decided it was dogpile time on my client.
These cases have allowed me to read a lot of competency reports, however. They're pretty much the same: they'll give a history of the client's mental illness, then the results of a series of questions posed to him to determine his understanding of how criminal proceedings are supposed to work. The report usually ends with a finding of competency, especially given that the threshhold for that appears to be the ability to distinguish the judge from a rutabaga.
But the reports (and the case law) also focus on the client's ability to assist his attorney, so I was somewhat puzzled when I ran across this story (h/t to Legal Blogwatch) about a murder trial in which the judge has ordered the defendant, Joshua Monson, to be seated at a separate table from his lawyer. Hard to assist your attorney if you can't talk to him.
It seems that Monson is to blame for this problem. He's on his fourth lawyer, having stabbed the previous three with pencils he'd smuggled. (Lowering the Bar's take on this produced the paradigmatic example of "the headline tells it all" story: "Man Who Stabbed His First Two Lawyers With a Pencil Stabs Another Lawyer With a Pencil," although in the last incident it seems Monson used the lawyer's own pen.) It should be noted that this didn't take place in a holding cell or at the jail; the third incident occurred when Monson stabbed his lawyer in the side of the head while the prosecutor was giving his opening statement.
But things are going well in Monson's murder trial, at least for now; as the news story recounts, with no hint of irony, "No lawyers were injured on Thursday as a murder trial got under way for an Everett man accused of stabbing three of his previous attorneys." This naturally led to Lowering the Bar's headline, "Fourth Lawyer Not Yet Stabbed With Pencil in Trial of Man Who Stabbed Three Lawyers With a Pencil."
And here I thought I made some bad career decisions.
For the woman who has everything. My wife's got a birthday coming up, and I've been wracking my brain trying to come up with what to get her. As you might imagine, I've already showered her with all the diamonds and furs and other baubles that any women could want. Then again, living with me isn't exactly a day at the beach, so I've got to come up with something.
Then I came across several stories about how gun sales are at an all-time high in this country, and I remembered this picture of actress Summer Glau from the TV series The Terminator, and an idea formed: I'll get Summer Glau for my birthday! Hah-hah, just kidding, honey. No, I've decided to get my wife a gun.
That's not as far-fetched as it sounds. As this story notes, there are some 15 to 20 million women packing heat in this country. In fact, some gun stores now carry a line of weapons specifically designed for women. Bud's Gun Shop, for example, which has the slogan -- wait for it -- "More Bang for the Buck," features a "Guns for the Ladies" department; the first item in the catalogue is a .22 long rifle with a pink stock. That's not to suggest that the marketing is sexist; while no self-respecting male would be found with such a weapon, some of the other items in the Ladies Department, such as the Sig Sauer Compact 9 mm, could be carried around without having an adverse effect on one's testosterone levels. It should be noted, though, that the Smith & Wesson .38 Special revolver with the pink handle is currently out of stock.
Now, I know what you're saying. Sure, Russ, she'll no doubt love that nifty little Walther PPK .38, but accessorizing a gun is different from figuring out the appropriate scarf or pair of shoes to fit your wardrobe. Enter Woolrich's, a company selling clothes for close to two centuries, which, according to this story, has decided to enter this market with the Elite Concealed Carry line. No, I'm not making that up: also called "covert fashion," it features things like a lightweight water-resistant vest which "includes a stealth compartment in front so the wearer can appear to be warming his hands while actually gripping a pistol in a waistband holster."
Is this a great country or what?
Woolrich's line seems directed at men, but it's probably only a matter of time before the little black dress has a compartment for carrying around that Glock. The one with the night sights, of course; never know what the little lady is likely to encounter while on an evening out on the town.
So you're a judge, and the first case on your docket this morning is a sentencing. The 48-year-old defendant -- we'll call him Joe -- was charged with 38 counts of distribution or possession of child pornography, and pled to 21 of them. The defense attorney's done a bang-up job: he had the guy go into treatment, and there are a number of reports indicating that Joe responded well to that. There's a report from a psychologist that indicates it's very unlikely that Joe would actually molest a child, and the testing by the court psychiatric clinic pretty much confirms that. Joe's never been in trouble in his life and has a good job, and the sentencing memorandum submitted by the defense is full of glowing recommendations by others and a statement of apparently heart-felt contrition by Joe.
Then you being reading the State's sentencing memorandum, and this is how they describe the first file they found on his computer:
"This is a compilation of video clips where the predominant theme is that of an adult nude male standing either over or in front of nude pre-pubescent females and ejaculating into either their mouths or their vaginal areas. In many of the clips the girsl are either crying or grimacing and in those instances the clip is repeated over several times. In a number of clips, the suspect is either holding the head of the child or the hair of the child, forcing that child to participate. In a number of other clips, the adult males are shown vaginally penetrating very young pre-pubescent females."
You scan the rest of the page, see a reference to another video where "the ages of the prebuscent girls range from 2-12 years old," and set the memorandum aside.
Jesus, you think to yourself, It's a good thing the guy pled or I'd have had to watch this stuff.
Oh, for the good old days of State v. Rance. Sure, its test for allied offenses, as the Supreme Court later confessed, led to "inconsistent, unreasonable, and, at times, absurd results" -- and that came almost three years before the court overruled Rance in State v. Johnson -- but at least at the appellate level all you had to do was compare the elements of the crimes. Except in rare cases, you didn't have to mess around with the facts. If somebody decided to use his girlfriend's face as a punching bag, he could be convicted of both felonious assault and domestic violence because the elements didn't align: it was possible to commit one without committing the other. The End.
Johnson, by refocusing attention on the defendant's conduct, changed all that. Now, appellate courts have to parse the record to determine whether the crimes were committed with the same conduct, as the 8th District did last year in State v. Waltzer: the defendant had pushed his wife down on the porch, then followed her into the house, grabbed a knife, and cut her. The change in location and elevation of violence, the court held, was enough to allow conviction on two separate offenses.
But Waltzer came up on an appeal from a trial. What happens when the case comes up on a plea, especially where neither the judge nor the parties even raised the issue of allied offenses?
Maybe it's something the water around here. Three years ago I told you about the case of State v. Majid, in which the 8th reversed a murder conviction because numerous jurors dozed off during the proceedings. There was ample evidence of this -- e.g., the trial judge's observation, "Let the record reflect that Mr. Brown is asleep again with his mouth agape, snoring as well" -- and the court found this to be a violation of the defendant's due process right to a jury that was at least semi-conscious. The somnolent juror rears -- or drops, I guess -- his head again this week in State v. Allen. The defense identified two jurors as the culprits, but the trial court removed only one, allowing the other to remain on the panel "after determining that [the juror] was not sleeping."
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