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?
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