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July 2012 Archives

What's Up in the 8th

I had an oral argument last week where my only assignment of error was manifest weight of the evidence, and I had an epiphany.  Manifest weight is to an appellate lawyer what the Holy Grail is to King Arthur:  you're sure it exists, but you have to take that on faith, because you've never really seen it.  I've been doing this blog for over six years now, and I've read God knows how many appellate decisions, and off-hand I can't think of one where the conviction was reversed on a manifest weight argument.

We almost got there this week, though...

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Case Update

Only 149 shopping days left until Christmas (and exactly zero non-shopping days), but if you're reading this, you know that the much more pertinent figure is that only 63 days remain until the Supreme Court's next term begins.  Sure you do.

At any rate, we continue our weekly countdown toward that with another pre-preview of cases that the Court will be considering when The Nine convene again.  Two come from Florida, and concern canines who do not qualify as man's best friend (at least, certain men):  the drug-sniffing dog.  In Florida v. Jardines, the cops had received a tip that Jardines was growing marijuana, so they had a dog sniff outside his house.  Sure enough, Officer K-9 promptly sat down at the front door, and the cops used this to get a warrant.  The courts have fairly consistently held that a dog sniff is not a "search" within the meaning of the 4th Amendment, but those cases have been in the context of a sniff of the exterior of a car, or a package in an airport terminal.  The Florida Supreme Court distinguished those cases, though, holding that the home is entitled to a greater privacy interest, and the sniff there did constitute a search.

The other case, Florida v. Harris, involves a different aspect of search and seizure law, probable cause.  Harris' vehicle had been stopped for a traffic violation, the cops suspected Harris was high, and the dog alerted at the driver's door handle; the cops used that as a basis for searching the glove compartment, and found drugs.  The court in Harris reversed that, too, finding that there wasn't sufficient proof of the dog's reliability.  (I discussed Harris in much more detail here.)  In any event, either or both cases could have a dramatic impact on 4th Amendment law, and I'll have much more to say about them down the road.

That road also winds through Columbus, at least on Mondays, but not this week:  other than three extraordinary writ decisions involving small claims court jurisdiction, newspaper access to public records, and civil service, nada.  (And to clarify, they were three decisions about extraordinary writs, not three extraordinary decisions about writs.)  The court did accept one appeal of a criminal case, involving the question of whether Megan's Law offenders can be prosecuted for violating their reporting duties under the Adam Walsh Act if the violations occurred after AWA's effective date, but the court already has a case pending on that issue, so only granted the appeal and held it until it's decided the other case.  So let's head over and see what the courts of appeals have been doing...

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SB 337 and fresh chances

If you're marketing beer, the major statistic you need to know is that 80% of beer is consumed by 20% of the consumers.  If you're running a criminal justice system, the major statistic you need to know is that 80% of crimes are committed by people who've committed crimes before, and often have been imprisoned for doing so.

For a long time, the response of our criminal justice system to that statistic was to lock more people up for longer periods.  There's a limit to how much you can do that, though; overcrowding in California prisons led to last year's Supreme Court decision in Brown v. Plata (discussed here), which will result in the release of about 46,000 inmates.  And even without that, you can't keep people locked up forever; this year, about 8,000 people will be released from Ohio prisons and will be returning to their neighborhoods.  If you can't keep them locked up, you have to try to reduce the chances of them committing another crime, which is why Re-Entry is the New Big Thing in criminology.

There are a lot of aspects to that.  Maintaining the inmate's ties with the community is one way; somebody with a family to come back to and a support system in place is a lot less likely to get in trouble.  Monitoring the ex-convict -- making sure he doesn't hang out with the wrong people, gets the drug or mental health treatment he needs -- is another.  But the biggest is getting him a job; people with jobs commit far fewer crimes than people without them.

And that's where newly-enacted SB 337, which will take effect September 28, comes in.  It allows an ex-convict to avoid certain collateral sanctions of a conviction, and expands eligibility for expungement.  We'll take a look at that today.

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Double jeopardy and mistrials

Man, talk about a shoplifting gone wrong.  Toneisha Gunnell never figured that when she and her crew went up to the mall to steal some clothing, they'd wind up charged with murder, involuntary manslaugher, and aggravated robbery.  But when their car was being chased by mall security, some guy decided to play the hero and jump in front of the car, waving for it to stop.  The driver, who wasn't Gunnell, never even slowed down.

The state got three shots at convicting Gunnell.  Last week, in State v. Gunnell, the Supreme Court threw the latest conviction out, and said the State wouldn't get a fourth try.

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What's Up in the 8th

Here's this week's Helpful Tip for Criminals:  let's say you're popped for shooting at a bunch of the people in a car.  They told the police the shooter was someone they knew as "Dooney."  When you take the stand, should you tell the jury that you've got a cousin called "Dooney," and that's who everybody really means?  Not a bad strategy normally, but it becomes a lot harder sell if you've got the name "Dooney" tattooed on your neck.  Then again, criminals tend to make poor life decisions, and, as last week's decision in State v. Smith and a case I highlighted last year show, that extends to decisions about body ink.

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Case Update

Since the US Supreme Court is out of session until October, instead of beginning every Case Update between now and then with the phrase, "the US Supreme Court is out of session until October," I'll preview a case which the Court has accepted for ruling next term, or one it's likely to accept.  Maryland v. King falls into the latter category.  King was arrested in 2009 for felony assault.  In 1994, Maryland had authorized the police to take DNA samples from those convicted of crimes, and extended that in 2008 to anyone who was arrested.  King wound up convicted of the assault and was sent to prison for a year, but his problems grew exponentially when the DNA sample taken from him at the time of his arrest linked him to a 2003 rape.  He was convicted of that as well, and sentenced to life without parole, but two months ago the state's highest court ruled that taking a DNA sample from someone who's only been arrested is a 4th Amendment violation.  Last week, Chief Justice Roberts issued a stay of the Maryland court's ruling prohibiting the taking of sample from arrestees, and given that lower court decisions are split on the issue, it seems likely that the Court will wind up deciding the issue.

Down in Columbus, a big case on double jeopardy, which we'll discuss on Wednesday.  The juxtoposition of two news stories also proved interesting.  Last Wednesday, the court released its annual statistical summary of what's going on in the common pleas courts, and found that the number of new cases filed had reached a ten-year low.  With the next day came a press release noting that the pay for Ohio judges was lagging behind that of other states.  The connection between Ohio judges doing less and Ohio judges getting paid less went unnoticed, except by this jaundiced observer.

On to the courts of appeals...

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Anatomy of an appeal

It may be that Brandon Beckwith has gotten away with murder, at least so far.  It may be that we just stopped an innocent man from serving an 18-to-life sentence.  One thing we can say for sure:  an infelicitous question on direct examination gives Beckwith one more chance at beating the rap that he killed Eric Copley four years ago.

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HB 86 - The cases so far

HB 86, Ohio's new sentencing statute, went into effect on September 30, 2011.  It's been enough time now for a few cases on it to start trickling out of the pipeline.  Let's see what's happened so far.

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What's Up in the 8th

Summertime blues...  Only nine opinions from the 8th District last week, about half their normal output.

But, as usual, there are lessons to be learned.  Lessons for the Cleveland Police Department in the rudimentary requirements of the 4th Amendment, lessons which, if the past is prologue, will fall on deaf ears.  Lessons for judges who wish, however deservedly, to stop some of the idiocy occasioned by our "war on drugs." And a lesson for Terrell West:  third time might be the charm, but not for you.

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Case Update

I always learn something when I'm blogging.  I learned something during my hiatus from blogging last week, too, which is that when the cop stops you for going 52 in a 25-mph zone, you're not going to weasel your way out of a ticket by claiming you're dyslexic.  Worth a try...

The Supreme Court is in summer recess, of course, but that doesn't stop anybody from talking about it.  While the big case this past term was the health care act, with discussion still raging about Roberts' supposed vote switch, attention is already shifting to what is likely to be the big issue for the 2012 term:  gay marriage.  The backers of Proposition 8, which outlawed gay marriage in California, are appealing the 9th District's decision nullifying the referendum.  The Justice Department is asking the Court to review the Defense of Marriage Act, passed in 1997; the 1st Circuit ruled Section 3 of the Act, which prohibits the Federal government from recognizing same sex marriages, unconsitutional earlier this year.  Another provision of the law which may come under fire is the one which allows states where gay marriage is illegal to refuse to recognize it, even if it was peformed in a state where gay marriage is allowed.  And another case might be headed the Supreme Court's way, again via the 9th Circuit:  just last week, that court nullified Arizona's attempt to strip health benefits for domestic partners of state workers, finding it discriminatory.

Those cases, if cert is granted, will join about 40 others presently on the docket, about half the court's normal load.  There are a number of interesting criminal cases on the horizon -- drug sniffing dogs, double jeopardy, and the retroactivity of Padilla v. Kentucky -- and I'll have more on those in the coming weeks.

I'll have more on criminal cases out of the Ohio Supreme Court, too, when they start rendering decisions on them.  They didn't while I was on vacation, but the courts of appeals made up for it:  a couple of hundred cases, about half of them criminal, for me to wade through.  Let's get to it...

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On vacation

Sometimes, you just need a week to chill or so.  This week's mine, at least from here.  I'll be back next Monday, the 16th.

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Speedy trial and implied waivers

You're sitting in chambers with the prosecutor and the judge.  The bailiff brings in calendar, the judge leafs through the pages, settles on one, runs his eye down it and announces, "Okay, final pretrial will be on February 7th, and trial will be a week later, February 14th.  Those dates clear with you guys?"  You sit there for a moment, waiting for the prosecutor to point out that speedy trial time runs at the end of January.  Instead, she says, "That's fine with me, judge."  You think it over, then pull out your iPhone and poke the calendar icon.  After a minute, you look up, smile brightly, and say, "Works for me, too, judge," a small part of your mind darting off to contemplate just exactly how pissed the judge is going to be with you when you walk in with the motion to dismiss on the day of trial...

That was the scenario contemplated by the assembled justices and lawyers during oral argument three months ago in State v. Ramey.  The outcome could've been worse; while Ramey's attorney insisted he would be committing malpractice by telling a judge not to set a particular date because your client's speedy trial time runs before that, the contention was not welcomed by the judges, and there were some dark murmurings about the defense lawyer being "an officer of the court."

But last week the decision came out, and lo and behold, not only does it come down on the side of the defendants, but it clarifies the respective roles of the parties, especially the defense attorney, in asserting or failing to assert the defendant's right to a speedy trial.

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Supreme Court Recap - 2011

For the past four years, I've done a recap of the US Supreme Court's decisions over the previous term.  Here's the one for the 2011 term.   You can find this one, or the ones for the previous four terms, by putting "supreme court recap" (in quotes) and the year in the box under "Search Posts" on the right.

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What's Up in the 8th

I"ve gotten to the point in my career -- such as it is -- where there are certain things I will not do.  Quite a lot of them, actually.  I hear the people in the Probate Court are very nice and friendly and helpful, but I will remain a stranger there.  I hear that if you ordered twenty tons of sonsofbitches and I sent you a divorce lawyer on a flatcar, you'd have to call it substantial performance, but I'll accept that second-hand, having no desire to further investigate the issue.

The 8th District this week was kind enough to reinforce my decision as to things I will not do.

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Case Update

The Supreme Court ended its term last week, and we've already discussed the decisions it handed down.  (Except for the "Stolen Valor Act" case, US v. Alvarez, in which the Court, by a 6-3 vote, struck down the act making it a crime to falsely claim that you've won a military award.)  Despite the notion that the Court is deeply fractured, of the 75 decisions it handed down this past term, 33 were unanimous, more than twice as many as the 15 decided by a 5-4 vote.  These, and other little tidbits, can be gleaned from SCOTUSblog's Stat Pack, from which you will learn that Kennedy was the justice most frequently in the majority (88%, excluding unanimous decisions), while Ginsburg was the justice least likely to find herself there (45%), that Scalia and Thomas were the justices most commonly in agreement (93.3%), that Scalia and Breyer wrote the most opinions (22, including concurrences and dissents), and that Alito had an impressive .282 batting average with two outs and runners in scoring position.  Whoops, sorry, that last one came from ESPN.com...

For the past several years, I've done an annual recap of the Supreme Court's decisions, mostly focusing on criminal law, and I'll do it again this year.  That'll come on Thursday, which brings up the subject of scheduling.  I'll be off on the 4th of July, like everyone else.  I've got a birthday coming up, and unlike the disappointingly sedate affair from last year, I will be returning to the Bacchanalian extravaganzas which have normally coincided with my doing another lap on the Track of Life, as you can see from this picture of the preparations for the next one.  (Word of caution for those of you planning to attend:  the name of the beach is not an astronomical reference.)  So I'll be taking next week off from blogging, and returning the week after that.

Down in Columbus, the Supreme Court came down with State v. Ramey a decision on speedy trial -- unanimous, no less -- which leads me to believe, in light of their previous cases on the subject, that the justices have experienced a joint epiphany similar to that of Saul on the Road to Damascus.  I haven't ruled out an alien body-snatching scenario, though.  More on the decision this Friday.

There was one other decision, Miller v. Nelson-Miller, which appeared to have nothing to do with criminal law:  it posed the question of the validity of a journal entry of divorce signed by a magistrate, with the judge's permission.  But neither party had objected at the time -- the issue wasn't raised until several years later -- and so the discussion centered on whether the entry was void or merely voidable.  The court reaches back to cases decided fifteen years before the Civil War to conclude that a the distinction between the two "is between the lack of power or want of jurisdiction in the Court, and a wrongful or defective execution of power.  In the first instance all acts of the Court not having jurisdiction or power are void, in the latter voidable only."  As noted here on numerous occasions over the years, the court's willingness to brand sentences as void where post-release controls weren't properly imposed, or a journal entry of sentencing didn't mention the jury's verdict, or a mandatory fine wasn't imposed, or where there was some similar "wrongful or defective execution" of the court's power, has caused any number of problems.  Justice Lanzinger, who was the first justice to warn of those problems, writes a concurring opinion in Miller in which she "heartily concurs" in the opinion and acidly notes that she can "only hope that this analysis will also extend to our criminal cases in the future."

In the courts of appeals...

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