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.
One of them is that I will not handle personal injury cases any more. Ronald Constant and some friends had gone out to celebrate New Year's Eve, and in the early morning hours, their car was rear-ended by Luis Torres. The trial has all the hallmarks of past PI cases I've handled: the minimal damage, the "further treatment at Cleveland Therapy Center" six days after the accident, which was obtained "upon advice from counsel," the "soft-tissue type back and neck injuries," and, most common these days, the jury's total award of $230, solely for the property damage. Constant appeals, claiming that the fact that his doctor testified that his injuries were proximately caused by the car accident, and that the defense presented no expert testimony to the contrary, was sufficient to show his entitlement to some amount of damages for pain and suffering and medical expenses. The court explains in Constant v. Torres that it doesn't work that way: a jury isn't required to give any weight to expert testimony, even if it's uncontradicted.
Especially when there are "credibility issues" with the plaintiff's testimony, as is also common in such cases. In deposition, Constant had admitted to only two prior car accidents, and claimed none had involved injuries to his lower back; in cross-examination at trial, those numbers climbed to seven and three, respectively. And, as the court noted, "Constant was less than forthcoming with his 11 prior worker's compensation claims, four of which involved injury to his lower back." Ah, yes, been there, done that, got the t-shirt.
I don't do municipal cases anymore, either, because they're usually about stupid things. Lyndhurst v. Smith presented a neighborhood dispute that had devolved into a prosecution for disorderly conduct and violating a criminal temporary protection order. One of the other reasons I don't like handling these cases is that the rules of procedure and evidence seem to be honored mainly in the breach, and so it is here. EvidR 404(B), the rule limiting evidence of other criminal acts of the defendant, seems to have been nothing more than a distant rumor. Anything that the defendant had ever done or could possibly be attributed to him -- fights he got into with other neighbors across town years ago, the appearance of dead animals in the victims' yard, his drinking and possible mental health problems -- were allowed into evidence. Without even mentioning whether any of this was objected to, the court reverses because of the "overwhelming amount of other-acts evidence," which was "used to simply establish that defendant has a bad character and acted in conformity therewith." The concurring opinion picks at the margins, finding some of the evidence admissible, but finally concludes that "this trial was tainted beyond salvation." I've mentioned before that while the rate of reversal in criminal cases generally hovers around 15%, in cases coming from the municipal courts it probably approaches 60%. This is one of the reasons why.
I don't do any work in the juvenile court, either, for a variety of reasons, but I learned a valuable lesson from last week's decision in State v. Murphy. Murphy, then 17 years old, had been charged with aggravated robbery with a gun specification, and a variety of other crimes. The first required his mandatory bindover to adult court, where he was tried and acquitted of everything but theft. The judge gave him 12 months of community control sanctions, and that was that.
Or not, it turns out. The valuable lesson I learned from Murphy is that simply because I don't practice in juvenile court doesn't mean I don't need to know the law on juvenile delinquency. I've written numerous posts about HB 86, the new sentencing law that went into effect last September. Hell, I've given seminars on the subject. Yet I have done so, blithely unaware of new section RC 2152.121, which is intended to address Murphy's situation: what happens when a juvenile bound over for trial as an adult because bindover is mandatory, but the juvenile is then convicted of an offense which wouldn't have required mandatory bindover?
Well, as you know, our motto here at The Briefcase is, "we read the law so you don't have to." Good thing for you, too. Here's the answer. The first thing the statute required the adult court judge in Murphy's case to consider was whether the offense he was convicted of would have allowed either mandatory or discretionary bindover from juvenile court. If the offense would have required mandatory bindover, the adult court imposes sentence, and that's the end of it. If it wouldn't have allowed either one (for example, if Murphy had been convicted of a misdemeanor), the case is transferred back to the juvenile court, which makes the disposition, and that's the end of it.
But what happens if the offense is one where mandatory bindover wasn't required, but the juvenile court had the discretion to bind the case over? That's where Murphy stood: the juvenile court could have bound Murphy over for a theft offense if it determined that he was not amenable to disposition in that court. The answer is that -- get ready for it -- the adult court judge imposes the sentence it believes is appropriate, stays imposition of the sentence, and sends it back to the juvvenile court.
Which is where things get really funky. The juvenile court then can impose a serious youthful offender dispositional sentence. Unless the prosecutor files a motion seeking to have the adult court sentence imposed. In which case the juvenile court holds a hearing to determine whether the child is amenable to disposition in the juvenile court. (At which point, one or more of the participants in the proceeding will wind up looking like the guy on the right.) If the court determines that the juvenile is not amenable, he transfers itbackto the adult court for imposition of the sentence the adult court initially handed down. If the court determines that the juvenile is amenable, then he keeps the case and imposes the serious youthful offender disposition.
A couple of things to keep in mind here. First, as mentioned, this whole thing only applies if there was a mandatory bindover in the first instance; if the bindover was discretionary, the adult court retains jursidiction from that point on. Second, this procedure applies not only where there's a conviction, but where there's a plea; if you're handling a case that came over on a mandatory bindover, you will wind up back in juvenile court if the defendant pleads to something that would not have required a mandatory bindover.
One other thing. While the court in Murphy reversed and sent the case back down to the juvenile court, it rejected the assignment of error that defense counsel had been ineffective in failing to raise the issue. Given that the new law had gone into effect the day of Murphy's sentencing, the court concluded that "on this record, we do not find that counsel's failure to raise the statute was an error so serious that counsel was not functioning as the 'counsel' guaranteed defendant by the Sixth Amendment." Well, that's a relief.