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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.

Back in 2007, West was convicted of multiple counts of rape, kidnapping, and gross sexual imposition of his cousin, who was under 12 when the offenses were committed, but didn't report them until several years later.  The 8th District tossed his conviction because a nurse at the trial was allowed to testify that "there was a good likelihood that [the child] had been sexually abused as he described."  That was too close to expert testimony on the child's veracity, prohibited by the Supreme Court's 1989 decision in State v. Boston.  (And it didn't help the State that the 8th had reversed two earlier cases on the exact same testimony by the exact same nurse.)  West's case went back for trial, and second time around it wound up with a hung jury.  In State v. West, the court tackles the consequences of the third trial:  guilty on all counts, with consecutive life sentences.

The nurse's testimony is the focus of this appeal, too, but the court finds that West "fails to distinguish between expert testimony that a child witness is telling the truth and evidence which bolsters a child's credibility insofar as it supports the prosecution's efforts to prove that a child has been abused," and here, the nurse merely testified that many child sex abuse victims delay reporting the abuse.  That's probably the correct conclusion -- the testimony certainly wasn't as egregious as that during the first trial -- but it points to the fine line that Boston draws:  "I concluded that the child was telling the truth about being sexually abused" is prohibited, but "I concluded that the child was sexually abused" is not, and neither is much of anything else.

The Gotcha Inn makes its third appearance in 8th District decisions.  The first was two years ago in State v. Cantie, where Cantie was "enjoying his evening" at the bar before being arrested for having a weapon under disability, and the second earlier this year in State v. Frazier, which involved a shooting at the establishment.  So it comes as little surprise that the Inn's third appearance, in State v. Sweeney, is in the context of the police arriving to serve a temporary restraining order to close down the place.  Accompanied by a SWAT team, no less.  For "officer safety."

If you read 4th Amendment decisions, "officer safety" goes a long toward justifying, or at least attempting to do so, a wide variety of police conduct.  And so it is here.  Sweeney was one of the 50 to 75 patrons in the establishment when the police arrived, and although the detective in charge testified at the hearing on the motion to suppress that he had no reason to believe that anything in the order gave him the right to detain the patrons, detain them is just what he did:  first, to conduct a patdown search of each patron for weapons, and then for another ten minutes or so to conduct a warrant check.  Sweeney passed the first, but flunked the second, and a closer search revealed him in possession of drugs.

Even if the drugs been discovered in the patdown, this wouldn't have posed a particularly interesting question.  While the State argued that the police had "had reasonable and articulable suspicion that the patrons in the bar might be armed" given the Gotcha Inn's reputation for mayhem, this issue was settled by the Supreme Court's decision in Ybarra v. Illinois, which tossed a patdown under similar circumstances.  But here, the drugs were found after the officers detained the patrons an additional ten to fifteen minutes, solely to check for identification to determine whether there were outstanding warrants.  The court's decision that this "was in violation of Terry and thus was illegal" was ineluctable, and speaks to the continued and casual disregard of the Cleveland police department for even the rudimentary tenets of the 4th Amendment.  (More on that on Thursday.)

What's particularly galling is the flagrancy of the police conduct here.  As the court pointedly notes, the police were there to serve a temporary restraining order, not a search warrant, "which has a more stringent standard, requiring probable cause and supporting evidence that a crime is being committed," and the police chose "to execute the order to shut down the bar in the evening when it was full with patrons."

Sweeney, of course, was another skirmish in the war on drugs, and so was State v. Cox. In that case, the trial court was presented with the question, "What do you do with a 48-year-old man who's charged with his sixth drug possession case over the past decade or so?"  The judge concluded that whatever the answer was to that question, it could not be supplied by the criminal justice system, and so sentenced Cox to the two days in jail he'd already served and sent him on his way.  Several years ago, this was a common practice by several judges here, but the prosecutor's office decided to put a stop to it, and began appealing, arguing that the judge's options were limited to sentencing the defendant to prison or putting him on community control sanctions for a minimum one-year period.  There's an argument against this:  community control sanctions exist to allow the probation department to monitor the defendant to make sure he observes the conditions -- pay the fine, make restitution, get drug treatment, anger management counseling, whatever -- but if you don't impose any conditions, you don't need to monitor him.  The court hasn't bought it before, and it doesn't now, reversing and remanding Cox's sentence so that the judge can impose sanctions.  So now our tax dollars will go to monitor Cox while he's on probation, and for his violation hearings when he inevitably drops a dirty urine.  And, if he and we are especially unlucky, those tax dollars will go to pick up the tab for his spending six months in prison if the judge tires of his violations.

The saddest part about all this is that, to some people, this makes sense.

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