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September 2012 Archives

New day dawning for 404(B)

A third-grade teacher picks out a student at the beginning of the school year, befriending him, becoming a mentor, becoming close to him, and eventually turns it into a sexual relationship. The boy goes off to the 4th grade the next year, and the teacher begins the process anew in September with his incoming class. The cycle repeats: selecting the child, grooming him, then having a sexual relationship. This goes on for three more years, after which the teacher is caught and prosecuted for rape of the last child. Can evidence of the four previous relationships come in at trial?

That was the hypothetical Chief Justice O'Connor posed to defense counsel Wednesday in the oral argument in State v. Williams. It was pretty clear what she thought was the correct answer was, and it equally clear that majority, if not all, of the justices shared those sentiments.

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Punting on the 4th

Every now and then prosecutors in Ohio come up with a Big Idea about the 4th Amendment. A couple of years ago, they tried to sell the Supreme Court on the idea that the Ohio constitution didn't have an exclusionary rule, based on a decision by the court the same year FDR won election to his second term. Then they claimed that the Supreme Court's decision in Herring v. US ushered in a whole new understanding of search and seizure law: the exclusionary rule could only be applied to cases of "egregious" police conduct, in essence creating a good-faith exception for warrantless searches.

Those arguments went nowhere; the latter case, in fact, never made it to the decision stage, but was instead dismissed by the court as improvidently granted. Yesterday, the State was at it again, arguing that the 2nd District had been right back in 1994 when they held an arrest warrant eliminated the arrestee's expectation of privacy, and wrong last year when they decided to the contrary and reversed themselves. But from the tenor of the oral argument yesterday in State v. Gardner the State's not likely to be any more successful than in their previous forays.

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The Adversary System

"You gotta talk to Erin," The Prosecutor said.

Not a prosecutor up here. A few years back some people in Columbus saw my blog and decided to hire me for an appeal in Athens, about 60 miles southeast of Columbus. Their 16-year-old son had been convicted of felony murder and aggravated robbery with a gun, and the judge had maxed and stacked them: 28 to life. Long story short, I got it reversed and sent back for allied offense analysis, and The Prosecutor and I worked it out so the kid would do fifteen to life. That's a deal not a lot of prosecutors would have made; basically, we had to make the jury's conviction on a three-year gun spec disappear. But The Prosecutor's a real good guy, and, considering the distance, I'd maintained contact with him throughout the case, and gotten along with him from the beginning. Sometimes, the best thing you can do for a client is not be an asshole.

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What's Up in the 8th

A dozen criminal decisions from the 8th District last week, the opinions comprising 171 pages. How do I get through all of that to write this post? Well, it's a lot easier when they begin like this:

Appellant, Maurice Jackson, brings his sixth appeal concerning his convictions for rape and kidnapping stemming from an April 9, 2000 incident involving the forcible rape of a child under the age of 13. Appellant now claims that the trial court erred in denying his third motion to withdraw his guilty plea.

Lexis, Westlaw, and other case reporting systems use "key words" to tell you what's important about a decision. In this one, the key words were "sixth appeal" and "third motion." If you know anything about appellate law, you know that our old friend Ray Judicata is going to be making an appearance, and you needn't read further to find out when he arrives.

Other cases require more work. And occasionally, one will require a lot of work, because the court comes up with something so bizarre I'm forced to actually look up the law, and read even more cases. That happens with State v. Strothers.

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Civics Lesson

The CCDLA, the bar association for criminal lawyers here in Cleveland, had its first meeting of the new year last night, and several candidates stopped by to make their pitch. One was the Republican candidate for prosecutor, a long-time defense lawyer who roused a sympathetic crowd with promises of victory over his Democratic opponent, a former prosecutor and judge, who found few favorites among the criminal bar in either endeavor. We all cheered and clapped, and it was good fun, because every one of us, including the candidate, knew he had a better chance of being the next Pope than the next county prosecutor.

Then came the judicial candidates, Sweeney and McClelland, in one of the saddest races we've had in this county. Sweeney (full disclosure: he's a good friend) has been a public defender, and has one of the sharpest minds I know. McClelland spent 31 years in private practice with a civil firm before being appointed to the bench in 2011, and has quickly established a reputation as one of the smartest and fairest judges on the bench. The sad part of the race is that one of them has to lose. That, and a discussion with another judge that morning, got me back to something that I've always wondered.

Why the hell do we expect the average person to vote for judges?

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Taking another look at 404(B)

The defendant is charged with sexually molesting a 15-year-old boy. At his trial, can the state introduce evidence that, 12 years earlier, he had a consensual sexual relationship with a 16-year-old boy? The trial judge thought so, but the 8th District came to the opposite conclusion last year in State v. Williams. That's another case heading for oral argument before the Supreme Court next week.

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Expectations of privacy

If there's a warrant for your arrest, does that mean if the cops pull you over for no reason, the stop and subsequent seach will be good, even if the cops aren't aware of the warrant until after the stop? For seventeen years, that was the law in Dayton and its environs; the 2nd District held in 1994 that someone with an outstanding arrest warrant had no reasonable expectation of not being arrested on it, and therefore had no standing to contest the illegality of the stop. The 2nd changed its mind last year in State v. Gardner and that's what everybody's going to get together to talk about before the Supreme Court next week. It may seem like an easy case to resolve, but it involves, in Scalian terms, the core values of the 4th Amendment: privacy and protection against government abuse. It will be interesting to see how the court works its way through that. Or if it does. 

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What's Up in the 8th

After my post last week noting the "fractiousness" of the 8th's decision, I got an email from one of the judges assuring me that things were far more harmonious than the spate of dissents and concurring-only-in-judgments might lead one to believe. He informed me that the court in an en banc ruling had narrowly voted down a proposal to begin each session of oral argument with the panel's three judges holding hands and singing "Kumbaya," but did advise me that each voting conference ends with a group hug. I know I feel better. And sure enough, in last week's nine decisions, never is heard a discouraging word; everbody in the choir is singing from the same songbook.

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Case Update

SCOTUS revs back into action in two weeks, but all eyes -- mine, anyway -- are focused on the Ohio Supreme Court, which will be holding oral arguments next week. Unlike its counterparts in DC, the justices of the Ohio court venture out in the hinterlands to mingle with the hoi polloi on occasion, and next week will find them in Cleveland, with five oral arguments scheduled at Case Western University on Tuesday, followed up with another four on Wednesday.

A third of the cases pertain to criminal matters. The question in State v. Roberts is whether the law passed in 2010 requiring the state to preserve physical and biological evidence applies retroactively to Roberts' 1997 conviction for aggravated murder. State v. Gardner presents an interesting 4th Amendment issue. For a number of years, the 2nd District had followed the rule that a defendant had no standing to contest a stop if there happened to be a warrant for his arrest, even if the police didn't know about it when they stopped him. It reversed that decision in Gardner, and the state has taken it up.

Perhaps the most significant case, though, is the review of the 8th District's en banc decision in State v. Williams, which I discussed here when it came out. Evidence of the defendant's other crimes is usually barred at trial, not because it's not probative -- there are libraries of research indicating that people who commit one crime are more likely to commit another -- but because it's too probative; simply put, once the jury learns that your client has committed another crime, especially one similar to that for which he is on trial, it's Game Over. EvidR 404(B), which in certain circumstances allows evidence of "other acts" committed, has proved one of the most consistently troublesome evidentiary areas, for both trial and appellate courts, especially the rule's exception for evidence of a "common scheme or plan." Williams allows evidence of that in only two circumstances: where the other acts are inextricably related to the one for which defendant is on trial, and to prove identity. I'll have a full preview of both Gardner and Williams later this week.

In the courts of appeals...

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Getting Fired

I wasn't exactly heartbroken when I came back from a day in trial and found a voicemail message from a lawyer telling me that he'd been retained by Karen's family to represent her from here on in. I'd been appointed to represent Karen, and I'd already maxed out my fees, so the prospect of spending more time on the case for free wasn't very appealing. If I'm assigned to a case and the client wants to retain a lawyer, God bless.

Still, this one bothered me a bit. Every lawyer who takes assigned cases likes to think that he does just as good a job on those as he does for retained clients. In this case, I knew I hadn't.

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Tackling disproportionality

I was down in Athens County a couple of weeks ago. They only have a couple of judges on the Common Pleas bench there, and I've wondered what it would be like to practice in a place like that. Up here, we've got 34 judges. Boy, do we have judges. Judges of every race, color, and creed. Some of them have to carry around a bucket for their bleeding hearts, some of them might as well be sitting at the prosecution table in a criminal trial. Some of them get to their chambers at eight, some waltz in at ten. Some of them are very pleasant to deal with, some of them are fairly brusk.

Every criminal lawyer knows that the result of his case will be determined by three factors: the client (who he is, what he did), the prosecutor, and the judge. When you sit down in the seats in front of the railing in the arraignment room, you know two of those. You don't know which specific prosecutor you're going to be dealing with, but it doesn't matter much, because a floor prosecutor can't even resolve the lowest level felony case here without getting approval from one of three or four supervisors. It's the judge you don't know about. Each attorney walks up to the podium with his client, and the judge invokes the mantra, "not guilty plea entered, order bond continued," and then leans over the computer monitor to see who your judge is going to be. If the draw is particularly good or particularly bad, it will draw murmurs of approval or groans of dismay from the other lawyers.

It's not really supposed to be that way, of course. Sixteen years ago, SB 2 introduced the concept of "guided discretion" in sentencing, with one of the avowed goals being consistency in the sentences judges handed down. That's turned out to be a joke, of course; there is no meaningful appellate review of sentences. But every now and then, a court still takes a stab at it. The 8th District did so a couple weeks back in State v. Sherman, with very interesting results.  

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Catching up

I spend most of my time here discussing cases from the Supreme Court -- the one on the Potomac and the one down Columbus way -- and cases out of the 8th District, but every now and then there's a case from one of the other districts that merits extended discussion. I'll talk about several of them today.

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What's Up in the 8th


Americans spend some $4.5 billion a year on sleep medications. About 75 million Americans complain of insomnia.

Well, if you're in the twenty percent of the population which is sleep-deprived, here's a solution you might have overlooked: jury service here in the Cuyahoga County Common Pleas Court. Three years ago, I mentioned a case in which a murder conviction was reversed because several jurors eschewed the tedium of testimony and chose instead to sleep, perchance to dream, the problem finally becoming so severe that the judge threw up her hands; when the prosecutor mentioned once more that a particular juror had drifted off yet again, the judge responded testily, "I saw it. So what. Let him sleep. You guys picked this jury, I didn't."

Andre Wilson is the latest to complain of juror somnolence, in a post-conviction relief petition, which is accompanied by his own affidavit and the letters of two people who'd attended the trial attesting to that. In State v. Wilson, we learn that the jury box in the common pleas courthouse up here is such a good place to catch a few winks that the 8th District has developed an entire body of law regarding sleeping jurors. A defendant needs to show the exact testimony that the juror missed while he was in the Land of Nod. Without evidence that Rip Van Juror missed "large or critical portions of the trial," there's no prejudice. And if the record doesn't indicate the precise moment that the Sandman carried the juror off, "we cannot determine what, if anything, the juror missed." Wilson doesn't add to that body of law; his affidavit can be dismissed as "self-serving," and the two letters can be ignored because they are unsworn.

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Case Update

Our country's long history of racial problems, and our attempts to resolve them, will bubble to the surface again in two cases before the High Court this coming term.  Fisher v. University of Texas raises the troublesome issue of affirmative action, a decade after the court last addressed the problem in two cases involving the University of Michigan.  Those decisions permitted a school to take race into account, so long as it was not the dominant factor, on the basis that diversity was a desirable goal in itself.  Fisher presents the same issue, but to a substantially different court; Sanda Day O'Connor wrote the opinions in the the Michigan cases, and she's been replaced by Samuel Alito.  Complicating the situation further for the Univerity is that Elena Kagan has recused herself.  Complicating the case for the Court is that it's a procedural mess:  unlike the plaintiffs in the Michigan case, Fisher sued only in her own name rather than bringing a class action, and subsequently enrolled in and graduated from Louisiana State University.  All that may be at stake is her $100 application fee; there's word that the University has offered to refund it, possibly making the case moot.

Efforts by Republican-controlled state legislatures to pass voter ID laws have raised cries that the ulterior motive is to suppress the votes of minorities, a contention that was hardly dispelled by the recent boast of the Pennsylvania Senate majority leader's that the state's new law made it more likely that Mitt Romney could carry the state in November.  Pennsylvania's defense of the law in court, that it was necessary to defend the integrity of the vote, was not helped, either, by its concession in those proceedings that it knew of no cases of voter fraud, and would not be contending that fraud was a justification for the law.  This term, the Court will be considering two cases which seek to invalidate Section 5 of the 1965 Voting Rights Act, which bars certain states and localities from changing their election laws without Justice Department or court approval.  The Act has been one of the most successful pieces of legislation in US history; in the 15 years after its passage, the number of black officeholders in the South increased from 12 to over 10,000.  The last time the Court looked at the law, though, it indicated that Section 5 may have outlived its usefulness, and don't be surprised if it concludes that this time around.

If you've ever debated the wisdom of doing the horizontal mambo with a client, you might want to check out the Ohio Supreme Court's decision in Disciplinary Counsel v. Hines.  Hines had started up a relationship with a female divorce client, and in the court's route to deciding what to do about this -- Hines wound up with a stayed six-month suspension -- it discusses similar cases in such number that one is compelled to conclude that whatever might be wrong with Ohio lawyers, a lack of testosterone isn't one of them.  So go read the case, and get on with your bad self.

No such randiness in the courts of appeals...

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Summer's over

After 19 years of school, it was about five years after I passed the bar before I stopped thinking of the year as starting in September.

So, the summer's over, and the Briefcase will be undergoing some changes. First, we're back to our ordinary schedule of posting five days a week.

What will we talk about? We'll continue the regular features -- the Case Update on Mondays, recapping the decisions from SCOTUS and the Ohio Supreme Court, and major decisions from the Ohio appellate districts, and What's Up in the 8th on Tuesdays, analyzing the 8th District's body of work from the previous week. We'll be adding one more feature, although on a less regular basis, which I'll call The Clinic for now. Sometimes it'll inform you of the law on some subject or procedure. Other times I'll just talk about some of my experiences as a lawyer. And not necessarily successful ones; next week we'll talk about my getting fired by a client.

There's also going to be a slight change in the look. It's weird. I've been doing this blog for over six years now, and this is what I have; I don't even have a web site. And nobody's going to accuse me of being overly self-promotional; you can't even find my address or phone number on this blog.

That's going to change, but no so much here. I will have a website, which will be linked in to here. Just click a button, where you'll be transported to a place where I will explain that I have a special set of skills which are very dangerous to a man -- whoops, that's Liam Neeson's speech in Taken -- where I will explain why it's a good idea to call me if you've got an appeal or you're a lawyer who wants a thorough legal analysis of a big case.

Otherwise, stick around here and we'll talk about law and being lawyers.

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Old Chief and the Professor

I hadn't heard from the Professor in a while. He'd taught me criminal procedure -- well, me and several thousand other students over the years -- and I'd run into him from time to time, the last at a seminar he was giving on the 4th Amendment, and the sorry state thereof. The email was about an episode of 48 Hours he'd recently seen. That's the CBS show that's like a real-life Law and Order: they track a murder, from the time the police first get involved up through the trial. In the episode the Professor had seen, he told me, the prosecution was allowed to introduce a number of graphic photos of the victim, who was a young child. Why was that? the Professor wondered. There was no question that the victim was dead; the only issue at trial was who killed him. Showing picture after grisly picture of the victim could do nothing but inflame the jury.

Happens all the time, of course. A domestic violence becomes a felony if you've got a prior conviction for it. At the felony trial, the prosecutor gets to tell the jury about your prior conviction. Try winning one of those cases. But that's the law: the prior conviction is an element of the crime, and that means it has to be proved to the jury. Sure, you can offer to stipulate, but you can't force the other side to stipulate. They have a right to present their case any way they want to.

There was a time when some thought that Old Chief might rescue us from that.

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What's Up in the 8th

Several months ago, one 8th District judge used a concurring opinion to beseech the Supreme Court to clarify sentencing law; last week, he uses a dissenting opinion to make the same plea. The fractious nature of the 8th's decision-making adds urgency to the matter; another few weeks of this, and the court's conferences could be punctuated by gunfire.

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Case Update

The Supreme Court's next term opens less than a month from now, with oral arguments in two cases, one of which is Lozman v. City of Riviera Beach. The issue presented is

Whether a floating structure that is indefinitely moored, receives power and other utilities from shore, and is not intended to be used in maritime transportation or commerce constitutes a "vessel" under 1 U.S.C. § 3, thus triggering federal maritime jurisdiction.

The next day comes the argument in United States v. Bormes. It's not a criminal case, as you might expect from the caption, but one involving the application of 28 USC 1346, also known as the Little Tucker Act, for reasons one can only imagine. As you might guess, I'll be all over those cases like a cheap suit, which, for those who know me, is a remarkably apt metaphor.

One criminal case from Columbus, State v. Hobbs, which presents the question of whether a person acting as both deputy sheriff and deputy clerk of a municipal court in the same county is a "detached and neutral magistrate" for purposes of issuing an arrest warrant. The answer, of course, is no, but the rarity of the situation is topped off by the fact that it didn't matter: the police obtained a full confession from Hobbs before the warrant was issued, so there was nothing to suppress.

In the courts of appeals...

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Recent Entries

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