September 2012 Archives
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.
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.
"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.
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.
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?
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.
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...
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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