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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...

With few exceptions, a post-conviction relief petition has to be filed within 180 days after the transcript for the appeal is filed. Can the defendant extend that by successfully moving to supplement the record? No, says the 8th District in State v. Durham... The benefits of perseverance: in State v. Gatewood, the defendant had been convicted of third-degree felony possession of crack cocaine. That got reversed in 2009, and Gatewood was tried again, with the same result. That got reversed and remanded for resentencing. By the time the resentencing rolled around, though, HB 86 had gone into effect, and the crack possession charge was now a 4th degree felony. The trial judge nonetheless imposed a sentence for a 3rd degree felony, but on appeal everybody agrees that's wrong, and the 2nd District reverses yet again... An excellent discussion of the law pertaining to excluding the public from a trial in the 9th District's decision in State v. El-Jones; the trial judge had excluded the victim's and defendant's families, and the court finds that the judge made the necessary findings to do so... No one is "likely to be present" for a burglary when the occupant is hospitalized, says the 8th District in State v. Butler. The decision contains an excellent discussion of the law on that element, and the court modifies the offense from a 2nd to a 3rd degree felony...

Too bad, so sad. In State v. Lomax, the defendant is charged with 31 counts of mostly 1st and 2nd degree felonies in three separate cases, his lawyer works out a deal for him to plead to only three counts, and Lomax still bitches about his 17-year sentence. His major claim is that the judge didn't tell him that a guilty plea was an admission of guilt -- who knew? -- and the 8th District agrees that the judge has to do that, but it's reversible error only when the defendant is claiming actual innocence. (The 10th District came to the identical conclusion last week in State v. Crosby). Lomax makes several other contentions, but the panel finds its Pity Meter isn't budging, and neither was mine.

Second thoughts on second thoughts. I've written often about the fiction that pre-sentence motions to withdraw a plea of guilty should be "freely and liberally granted," and that in actuality they're rarely granted by the trial courts, and a reversal on appeal of a denial is even rarer. The standard refrain in those cases is that a "change of heart" is not sufficient reason for granting withdrawal. My response has been, "why not?" If somebody comes to my house and sells me new gutters for a couple grand, I have three days to call him and tell him that I've sobered up and to cancel the transaction. Why should somebody who's trying to get out of a contract for a measly couple thou have an easier time doing it than someone who's facing years in prison?

But I've finally come to realize that if youdidfreely and liberally grant people the right to withdraw their pleas, you'd probably triple the number of criminal trials. Appellate cases on this subject are so numerous that I don't even bother to read them any more. Of the 55 criminal cases handed down in the appellate courts last week, seven of them -- nearly 15% -- concerned plea withdrawals. I might feel differently if it were apparent that a significant number of innocent people were being coerced into pleading guilty, but my experience has been that almost invariably, it's simply defendants who think they might have gotten a better deal. And almost invariably, they're wrong; I recently handled an appeal where the judgedidallow the defendants to withdraw their pleas and go to trial, and instead of winding up with a third degree felony and a good likelihood of probation, they're doing thirteen years.

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