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October 2012 Archives

California Dreaming

The Federal government shut down on Monday because of Hurricane Sandy. Well, not the entire Federal government; the Supreme Court held oral arguments that day. rainstorm.jpg(That's a picture at right of Antonin Scalia slogging his way to the court building, fighting the elements as he formulates the methods by which he will berate the lawyers appearing before him in an hour or so.) By Tuesday, however, even the Intrepid Nine succumbed to Mother Nature, and postponed that day's oral arguments until tomorrow. Such a pity; it was rumored that Justice Thomas' vow of silence had expired, and he was coming to court loaded for bear, with some twenty-odd questions with which he would riddle the advocates.

Anyway, that oral argument included the one in Chaidez v. US, the case presenting the question of whether Padilla v. Kentucky should be applied retroactively. Which is, of course, what I promised to write about today, so that's not going to happen.

Actually, there's a full slate of fascinating criminal cases on the Court's docket for this week: in addition to Chaidez, we have the Florida dog sniff cases on tap for today, and coupled with Chaidez tomorrow is Bailey v. US, which presents the question of how far removed a suspect must be from the locus of a search warrant to enable the police to detain him under the warrant. Over thirty years ago, the Court held in Michigan v. Summers that when the police execute a warrant, they can detain anyone on the premises until the search is completed. In Bailey, the police obtained a search warrant, but before they could act on it they observed two men exit the suspect house, get into a car, and drive off. The issue in Bailey is whether the warrant gave the police the right to stop the car about a mile away. I'll have a post on the dog sniff cases later this week, and will cover Bailey and Chaidez next week.

Meanwhile, back at the ranch...

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What's Up in the 8th

Apparently, some time back the cops in Cleveland stopped searching, defendants stopped committing multiple offenses which might be deemed allied, and judges stopped handing down consecutive sentences, because once again there are no 8th District decisions on any of those. The court does take on two big evidentiary issues, with mixed results.

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Case Update

Carol Ann Bond's case may make it up to the Supreme Court a second time. As I explained two years ago, Bond had found that her best friend had slept with Bond's husband, the union producing a child, and had gotten even by spreading some chemicals on the friend's doorknob, car door handles, and mailbox, which gave her a rash. For that, Bond was convicted of possessing and using a chemical weapon, in violation of a statute Congress had passed under the 1993 Chemical Weapons Convention. She argued that this was a 10th Amendment violation, the Federal government intruding upon matters properly left to the states, but the 3rd District held, for reasons known only to them and their god, that she didn't have standing to raise the issue. The Supreme Court reversed that and sent it back to the 3rd for consideration of the merits of the claim, but last May the 3rd again affirmed her conviction. Her petition for certiorari is one that the Court considered on Friday, and we'll find it today whether it was accepted.

Up for oral argument tomorrow - assuming that Hurricane Sandy doesn't get in the way - is one dear to the hearts of those of us who remember paying outrageous prices for new college and law school textbooks, selling them back to the bookstores for ten cents on the dollar at the end of the term, only to see those same used textbooks offered the next term at 60% of the original price.  That cheesed off Supap Kirtsaeng, too, when he came over here from Thailand to study at Cornell and USC.  To defray expenses, he had his family purchase textbooks in Thailand and send them to him here, where he resold them, earning a hefty hundred grand in the process.  Then legal publisher John Wiley & Sons got wind of it, sued him for copyright violation, and Kirtsaeng got hit up for a $600,000 judgment.  It's a complicated legal issue - take my word for it - but I'll be rooting for Kirtsaeng. 

But the real focus in the week's upcoming oral arguments is on Chaidez v. US, which raises the question of whether the Court's 2010 decision in Padilla v. Kentucky, reversing a defendant's conviction because of his attorney's failure to properly advise him of the immigration consequences of his plea, is to be applied retroactively.  I'll have a review of the oral argument later this week. 

Down in Columbus, the Supreme Court agreed to hear three new criminal cases, but two were accepted only to be held for decision in other pending cases.  The other could prove interesting.  The defendant had been convicted of selling alcohol to a minor.  The judge excluded the report containing the analysis of the liquid sold because the person who prepared the report wasn't available to testify, but nonetheless convicted the defendant after taking judicial notice that Bud Lite is a beer, a decision probably shocking to those with a more nuanced palate.  The 9th District held this was improper and reversed; the question the Supreme Court will determine is whether the improper taking of judicial notice on an element of the offense bars retrial under the Double Jeopardy Clause.

It should be noted that while the Supreme Court agreed to hear those three cases, as well as three civil ones, it declined to accept 72 cases. 

In the courts of appeals...

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Here Come Da Judge

I'm pretty much old school. I have a number of judges I consider personal friends, but I'd never think of addressing them by their first names in any official setting, and even in social settings, I tend to address them as "Judge." In fact, now that I think about it, even after they retire, I'm likely to address them that way.

Colleen O'Toole apparently is old school, too. Despite her defeat as judge of the 11th District court of appeals two years ago, she still refers to herself as "judge." And that just cost her about six grand.

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The discovery rules and work product

Your client's charged with murder, and he's claiming self-defense. Your investigator found a good witness, who'll corroborate your client's testimony that, just before the shooting, the victim made a move as if he was going into his jacket to get a gun. Unfortunately, the witness told the investigator something else: that your client has indictated to him on numerous occasions before this that he wanted to kill the victim.

What, if anything, do you have to tell the prosecutor about what your investigator found out? That's the issue that the 2nd District tackled last week in State v. Crews.

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Not going gently into that good night

So this is what it boils down to for John Errol Ferguson:  the State of Florida can kill him if he understands why, but they can't if he is simply aware of the fact that they are.

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What's Up in the 8th

Weird week in the 8th.  The court did not hand down any decisions on sentencing, plea withdrawals, searches, evidentiary issues, or allied offenses; I can't remember the last time one of those wasn't featured.   It did hand down a decision on one of the most unusual procedural questions I've seen arise in a criminal case.  And,as I pointed out last week, alcohol makes a frequent appearance in the 8th's opinions (consumption by defendants, that is, although there's been a time or two... no, we won't go there), and while the 8th's body of work for this week is bereft of the usual legal issues, our old friends Johnny Walker and Jim Beam drop by.

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Case Update

No decisions from SCOTUS yet, of course, and no more oral arguments until October 29, which marks the beginning of the "November sitting" (yeah, I don't understand it, either), so the big news came not from what the Court did, but from what it will probably be doing:  deciding the constitutionality of the Defense of Marriage Act, the law overwhelmingly passed by Congress in 1996 defining marriage as a union of a man and woman.  Seven Federal courts have held that Section 3, which provides that definition, is unconstitutional on various grounds, including lack of a rational basis, violation of the 10th Amendment, and lack of congressional power.  Last week the 2nd District became the eighth, but with added impact:  it held that discrimination against gays had to be judged under the "heightened scrutiny" standard applicable to cases involving gender discrimination.  Although the parties in the other cases have sought Supreme Court review, the 2nd District case might jump to the head of the line; because of her work as solicitor general, Justice Kagan would have had to recuse herself from the other cases, leaving the possibility of a 4-4 split.

In a post a month ago, I'd opined that one of the key qualities of judge was "temperament. Being fair means acting fairly, and that means keeping a tight rein on your emotions."   Massillon Municipal Court Judge Edward Elum apparently didn't place as much priority on that as I do.  Two years ago, Elum gave Cody Dunn probation for domestic violence and underage alcohol consumption, only to see him pick up another case.  He gave him probation again, but Dunn didn't pay the required fines.  Fool me twice; when Dunn showed up for a meeting with his probation officer, Elum asked the officer to take Dunn into the courtroom, where, according to the opinion in Disciplinary Counsel v. Elumhe berated him with the following remarks:

  • Cody, quit screwing up. * * * Quit fucking up.
  • You have a bad case of D.H. Dickheaditis.
  • You're screwing off. You can't keep continuing to screw off or you'll be like the rest of the dickheads at the Stark County Jail.

For that, and his intercession in a byzantine police investigation - something about a cop emailing nude pictures of himself to a woman he'd given a traffic ticket to - Elum earned a public reprimand.

No foul language In the courts of appeals...

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Three on the 4th from the 2nd

Although the 2nd District has always been one of the best in Ohio in terms of its analysis of the law and the cogency of its opinions, that hasn't always carried over into its work on search and seizure cases, as typified by its holding in a 1998 case that someone with an outstanding arrest warrant has no reasonable expectation of privacy, and thus has no standing to object to a stop or search, no matter how egregiously the police conduct violates the 4th Amendment. It reversed that decision last year, though (although it's up on appeal; see discussion of oral argument here), and in three cases last week showed that it might give the 8th District a run for the title of most 4th-Amendment-friendly court in the state.

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Word play

Perhaps no phrase is more indicative of lawyers' proclivity for engaging in semantical gymnastics than former President Clinton's response in his deposition in the Paula Jones sexual harassment suit: "It depends on what the meaning of the word 'is' is." Well, the gang down in Columbus hasn't solved that riddle, but last week, in State v. Swidas and State v. Dibble, the Ohio Supreme Court did resolve the meaning of two words: "from" and "victim."

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What's Up in the 8th

One could probably do a research paper on the relationship between alcohol and crime just by thumbing through the 8th District opinions. The key phrase from the court's opinion in State v. Amborski comes on page 2: after informing us that Amborski and the victim, Seegert, had a "long-standing feud," we learn that "on the night in question, both men consumed varying amounts of alcohol." A dispute over a barmaid led to a wrestling match, with Seegert pinning Amborski and punching him repeatedly. When he let him go, Amborski went to his car, retrieved a gun, and returned. He fired off several shots to no apparent effect, at least on Seegert, and that was enough to allow the jury to acquit him of felonious assault.

They convicted him, though, of the offense of discharging a firearm upon or over a public road or highway -- we can safely surmise that our state legislators consumed varying amounts of alcohol before coming up with that one -- and his major claim on appeal is that the three-year firearm specification shouldn't attach to a crime that involves the use of a firearm and, in fact, can't be committed without it. Alas, that issue was settled two years ago by the Supreme Court in State v. Ford, in which they held that a specification wasn't an element of the crime, but a sentencing enhancement. Since Amborski used a firearm in discharging a firearm over a public road or highway, he gets the three-year enhancement. On the other hand, had he not used a firearm in discharging a firearm over a public road or highway, he wouldn't have gotten the enhancement. Simple as that.

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Case Update

The big oral argument last week before the U.S. Supreme Court was Fisher v. University of Texas, the affirmative action case. On the undercard were two habeas cases, plus one on the effect of a marijuana conviction on immigration status. The first two, on Tuesday, were Tibbals v. Carter and Ryan v. Gonzalez, concerning the question of whether a defendant's incompetency entitled him to a stay in his habeas proceedings. The defendants in both cases argued for an indefinite stay, but that wasn't happening. Back in 1967, the Court had granted a stay in a death penalty case involving an incompetent individual; the stay remained in effect until the man died in prison, 28 years later, and it became clear during oral argument in Tibbals that no one had the desire to repeat that. It's likely that some temporal limitation, such as a year, will be the Court's final formulation.

Moncrieffe v. Holder involved the Byzantine complexities of the immigration statutes, under which a person must be deported if found guilty of an aggravated felony -- felonies involving drugs or violence. Moncrieffe, who had been in this country since he was three, was found with 1.3 grams of marijuana, and pled to possession of the drug with intent to distribute. Under Federal law, which governs the immigration issue, possession with intent to distribute marijuana is a felony, but it's a misdemeanor if it's a small amount intended to be distributed with "no remuneration." That would seem to fit Moncrieffe, who was taking two joints to share with his friends at a party. The case turns on whether the courts can look to the individual facts or must simply analyze the elements that the state needed to prove in order to obtain its conviction. If that doesn't make much sense, the case didn't, either, so sue me.

Down in Columbus, two, count'em two, criminal cases. One involved the metaphysical question of exactly when is a person outside of a motor vehicle, and the other an issue of falsity of an affidavit for a search warrant. We'll discuss those on Wednesday. In the courts of appeals...

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Friday Roundup

Work habits. A couple of weeks back, I commented that judge's work habits up here can vary, with some being "morning persons" and others, not so much. Let's leave it at that. But this disciplinary decision indicates that our sister state of Pennsylvania takes a bit more jaundiced view of those things, as Maryesther S. Merlo, the magisterial district judge of Lehigh County, found out. (Despite the fancy title, the magisterial district courts are at the bottom rung of the Pennsylvania judicial system.) I'm guessing that there were some hard feelings after she got re-elected to a second term, because somebody dropped a dime on her right after that: within 10 months she was looking at a seven-count complaint from the Court of Judicial Discipline (and if that name doesn't find its way into a BDSM novel, I'll be amazed), all stemming from Merlo's problems with -- ahem -- time management. (One of the rules requires the judge to "devote the time necessary for the prompt and proper disposition of the business of their office." There's a concept.) Merlo's "chronic absenteeism and habitual lateness in appearing for court" was demonstrated not only by her not showing up at all on 30% of the workdays in the last two years of her first term, but by police officers' testifying that they made it a practice to call her courtroom to make sure she was there that day before bothing to respond to a subpoena.

What probably sealed the deal, though, was that Merlo also had jurisdiction over minor juvenile matters. The irony was not lost on the court:

It is beyond hypocritical for a judge who repeatedly fails to appear, or consistently appears late, for scheduled court proceedings to lecture and impose sanctions upon a juvenile who is appearing before the judge due to truancy issues.

Pressing the Easy button. The nattering nabobs of negativism, as Spiro Agnew lovingly called them, are all atwitter (note to self: check out whether since we now have Twitter, we can still use the word atwitter) about Justice Scalia's latest pronouncement on his constitutional interpretive method. At a speech before the American Enterprise Institute the other day, he explained that most issues are easy to resolve:

"The death penalty? Give me a break. It's easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state."

Much of the rejoinder was focused on the particulars. Heterosexual sodomy was criminal, too. An originalist view like Scalia's would permit racial segregation and allow bans on interracial marriage. And Scalia has been eager to embrace concepts like commercial speech, despite the fact that the Framers clearly did not intend for the First Amendment to apply to it.

But that's sort of beside the point. Of course many constitutional issues are easy for Scalia, because he's Scalia. Even the more cynical among us still cling to this fantasy about the justices acting as a group of rabbis with the Torah, parsing its words to derive its true meaning. They're not. Every justice comes with an ideological viewpoint, and that viewpoint informs their decision-making. Thomas does. Roberts does. So does Ginsburg and Kagan.

And so does Scalia. In his dissenting opinion in Lawrence v. Texas, which struck down gay sodomy laws, he spoke of the majority having succumbed to the "homosexual agenda. . . directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct," and that Americans had the right to protect "themselves and their families from a lifestyle that they believe to be immoral and destructive." Well, if you believe that the lifestyle is "immoral and destructive," it's a lot easier to uphold a law which is consistent with that belief.

That's not to pick on Scalia; the view expressed by some liberal justices that capital punishment is unconstitutional was the product of their core beliefs, not a careful analysis of the Constitution. But Scalia talks a lot about it, and that's not good. Our present government has been rendered dysfunctional by partisanship; people talk about the president's approval rating being below 50%, but the percentage of the public which approves of Congress is in the low teens, or less than the percentage which believes in UFO's. The Supreme Court has mostly remained above the fray; it's generally been among the most favorably-regarded institutions in the country. But the decisions last year, especially the one on the health care reform act, took a lot of the luster off of that; polls showed that 3/4ths of the public expected that decision to be made on the basis of politics, rather than law. And it doesn't help when you've got a justice going around telling everybody that he has an "easy" time making decisions about constitutional law, and thereby implying that anybody that didn't come to the same decision he did came to the wrong one.

Ooh-ooh, that smell. I had a motion to suppress hearing in drug case a number of years back where the cops claimed that they decided to search my client's car based on the smell of marijuana. It was a pound's worth of the demon weed, but it was in a ziploc bag, and I questioned the olfactory powers of the officer, so I had him open the evidence envelope -- also a sealed bag -- and take out the bag it contained.

At which point, I and the other people in the courtroom got together to make this video:

[youtube]http://youtu.be/WeYsTmIzjkw[/youtube]

Now, I knew that the case law held that the odor of marijuana was indeed sufficient to give probable cause to search a car, but I was also familiar with cases that held that an officer must show he had some expertise in detecting the odor. After that experience, I was at a loss to understand why. I mean, within seconds after the cop opened that bag, I was transported so far back into my college days that I almost registered for the fall semester. How could you not know what it was?

Well, there are experts and there are experts, and if you want to find an expert on detecting marijuana odors, as this post from Legal Blogwatch tells us, the guy you want to call is Richard L. Doty. Wikipedia informs us that he is "a researcher in the field of olfactory functioning and dysfunction (anosmia)" and the director of the University of Pennsylvania's Smell and Taste Center in Philadelphia. (Boy, if that isn't a conversation-stopper at a cocktail party. "And where do you work?") His testimony recently won a case in federal court; the cops had claimed that they smelled a strong odor of pot inside a suspect's car, and their search discovered ten grams of the stuff inside a mason jar. Doty testified that the mason jar wouldn't have allowed enough of an odor to get out in order for an officer to smell it.

Bet you he had fun preparing for his testimony. Hey, maybe he has a video.

Continue reading "Friday Roundup" »

Is parental discipline an affirmative defense?

None of this "time-out" crap for Leon McKinney. When it came to disciplining his kids, he was definitely Old School. The Old School, to be sure, seemed to be out of a Dickens novel: upset that the chest of drawers belonging to his 16-year-old son Jarred appeared disorganized, McKinney left the room and returned shortly thereafter with a leather belt, instructing Jarred to take off his sweatshirt so he could "get a whupping." The boy refused the command, and the two started tussling, the fracas ending with McKinney on top of Jarred, pinning his arms and legs down, and then striking him twice with a closed fist, once in the lip and once in the eye. McKinney then learned, to his sorrow, the wisdom of limiting his use of more extreme methods of behavior modification to the summer months. Jarred went to school, his nose started to bleed, people asked questions, and the upshot was McKinney's conviction of domestic violence, which the 12th District affirmed last week in State v. McKinney.

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What's Up in the 8th

There are so many things you learn reading the 8th District's decisions. State v. Agostofor example, teaches that when The Man gives you fifteen to life for murder, it's going to be fifteen full years before you're going to see the dour expressions of the parole board members; no good time credit. From State v. Lozada we learn that when a court remands a case solely for merger of firearm specifications, the trial court need not advise the defendant at resentencing of post-release control. And State v. Ford instructs that when the denial of two motions to vacate a plea have been affirmed by the appellate court, the chances of a different result in a third appeal from the same motion, with the same arguments, are nil.

Actually, we already knew these things. The defendants in those cases didn't, and thus argued those issues pro se. And will again: when it's going to be fifteen years, full or not, before you see the dour expressions of the parole board members and your options about what else to do are limited, you're likely to spend your time pestering trial and appeals courts with futile motions.

Gary Blackburn may have an opportunity to do that in the future, because he learned something, too.

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Case Update

The Supreme Court's docket is starting to fill, with seven new cert grants on Friday, included among them Alleyne v. US. Alleyne was convicted of robbery and using a firearm in the commission of the crime; the jury acquitted him of a charge of brandishing the firearm, but the court imposed an additional 7-year sentence, finding by a preponderance of the evidence that Alleyne should have known that his accomplice was going to brandish it. Back in 2002, the Court held in Harris v. US that brandishing was a sentencing factor, not an element of the crime. Defendants have argued in the decade since that Harris conflicts with the Apprendi/Blakely line of cases, but the Court's resisted the entreaties to take up the issue again, until now. Harris was only a plurality opinion, and Breyer, who concurred in the result, has made noises since then that he's had second thoughts. The sentencing elements/factors distinction has much more impact on Federal sentencing law than Ohio sentencing law, but any time the Court addresses a constitutional right like jury trial under the 6th Amendment, it's of significance. After all, look at the effect that Apprendi/Blakely had on Ohio law, culminating in State v. Foster.

Downstate, a significant ruling on juvenile rights in delinquency cases in State v. D.W. D.W. was 17 years old when he was charged with burglary. After finding probable cause, the trial court turned to the required amenability hearing; after being advised by the prosecutor that D.W. already had been bound over on another case, and an off-the-record discussion with counsel, the judge found D.W. not amenable and bound him over. The Supreme Court decides that the requirement for waiver of the amenability hearing is the same as for waiver of counsel: it must be done in open court, on the record, after a colloquy between the judge and the juvenile to determine that the waiver was made knowingly, voluntarily, and intelligently. It's an interesting decision, given that it's fairly clear from the transcript that the defense lawyer agreed to waive the hearing.

In the courts of appeals...

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Friday Roundup

Trick or treat. Given the pagan antecedents of the holiday, one would expect a First Amendment issue regarding Halloween to revolve around freedom of religion. Not so, according to this article. Not content with barring sex offenders from proximity to schools, day care centers, parks, bus stops, shopping malls, and anyplace else children might possibly congregate, the burghers of Simi Valley have passed an edict prohibiting sex offenders from "displaying Halloween decorations, answering the door to trick-or-treaters, or having outside lighting after dark on Oct. 31." Just to make sure everyone gets the point, offenders are also required to post a sign on their front door reading, in one-inch letters, "no candy or treats at this residence." If the legislation was prompted by evidence that urchins attired in their Spiderman and Catwoman costumes were being snatched up as they made their rounds seeking sugary treats (I've always suspected that the dental profession is the chief promoter of Halloween), the article doesn't mention it.

A group has filed suit against the restrictions, arguing that they both restrict speech -- no Halloween decorations? Say it ain't so! -- and "force" speech (the signs). The attorney for the group made the obligatory Nazi analogy, noting that "it's similar to Jews in Nazi Germany who had to wear the yellow star on their clothing." It certainly is, or at least would be if the sex offenders were then forced onto trains and taken to a concentration camp where they'd be methodically gassed and then cremated. I guess the moral of this story is that silly rules can beget silly arguments in response.

In any event, I'm thinking of putting up the sign on my front door, weighing whether saving a few bucks on bags of Twixt and Milky Way bars is worth having the neighbors think I'm a sex offender. It's a close call.

Court watch. With the presidential campaign in full swing (for the second straight year, some wags will claim), the refrain has become commonplace that the 2008 crash was the worst economic event to befall the country since the Great Depression. Thanks to political scientists Lee Epstein and Andrew Martin, we can find something else which harks back to those less-than-glorious years. To be filed under Things I Pretty Much Already Knew comes their latest report by assessing the ideology of the Supreme Court, concluding that the Roberts Court continues to be the most conservative bunch since the 1930's. That got kind of lost in the wash in the wake of the Court's final decision of the last term, where it upheld the constitutionality of the Affordable Care Act to the surprise of just about everyone. For those who think that Roberts' switch signaled a drift toward moderation, the authors note that it was the only time Roberts had joined the liberals in any 5-4 decisions in the 117 that there have been since he became Chief Justice in 2005.

But the report also includes a trend in the ideology of the current justices, and it brings up something I've mentioned before: I'm old enough to remember when therewasa liberal wing of the Supreme Court. Roberts, Alito, Scalia, and Thomas are in strong conservative territory, with Kennedy lagging behind but still fairly solidly there. At the other end of the spectrum, Ginsburg is the only justice who falls within a liberal classification, and that just that barely. And even she has become notably more conservative in her rulings (as has Breyer) over the past decade.

One topic that went completely unmentioned at the presidential debate the other note, and has received almost no attention during the campaign, is the fact that the new president will probably have a chance to appoint several justices to the Court: Ginsburg, Breyer, Scalia, and Kennedy are all in their 70's. Frankly, there's far more upside for conservatives than liberals. Should Obama win, Scalia, the most partisan of the justices, will undoubtedly remain on the bench, leaving the likelihood that Obama would at best replace two moderately liberal justices and one moderately conservative one with justices of a similar ideological bent. If Romney were to prevail, though, he would replace those three with... well, he's previously cited Roberts and Scalia as the type of justices he'd pick. Should that come to pass, in four years Epstein and Martin might have to reach back even farther to come up with an ideological analogue.

For your viewing pleasure. "Russ the Hammer"? I like the ring of that.

Or not. I've done posts before on lawyer advertisements, such as the one featured here, from New York attorney Jim "the Hammer" Shapiro:

http://youtu.be/zToHQ8oQvgA

I should have said former lawyer. You can find more of his advertisements floating around the web, but Shapiro's firm has been out of business for years. To no one's surprise, he ran into ethical problems which led to his suspension from the practice for a year, and he probably wasn't helped by things like the malpractice award of $1.9 million dollars that was handed down against him the same year by a New York jury, which found that a settlement of $65,000 for a crash accident victim who'd been left comatose for a month was woefully insufficient. By the way, Shapiro never appeared at the malpractice trial. He testified by way of deposition from his home in Florida, admitting that he lives there year round, and has never tried a case in his life.

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Too much time on traffic stops

The state highway patrol officer gets a call from dispatch: somebody phoned in an anonymously tip that a truck semitrailer with a certain Michigan license plate was carrying drugs, traveling north on I-71 around Mansfield. The officer pulls onto the road and comes across the truck five miles ahead. He waits for the truck to cross over the white line on the shoulder, and sure enough, it does, so he makes what will someday become this blog's Bullshit Traffic Stop of the Week™. One problem: the anonymous tip doesn't provide a basis for tossing the truck. A dog alert would do the trick, but the officer with the drug dog is still 30 minutes away. So the cop chats up the driver, asks to see the truck's log, checks that out... The dog finally shows up, alerts, and sure enough the cops find a brick of coke in the glove compartment.

Good search or bad? The basic law on it is simple: five years ago, in State v. Batchili (discussed here), the Supreme Court held that a motorist stopped for a traffic violation can be detained only "for a time period sufficient to issue a ticket or a warning." But if you know anything about the 4th Amendment, you know that even the "basic" law isn't simple: the fine print in Batchili says that the officer can detain the driver beyond the normal time if "additional facts are encountered that give rise to a reasonable, articulable suspicion of criminal activity beyond that which prompted the initial stop." And, of course, that's to be determined by the "totality of the circumstances."

Needless to say, that makes many 4th Amendment decisions on this issue so fact-specific they have no real precedential value. And that might be said for the 9th District's decision last week in State v. Davenport. But the decision offers a guide for the factors to be considered, and comes out with a pro-4th result, so it's definitely worth a look.

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Authority figure

From last week's Ohio Supreme Court decision in State v. Billingsley, we learn two things. We get a refresher course in contract law, and we learn why they're called "county prosecutors" and not "state prosecutors."

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What's Up in the 8th

Good news for Iran Doss. He got lucky with a woman he picked up in a bar.

Bad news for Iran Doss. She complained that she was too drunk to remember anything about that night, and Doss's statement to the police that he'd had sex with her was enough for a jury to find him guilty of rape under the "substantial incapacity" theory.

Good news for Iran Doss. The 8th District reversed his conviction, finding the evidence insufficient to establish that he knew or should have known of her impaired condition.

Even better news for Iran Doss. He sued the state for the two years he'd spent in prison on the case, and a judge found on summary judgment that Doss was entitled to damages for wrongful imprisonment, which the 8th District affirmed.

Bad news for Iran Doss. After the oral argument before the Supreme Court last week, it's abundantly clear that Doss's courtroom journey isn't near over.

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Case Update

At ten this morning the nine justices of the United States Supreme Court will trundle into the courtroom to begin the 2012 term. The 2011 term ended with a bang -- the 193-page magnum opus that was the Affordable Health Care Act ruling -- and was followed by whimpering in various circles that Chief Justice Roberts had switched his vote at the last minute to uphold the Act, to the anger and consternation of his fellow conservatives.

Today's cases concern the issue of corporate civil tort liability under the Alien Tort Statute, and whether a houseboat constitutes a "vessel" under Federal maritime jurisdiction. On the offchance that a reader of this blog would be interested in learning more on those cases, I'd like to refer you to somewhere you could do that, but I wasn't sufficiently interested in them to look for such places, so you're on your own. Next week presents some criminal cases, so we'll talk about those when they come up. The end of the month holds more promise, as the two "drug dog sniff" cases are scheduled for argument on Halloween. Make of that what you will.

The Court's docket for the term, as of now, is only half filled, but major decisions on affirmative action, gay marriage, and voting rights are in the offing. The former, concerning the University of Texas' admission policy, comes up for argument on Wednesday, and you'll want long odds if you're picking Texas. The last time the Court tackled the issue of school admissions and affirmative action, in 2003, Justice O'Connor managed to cobble together a bare majority to uphold it. She's since been replaced by Justice Alito, whose previous writings on the subject of affirmative action show a clear hostility to it.

Down Columbus way, in another sign o' the times, the court held in Rowell v. Smith that the juvenile court had jurisdiction to allow temporary visitation to a non-parent; after the breakup of a lesbian couple, the biological mother of the child refused her ex-partner any contact with the child, despite repeated orders to do so from the trial, appellate, and Supreme courts. The court held that visitation could be allowed if found to be in the best interests of the child, rejecting Smith's argument that, as the child's parent, she had the unfettered right to decide that issue. The case is more complicated than that brief summary would indicate, and it's unlikely to be the last decision on that subject.

There was one criminal case of significance, State v. Billingsley, which we'll discuss on Wednesday. In the courts of appeals...

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