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December 2012 Archives

A little bit of this and that

I'll be doing my next Case Update on January 7th, and What's Up in the 8th the day after, so that will get me back in my regular routine with those two. In the meantime, today we'll talk about a few decisions I've come across in the past few weeks which are of some consequence.

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"Mandatory" probation

books.jpgOne of the biggest changes in sentencing wrought by HB 86 was the reinstatement of the requirement that judges make findings before imposing consecutive sentences. That's resulted in a flurry of appellate decisions, many of them contradictory, as we discussed a few weeks back. What hasn't gotten nearly as much play is one of the other major changes: the "mandatory probation" provision of RC 2929.13(B)(1), which essentially requires judges to impose community control sanctions, in certain circumstances, on defendants convicted of non-violent fourth and fifth degree felonies. The two most recent cases on the statute, the 8th District's decisions a few weeks back in State v. Taylor and State v. Caraballo, don't really address some of the constitutional issues presented by the statute, but they do indicate some of the problems the statute creates.  

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An encomium to the 4th Amendment

books with gavel.jpg

Quick quiz time. Name the author of the following quotes on search and seizure law:

  • "The exclusionary rule and the concomitant suppression of evidence generate substantial social costs in permitting the guilty to go free and the dangerous to remain at large. Because of that costly toll, the courts must apply the exclusionary rule cautiously and only in cases where its power to deter police misconduct outweighs its costs to the public."
  • "There is always a temptation in criminal cases to let the end justify the means, but as guardians of the Constitution, we must resist temptation. After all, Fourth Amendment freedoms are not second-class rights; they are indispensable to all members of a free society."

The answer to both: Ohio Supreme Court Chief Justice Maureen O'Connor.

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404(B) after Williams

courtgavel_4.jpgOf all the various types of evidence that can be used against a defendant, there's none more deadly than EvidR 404(B), which allows the State to introduce evidence of prior "bad acts" of a defendant in certain circumstances. It's bad enough when you've got a client on trial for, say, robbery, and the State introduces evidence that he's got prior drug convictions. That's why we rarely put our clients on the stand if they've got criminal records. But if the conviction is for the same offense they're on trial for, well, that's pretty much The End.

That's what happened to Van Williams: he was charged with kidnapping, rape, and gross sexual imposition of a 14-year-old boy, and the trial judge allowed in evidence that Williams had a consensual sexual relationship with a 16-year-old boy twelve years earlier. Williams was convicted, but the 8th District reversed that last year in an en banc decision, which I called "essential reading if you've got a case involving 404(B) evidence."

Well, so much for that. Not that the Supreme Court's reversal of Williams last week came as any surprise; in my review of the oral argument, I'd said reversal was "a foregone conclusion." (Brief timeout here for obligatory stopped clock/blind squirrel metaphors.) So how bad was it? Well, it could have been a lot worse. Let's take a look.

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Three on sex offenses


The transition from Megan's Law to the Adam Walsh Act was supposed to be a smooth one. Megan's Law imposed certain requirements upon sex offenders, and the AWA made those stiffer. Under Megan's Law, for example, if an offender failed to notify the sheriff that he'd changed his address, that was a fifth degree felony. Until 2003, when it became a third-degree felony. Until the AWA, when it became the same degree of felony as the underlying offense.

This simple scheme went all to hell with the Supreme Court decisions in State v. Bodyke, State v. Gingell, and State v. Williams. Bodyke held that the reclassification scheme of AWA, which allowed the Attorney General to reclassify offenders previously classified under Megan's Law, was unconstitutional as a violation of the separation of powers. Gingell held that since a Megan's Law offender couldn't be reclassified, he had only the registration duties under that law, not the AWA. And in Williams, the court found that while previous sex offender registration and notification laws had been "remedial," the AWA crossed the line into punitive territory, and thus an offender who committed the crime prior to the effective date of the AWA couldn't be classified under that law, even if he hadn't been previously classified.

That left some serious questions to be answered as to exactly what the duties of a sex offender were, and what punishment could be imposed for his failure to do them. The Supreme Court attempted to answer those questions two weeks ago in another trio of decisions. Let's take a look at what they came up with.

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What Williams decided -- and didn't

Two weeks ago, in State v. Williams, the Ohio Supreme Court tackled the issue of allied offenses for the first time since its landmark decision two years ago in State v. Johnson (discussed here). Johnson jettisoned test employed by State v. Rance, where the elements of the two offenses had to be compared in the abstract, without reference to the underlying facts. Instead, according to the plurality opinion, the focus was on the defendant's conduct: if the two offenses could've been committed with the same conduct, they were allied, and if they were committed with the same act, they merged.

While Johnson was a significant improvement over Rance, simply because Rance proved utterly unworkable, as I've mentioned before, Johnson left a number of questions unresolved. When I discussed the oral argument in Williams, I'd suggested the court might "use the opportunity to clarify Johnson," thus displaying my customary prescience, similar to my decision to forego the IPO in Google on the theory that it was just a "passing fad."

Well, not quite that bad. Williams did decide some things, and left some for another day. Let's look at what it did and didn't do.

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Public Service Announcement

I know, my grand reopening is tomorrow, but one of my peeps, Bret Crow, is Public Information Officer for the Supreme Court, and he sent me an email this morning. Seems that effective the 1st of the coming year, the new Supreme Court Rules of Practice goes into effect. Although fans of Palantino Linotype will be overjoyed to find their font among those approved for use in pleadings before the court, the changes seem mostly cosmetic -- Bret's major concern is that the Rules have been "reordered and renumbered," and, knowing his target demographic, that this "may cause some fits for attorneys who regularly practice here." He asked me if I'd consider running "a public service type announcement about this on the blog."

Consider it done. As the full press release notes, the purpose of the changes was to present a "more logical ordering of the rules" in an effort to help attorneys and litigants. As I explained yesterday, my plate runneth over in terms of cases, so I can't discuss them in detail, but since there are few substantive changes, there's little point in my doing that. You can get the complete text of the amendments here, so get on with your bad self and do some reading over the holidays. Let's put it this way, if the clerk sends something back because you didn't do something you were supposed to, you can't say, "Alas! If only Bensing would have written about it in his blog!"

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Buried treasure

I wasn't terribly enthused about the 8th District's decision in State v. Hood, deeming it worthy of only half a paragraph in my weekly summary of the 8th's decisions when it was handed down. The key issue in the case was testimony by a detective linking Hood to a murder, based on the detective's determination from Hood's cell phone records as to his location at the time of the crime. The appellate panel found it problematic that no one had bothered to bring in anyone from the cellphone company to authenticate the records, but found the error harmless. Ho-hum. I was mystified when the Supreme Court accepted it. The issue raised by Hood there was that admission of unauthenticated cell phone records violated the Confrontation Clause, which really seemed more an issue of evidence than of constitutional law. The State apparently took my jaundiced view of the case's significance, not even deigning to file a response to Hood's memorandum in support of jurisdiction. My ennui deepened when I watched the oral argument a year ago and heard Hood's attorney say that any confrontation clause problem would have been satisfied by the cellphone company merely providing a certificate saying that the records were authentic, an approach specifically rejected by the Supreme Court in Melendez-Diaz v. Massachusetts; if a live witness weren't required, there's really no confrontation issue, so what's the point? And there was the additional problem, noted in my brief summary of the oral argument: "To provide any relief to Hood, the Supreme Court would both have to rule in his favor and conclude that the appellate court was wrong in its application of the harmless error standard." That's a tall order, and besides, the court rarely gets into the game of determining whether the lower court came to the right conclusion about whether an error was harmless.

Justice Terrence O'Donnell apparently agrees with me. When the Supreme Court released its decision last week, he was the lone dissenter, on the basis that the appeal should have been dismissed as improvidently allowed. But it turns out there's a nugget in the decision which could prove immensely helpful to the defense.

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What's Up in the 8th

A while back, I had a murder case which pled down to a manslaughter, and at the sentencing, I was non-plussed to see numerous family members of the victim troop to the podium to recount the wondrous pleasures bestowed by the recently deceased upon all those who knew him.  Not to speak ill of the dead, but the young man in question had been shot down on a street corner in the inner city at two in the morning; the details were unclear, but I'm guessing he wasn't collecting for UNICEF at the time.  Unfortunately, only a single member from my client's family made an appearance, a cousin, who concluded her short and somewhat disjointed speech on his behalf by beseeching the judge to "cut him some slack."

Kevin Ghee's family engaged in similarly hagiographic revisionism in State v. Robinson.  Ghee had gone to a bar, got into two fights there, and after being kicked out, got into another fight in the parking lot.  His thirst for combat unsated, he then approached a vehicle, reached inside, and punched the occupant three times.  The occupant was Robinson, who had a knife, got out of the car, and used it, leaving Ghee dead in the parking lot.  Not surprisingly, the autopsy showed Ghee with a blood/alcohol reading over twice the legal limit.  Nonetheless, the family related that he was a "great person," "an amazing dad, family oriented," and "fun, always happy, nice to be around."

The difference was that this was during trial, not sentencing.

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Case Update


The big news out of SCOTUS was no news: in its conference on Friday, the Court took no action on the ten same-sex marriage cases it now has on its docket. There is no question that the Court will take up some of the cases, and while it might fritter around the edges - deciding, for example, whether federal benefits can be denied same-sex couples who are married in a state which permits gay marriage - it will have to confront the central question of whether gay marriage can be constitutionally prohibited, and probably sooner rather than later. Society is clearly moving in the direction of approving gay marriage: three states passed referenda permitting same-sex marriage this past election, and one other rejected a referendum banning it. In twenty years, it's likely that people will regard bans on same-sex marriage the same way we look back on the prohibition of interracial marriage, which wasn't struck down until 1967.

But that's twenty years from now; the question at present is whether the Court should enter the fray, or leave it up to society to resolve the issue through the legislative process. Either way, you can bet on the Court's eventual decision being both contentious and momentous; these are the kinds of cases that people will be studying a century from now, taking their place with Dred Scott, Plessy v. Ferguson, Brown v. Bd. Of Education, and Roe v. Wade: decisions which substantially changed the nature of the country.

If you're interested in the issue, SCOTUSblog has an excellent 4-part analysis; the final part is here, and gives links to the previous three.

Down in Columbus, two decisions of note. The defendant in State v. Moore is the victim of bad timing. Convicted of two drug cases and serving 22 years in prison, Moore latched on to the "void sentence" argument on post-release controls and extended it. There was a time, you'll remember, when the Supreme Court held that failure to properly impose post-release controls rendered the entire sentence void, and required a de novo resentencing. Several courts expanded that beyond PRC: a failure to impose the mandatory driver's license suspension for a drug case, for example, also resulted in a void sentence. Moore latched onto the language of RC 2929.18(B)(1), which requires a court to impose the mandatory fine in a drug case unless the defendant files an affidavit of indigency prior to sentencing. Moore hadn't, and so he claimed entitlement to a de novo resentencing. (How this would have benefited him is unclear; he'd agreed to the sentences in both cases.) Unfortunately, three months after Moore filed his motion, the Supreme Court decided State v. Fischer, which held that failure to properly impose PRC rendered only that portion of the sentence void. Resentencing was still required, but limited to the proper imposition of PRC. The court did the same thing to the license suspension earlier this year in State v. Harris, and follows suit in Moore: he will get his resentencing, but the only result will be the imposition of the mandatory fines. Be careful what you ask for.

Plenty of disciplinary cases this past week, but the most interesting one, especially for Ohio State fans, is Disciplinary Counsel v. Cicero. Back in April of 2010, the feds raided Edward Rife's house as part of a drug-trafficking investigation, and seized about $20,000 worth of Ohio State football souvenirs and memorabilia which, it turned out, he'd bought from players, in violation of NCAA regulations. Rife contacted Cicero, a well-known Columbus criminal lawyer, to discuss the case, and met with him again about ten days later to go into more detail about it. He never hired Cicero, but after each meeting, Cicero sent a summary of what Rife had told him to Jim Tressel, the OSU football coach. The issue is a lawyer's duty of confidentiality with regard to the confidences conveyed by a prospective client, one the court acknowledges is a question of first impression. It's not a hard question; Cicero's communiques to Tressel contained numerous requests to "keep our emails confidential," in the apparent hope that Tressel would do what Cicero could not. The only real dispute is to the sanction; Cicero gets a year suspension, but Lundberg Stratton and O'Donnell argue for a six months, stayed, finding that Cicero's motive was not self-aggrandizement, but "to alert the coach about misconduct by his players that could affect the team." That's the Buckeye spirit. Sadly, Cicero's suspension comes a bit too late; had it come earlier, he could have spent it watching Ohio State compile an unblemished 12-0 record this past season. And because the misconduct did affect the team, he can't even use the time off to watch them in a bowl game: they're barred from participating because of the NCAA sanctions.

In the courts of appeals...

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