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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.

That was one of the assigned errors, and it would have been easy to dispose of.  No objection had been lodged, so it's plain error; just point out that the evidence was overwhelming, and the introduction of this evidence didn't rise to the level of resulting in a manifest injustice, and call it a day.  Instead, the court gives its imprimatur to the introduction, saying this in the nature of "background evidence."

Evidence of what?  It's not relevant character evidence; the court acknowledges that would be limited to the issue of whether Ghee was a peaceful or nonviolent person.  The court cites a 10th District decision which allowed pretty much the same type of evidence, but there the defendant claimed the victim committed suicide, and so the evidence at least went to refute that.  Correct outcome, but don't be surprised if prosecutors treat it as an invitation to have witnesses draw favorable comparisons between the victim and Mother Theresa.

The court also hits the books in another case with the same name, State v. Robinson.  This was the companion case to State v. Hussing, which I discussed a few weeks back; Hussing and Robinson were the parents of an 8-year-old boy who died after being left untreated for Hodgkins lymphoma.  The defendants argued they were unaware that the boy was ill, but two doctors testified at the sentencing that the boy's condition at death made this impossible.  The chief claim in Robinson is that the trial judge erred by not allowing the doctors to be cross-examined.

The appeal frames this as a denial of the right to counsel, but the court decides that it's really an argument that defendant was denied his right to confrontation, and says that this right doesn't apply to sentencing.  The opinion cites four cases for this, and I checked them out.  They're not the best; they raise arguments that a judge couldn't rely on a pre-sentence report because it was based on information that the defendant never had an opportunity to cross-examine.  That's not an analogous situation, but spending five minutes with my BFF Lexis led me to find several other cases which are very similar to Robinson, and rule the same way.  Still, I've got a little bit of a problem with it.  Getting away from the confrontation/counsel arguments, it seems to me that there's a due process problem here.  The doctors' testimony was unquestionably critical in the judge's determination of the appropriate sentence (he maxed out both Hussing and Robinson).  It seems fundamentally unfair to let that testimony go unchallenged under these circumstances.

Finally, we come to State v. Woods, where the State suffers about as severe a smackdown in a search cases as I can remember.  Two police officers on patrol spotted a car ahead of them, paced it for a couple of blocks, determined it was going 35 mph in a 25 mph zone, and pulled it over.   They asked Woods to step out of the vehicle, patted him down, and found a small bag of marijuana.  This, of course, would be a minor misdemeanor, and a non-arrestable offense, but the officers were armed with knowledge of the intricacies of the Cleveland City Ordinances, and so arrested him for using a motor vehicle to solicit drug sales.  The patdown was prompted, the officer testified, by his detection of the "very strong" odor of marijuana.  The subsequent inventory search of the vehicle revealed marijuana, apparently capable of emitting that "strong odor" despite being sealed inside of three plastic bags.  The inventory search was nothing if not thorough; the officer testified that he even opened the hood "just to make sure everything's there that's supposed to be there."  Apparently, the City of Cleveland vehicle inventory form now has boxes to check off whether the oil and transmission fluid are at appropriate levels.

The trial court tossed the search, finding no testimony that the officers had any "training in detecting speed of another vehicle unaided by technology," and that the inventory search was a sham.  The appellate panel agreed, concluding its opinion with an observation that is a treasure:

This is a classic example of a police officer's intentional use of an unlawful traffic stop, under a questionable codified ordinance, for the sole purpose of conducting a fishing expedition for evidence of another crime, and a tailored script at the motion to suppress hearing to justify the stop and subsequent searches.

But let's take a closer look at this, because there's an interesting issue here.  The opinion spends a lot of time talking about the officer's visual estimation of speed, noting that numerous appellate courts had held that a visual estimation alone was insufficient to support a speeding conviction, but that two years ago in Barberton v. Jenney the Ohio Supreme Court had held that it was.  The court found that pacing a vehicle was sufficient, but that the officers hadn't had sufficient time - they followed Woods' car for only two blocks - to do that.

Here's the thing, though:  Jenney raised such controversy that the Ohio legislature passed an amendment to 4511.091(C)(1), which reads:

No person shall be arrested, charged, or convicted of a violation of any provision of divisions (B) to (O) of section 4511.21 or section 4511.211 of the Revised Code or a substantially similar municipal ordinance based on a peace officer's unaided visual estimation of the speed of a motor vehicle, trackless trolley, or streetcar.

That's my emphasis; I think you could make a pretty good argument that this means a stop based on a visual estimate of speed is invalid.  And if that's the case, the evidence gets thrown out without all the fuss about whether the cop has any training in "detecting speed of another vehicle unaided by technology."

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