January 2013 Archives
The last time Congress enacted gun control legislation was in 1994. It was a Democratic Congress which passed the bill and a Democratic president who signed it. That fall, the Republicans gained 52 seats in the House, gaining control of that body for the first time since the 1950's. The GOP won control of the Senate, too, picking up nine seats. In 2000, while everybody focused on the Florida ballot fiasco as the reason for Al Gore's loss in the presidential race, Florida wouldn't have mattered if Gore had won his home state of Tennessee, and West Virginia, which had gone Democratic in every election since 1960 except for the Nixon and Reagan landslides in 1972 and 1984. Opposition to gun control was viewed as the major reason for Gore's loss in those states.
That, as they say, was that. Seung-Huyi Cho gunned down 32 people at Virginia Tech in 2006. Jarold Laughner opened fire in a supermarket parking lot near Tucson in 2011, killing six, including a Federal judge and a nine-year old, and wounding a U.S. congresswoman and a dozen others. Last year James Holmes walked into a theater in Aurora, Colorado, and sprayed the crowd with a rife holding a 100-round capacity drum, leaving a body count of an even dozen, and several score more wounded. On each occasion, there was some clucking of tongues that something needed to be done about this, but talk is all it turned out to be.
And then Adam Lanza walked into a Connecticut elementary school and slaughtered twenty children and six adults, and that was just enough to restart the conversation about gun control. But there are a number of events which have occurred since 1994 -- political, practical, and legal, -- that make passage of a major gun control bill problematic.
When I graduated from law school in 1975, there were 14 women in a class of about 200. There weren't any female justices on the United State or Ohio Supreme Courts, and you could count the number of women on the common pleas court and appellate bench in this county on the fingers of one hand.
You've come a long way, baby. Between 1970 and 1990, the percentage of women lawyers in the United States rose from 3% to 22%, and increased again to 37% by 2010. Three of the nine US Supreme Court justices are now women, as are four of the seven on the Ohio Supreme Court, seven of the twelve appellate judges in the 8th District, and twelve of the thirty-three county common pleas judges here.
So has this made any difference?
David Deanda caught a pretty big break at trial. He'd gotten into a knife fight where the other guy had forgotten to bring a knife. As might be expected, the other guy wound up the worse for it; Deanda was still yelling that he was going to kill the victim after the cops pulled him away, and the victim had to be life-flighted to the hospital. That earned Deanda an indictment for attempted murder, but the jury convicted him of the lesser included offense of felonious assault.
Deanda caught an even bigger break in the court of appeals. By a 2-1 vote, it decided that the jury shouldn't have been charged on felonious assault, because felonious assault wasn't a lesser offense of attempted murder.
So there was everybody at the oral argument on the case last week before the Supreme Court, about whether the decision to charge on a lesser offense should be made based on an abstract comparison of the elements of the charges, or by taking into consideration the facts of the case. As Yogi Berra would say, "It's déjà vu all over again."
The only US Supreme Court decision last week, and the 11th of the term, was in a case involving Medicare reimbursement. That was far overshadowed, however, by the Big News: Clarence Thomas spoke in an oral argument, for the first time in six years. Exactly what he said is lost to the ages, though; according to the official transcripts, his remark was "Well -- he did not -- (laughter)," but the accounts of observers seem to pose the possibility that it was more. The comment came during an exchange between Scalia and the lawyers for Jonathon Boyer, who sat on Louisiana's death row for five years waiting for the state to come up with funding for two attorneys for him. Scalia suggested that one attorney might have been enough, especially since she was a graduate of Yale's law school. The thinking is that Thomas, also a graduate of Yale, might have made some self-deprecatory remark about that not being an indicium of competence. Not exactly up there with Abbot and Costello's "Who's on first," but it may be that Scalia and Thomas can take their act on the road.
That fact from the argument (which I'll discuss in more detail later this week) also highlighted another point. Scalia is from Harvard, as are Breyer, Kennedy, Kagan, Ginsburg, and Roberts; Thomas is a Yale grad, as are Sotomayor and Alito. Yep, that's nine. Whatever ideological or demographic diversity exists on the Court, there certainly isn't any educational diversity.
Darius Clark was sent to prison for 28 years for child abuse, based on what a 4-year-old, a detective, two social workers, two teachers, and two relatives said happened. The 4-year-old never appeard at trial, though, the judge having determined that the boy was incompetent to testify. The other witnesses didn't have anything to say other than what the boy had told them.
Unlike Thomas Ricks, whom we talked about yesterday and whose conviction and sentence for aggravated murder is riding on the outcome of his case, Clark no longer has any skin in the game; regardless of what the Supreme Court decides, he's getting a new trial. After watching the oral argument on Wednesday, that's probably a good thing.
Ronald Williams got convicted of aggravated robbery and some other stuff, and here's how the cops nabbed him: they tracked down the van used in the robbery, which belonged to a flower shop, and one of the occupants told them that Williams had used it earlier in the day. That led them to Williams, which led to a bunch of other evidence. A cop was allowed to testify as to the occupant's identification of Williams as having driven the van earlier.
The 8th District starts off the new year two weeks into it by releasing a baker's dozen decisions, eight of them criminal matters. There's a reason for the delay: two new judges were just elected, and so some things had to be shifted around. One note on that point. While the 8th District previously led the league in Gallaghers, with two, it now has a third; Eileen T. Gallagher has joined Sean and Eileen A. I'd figure out the odds of them being on the same panel, but one of the reasons I went to law school is they promised there wouldn't be any math.
In any event, 2013 begins with the court tackling issues like probation hearings and consecutive sentencing and... spitting on an attorney?
You might be one of the houseboat owners non-plussed to learn that the "boat" part of that word does not make it a section 3 vessel under admiralty law; unfortunately, you will have to look elsewhere for a fuller explanation of the Supreme Court's decision last week on that point in Lozman v. Riviera Beach. A more interesting case for my uncounted legions of readers was the oral argument in Alleyne v. US, presenting the issue of whether the Apprendi rule should be extended to mandatory minimum sentences. I'll have more on that later in the week, like an explanation of what that sentence even means. Although some decisions are expected next week, there are no more oral arguments for the Court until the end of February; one of those will be in Maryland v. King, on whether the 4th Amendment allows states to collect and analyze DNA from people merely arrested and charged with crime, as opposed to convicted.
No opinions from Columbus in criminal cases, but that'll change in the future, with seven cases on tap for oral argument this week, six of them criminal. There's a big case on lesser-included offenses on Tuesday, and Wednesday offers two cases on the right of confrontation. State v. Ricks presents the scenario all too common to defense attorneys: the trial court permitted a police officer to recount statements made by a co-defendant which incriminated Ricks, as being for the purpose of "explaining his investigation." The trial court instructed the jury not to take the statements into consideration in determining Ricks' guilt, which I'm sure made it all better. There is case law upholding this, dating back to 1987, but that was before Crawford v. Washington made the Confrontation Clause a whole new ballgame.
Crawford prohibits the use of "testimonial statements" without cross-examination, and one of the lingering questions is to whom must the statement be made to be considered testimonial? Although the Supreme Court hasn't come right out and said it, it seems that only "agents of law enforcement" qualify. State v. Clark presents the question of whether teachers fall into that category in a child abuse case, given their status as "mandatory reporters," i.e., they're required by law to report any incidence of child abuse. The 8th District (discussion about that decision here) held that they were, and also bounced the testimony of two social workers and a detective on that basis, and of two relatives on the grounds that their testimony did not satisfy the requirements for admission of EvidR 807. Interestingly, the State sought appeal only on the exclusion of the teachers' testimony, so that's the only issue before the court. I'll have a post on Ricks and Clark later this week, too.
In the courts of appeals...
You've got a date rape case. Your client Dave and the alleged victim have a rather tumultuous history, and he swears to you that she made this up just to get even with him for... well, whatever.
You send your investigator out to get a statement from Shanna, the other half of this grotesquely dysfunctional couple, and sure enough, it's pure gold. Forcible rape has now turned into sorta rough make-up sex, and yeah, if she hadn't been so upset with Dave for sleeping with that whore Linda and hadn't been so drunk, she never would have told the cops what she told them that night.Here's the question: do you have to turn that statement over to the prosecutor?
Sometimes, it's tough to figure out how a court's going to rule after oral argument. Sometimes not. I had an argument down in the 5th District a few months back, where one of the judges openly told the defense counsel that he thought her argument was frivolous, and the other two judges said nothing to indicate their disagreement with that assessment. Not hard to figure out how that case is going to go.
After watching the Supreme Court argument in State v. Darmond last week, it's pretty clear that the court believes the trial judge went too far in dismissing the indictment with prejudice because of the State's discovery violation. Beyond that, though, it's anybody's guess as to what's going to happen.
Everybody says you should have a business plan. Over the years, mine has consisted of deciding what I don't want to do anymore, and then putting myself in a position where I don't have to do it. My practice used to be about 60% civil, running the usual gamut between cheapo divorces, fenderbenders, and some civil litigation thrown in. Now, it's 90% criminal trial and appeals. I never really liked the civil stuff, and I finally stopped doing it.
I've been giving some serious thought to adding assigned criminal cases to the "I don't want to do this any more" list.
The 8th District handed down 1023 decisions last year, 223 fewer than in 2011. That was in keeping with a general decline in Supreme Court and appellate cases, about 800 fewer than the year before. The 8th still did the heavy lifting, issuing about over 300 more opinions than the next-highest volume court, which was the 5th District, with 691 cases.
That's the quantitative result. What's the qualitative analysis? Let's take a look.
SCOTUS came out with four decisions last week, two of the criminal variety. In Ryan v. Gonzales, the Court unanimously - and, in light of its general hostility to habeas claims, unsurprisingly - held that a defendant's incompetence did not entitle him to a stay of the habeas proceedings until he could be restored to competency. Unanimity was also achieved in Smith v. US, with the Court holding that a defendant bears the burden of proving that he withdrew from a conspiracy. No real constitutional issue here; the rule is that the state can't shift the burden of proof of an affirmative defense to the defendant only when an affirmative defense negates an element of the crime. Smith was thus left with a statutory argument, and that wasn't going anywhere.
The big argument last week came in Missouri v. McNeely, where the government claimed that a warrant should never be necessary to draw blood from a suspected drunk driver because the dissipation of alcohol in the bloodstream. Nobody on the Court was buying that, although it seems likely that the case's resolution will allow police to dispense with the warrant requirement in true emergency situations, such as might be encountered by rural police departments.
The big argument this week will be in Alleyne v. US. "Mandatory minimum" sentences have been all the rage, allowing judges to impose those minimums if they find certain facts, like the quantity of drugs involved. That's been approved by the Court on several occasions, most recently in 2002 in Harris v. US. But Thomas dissented in that case, arguing that Apprendi (Blakely wouldn't be decided for another two years) required that a jury find the facts elevating the crime to the mandatory minimum. The sole question the Court granted certiorari on was whether Harris should be reversed. That will have much more effect in the Federal system than here in Ohio; offhand, I can't think of an Ohio offense that allows a judge to make a factual finding which results in imposing a mandatory minimum sentence.
Arguments down in Columbus, too, in a death penalty case involving DNA and another involving a dismissal of an indictment for a discovery violation. I'll have a closer look at the latter later this week, since it gives us a first look at the three new justices on the bench.
Not much going on in the courts of appeals; the holiday hangover has resulted in barely 30 appellate decisions so far this year. Let's take a look at the few, the proud - whoops, sorry, that's the Marine slogan - the few cases that were decided.
Child sex cases are always the worst.
There are two approaches to plea bargaining. One is to simply lay out the options a client faces; the other is to nudge him, sometimes forcefully, toward taking a plea. (I don't know of any lawyer who will try to dissuade his client from pleading and instead take the case to trial, for reasons which you should be able to figure out.) Just about any attorney will use a combination of both approaches, going with the latter if the deal is particularly favorable, or if a guilty verdict at trial is a foregone conclusion.
Time to take a look at the significant appellate decisions handed down in the past month.
The 2nd District tackles the issue of destruction of evidence in State v. Beavers. The defendant had filed a motion to preserve a videotape, but the tape was destroyed. The trial court dismissed the charges, following a line of Ohio appellate cases which have held that if the State destroys evidence that's been specifically requested by the defense, the burden shifts to the State to prove that the evidence isn't exculpatory. Not the way it works, says the court; US and Ohio Supreme Court decisions have made it clear that where the evidence is merely "potentially useful," the defendant always maintains the burden of showing that it was in fact exculpatory... How deferential the standard of review for claims of ineffective assistance of counsel is, especially where the issue pertains to anything remotely connected to trial strategy, is demonstrated by the 5th District's decision in State v. Ross. Counsel had introduced evidence of his client's prior domestic violence conviction, and a statement by the victim, despite the fact that the trial judge had ruled both were inadmissible. No matter, says the court: the lawyer introduced it to show that the victim had been coached, and that was a permissible trial tactic... If you argue in a motion to suppress that the cops didn't have the right to search the car, that doesn't preserve the argument on appeal that the stop was illegal, the 10th District rules in State v. Taylor...
I haven't done a case update in a month. Usually, I'll deal
with US and Ohio Supreme Court decisions, and then some pertinent Ohio
appellate cases. My BFF Lexis, though,
informs me that there are about 300+ of the latter to wade through, an
Herculean task akin to cleaning the Augean stables, which probably is not the
metaphor I want to employ if I'm trying to curry the favor of appellate judges.
So what I'm going to do here is just
deal with the Supreme Court cases; appellate edition tomorrow.
Susan Yates had a hard life, and she died bad. She was homeless when Philip Jones met her in early 2007. A couple months later, a jogger found her body lying on a path in a cemetery. She'd been raped and strangled. A month ago, in State v. Jones, the Supreme Court affirmed Jones' conviction and death sentence for her murder.
I don't usually do posts about death penalty cases, because they're extraordinarily depressing. There are at least two deaths involved, one actual and one anticipated, and the legal issues are usually recycled or of little moment. Not so with Jones. It raises some interesting legal issues, and also some discomfiting questions about the death penalty.
Yesterday we talked about a situation where you work out a plea for your client, only to have the prosecutor yank it on the day of the plea hearing. Here's another variation on that theme.Your client was initially charged with child rape and kidnapping, but the prosecutor has some serious problems with the case, so you work out a deal for a plea to one count of abduction. Sure, it's a third degree felony, but there's no sex offender registration, and given your client's lack of any prior criminal record, he's a good candidate for probation. So you're non-plussed when the trial judge maxes out your guy at sentencing, quoting extensively from the pre-sentence investigation report, which recounts the victim's version in excruciating detail. But your client didn't plead to rape, so how can that be taken into consideration in sentencing him, you argue, to no avail...
Something like that is what happened to Samuel Peal, and the week before Christmas, he got a serious lump of coal in his stocking: in State v. Peal, the 8th District said there was nothing wrong with that. Sort of.
You've worked your butt off to get a plea deal. As usual, that means you've spent as much time, if not more, negotiating with your client as you have with the prosecutor, managing his expectations, explaining his options, guiding him toward the realization that those options are either doing some time in prison, or doing a lot of time in prison. You finally work everything out, but when you show up the morning of the plea hearing, the prosecutor advises you that the deal's off the table.
That's the scenario from the 8th District's decision a few weeks ago in, State v. Padilla.
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