February 2013 Archives
So for weeks I don't have any Supreme Court decisions to talk about, which is sort of like being a baseball writer in January. But spring training has started, so you can begin your day by reading about how well the Indians are going to manage with one of the best defensive outfields in baseball but one in which the three players may not hit double figures in home runs -- combined -- or whether the Reds idea of making newly-acquired Shin Soo Choo their regular centerfielder is a good idea, considering that he's played the position exactly once since 2006. And then you can come here and find out what Breyer thinks about plain error, or how Teague v. Lane prevents non-citizen defendants who weren't properly advised of the immigration consequences of their plea and whose convictions have become final from making ineffective assistance claims under Padilla v. Kentucky.
Frankly, I find the Choo question more interesting; I'm not sure of his fielding ability, but the guy can swing the stick; his OPS+ is about the same as Josh Hamilton's over the past two years. But reading legal cases and explaining them is what you guys pay me the big bucks to do, so let's get to it.
You're driving along in the right-hand lane, approaching an intersection where you want to make a left-hand turn. Being the good driver you are, you put your turn signal on, move into the left lane, and complete the turn. So you're non-plussed when you see a police cruiser make the turn behind you. The officer puts on the lights and siren, and you immediately pull over. You roll down the window and ask him what the problem is, and he tells you that the local ordinances require you to put your turn signal on one hundred feet before turning, and you put it on only seventy-five feet in advance, at best.
Now, here's the good news. If you're white and live in at least a middle class suburb, pinch yourself, because that was just a dream.
I'd like to think that this blog is the go-to place for fashion tips for those of the criminal persuasion. A few years back I warned of the perils of wearing sagging pants while trying to perpetrate a bank robbery or multiple homicide. The dangers posed by facial tattoos -- such as when the witnesses claim that someone name "Dooney" committed the crime, and your contention that it's your cousin they're talking about is met with skepticism because you've got "Dooney" tattooed on your neck -- have also been mentioned on several occasions. Well, here's today's helpful advice: while skinny jeans may be all the rage among fashionistas, they're not the best sartorial choice for hiding the fact that you're carrying a gun in your pants.
As I mentioned on Friday, in four days last week SCOTUS almost doubled its output of the last four months. We talked about the two 4th Amendment decisions, Florida v. Harris (drug-sniffing dog) and Bailey v. US (detention for search warrant) last Thursday and Friday, and concluded that the pro-government decision (Harris) could've been worse, and the pro-defendant decision (Bailey) could've been better. At least, I did; your mileage may vary. Of the seven other decisions handed down, four were criminal: Evans v. Michigan dealt with the Double Jeopardy Clause, Johnson v. Williams was another go at the deference to state decisions in federal habeas claims, Henderson v. US concerned the question of "plain error," and in Chaidez v. US, the Court held that Padilla v. Kentucky, which required that attorneys inform their clients of the deportation risks of guilty pleas, does not apply retroactively. I'll have a fuller description of those cases on Thursday, by which time I will presumably have read them and have some better idea of what I'm talking about. This week, the Court holds oral argument in Maryland v. King, concerning whether the state can require arrestees to submit to DNA testing for purposes of keeping the resulting profile in the national database, so we might discuss that, too.
The Ohio Supreme Court didn't hand down any decisions, but it did grant review in a bunch of new cases, including five criminal ones. Among the issues presented are whether the soliciting statute is overbroad, which we'll discuss below, and whether capital defendants have the right to effective assistance of the mitigation expert. And there's one on HB 86. The new law raised the threshold for theft offenses from $500 to $1,000, and there's no question that a defendant who steals, say, $600 before the effective date of the new statute, but is sentenced after it, is entitled to be sentenced as for a misdemeanor. But is he also entitled to have the offense classified as a misdemeanor? The districts are split on the issue, with the 8th holding he's not and the 2nd and 9th holding that he is. The court will sort it out.
In the courts of appeals...
Big week at the Supreme Court; after not handing down a decision in a month, the Court comes down with nine opinions in a holiday-shortened week, almost doubling its total for the year. No fewer than six had some criminal implications, including one on double jeopardy and one on whether the decision in Padilla v. Kentucky, about an attorney's obligation to advise a non-citizen client on the immigration consequences of a guilty plea, could be applied retroactively. Yesterday, we discussed the Court's decision in Florida v. Harris regarding drug-sniffing dogs, so we'll keep with the 4th Amendment theme. Today, we'll talk about Bailey v. U.S., which answers a question I'm sure has crossed your mind repeatedly: "If I get wind the cops are coming to search my house and I decide to skedaddle, how far do I have get before they can't stop me just based on the warrant?"
When I reviewed the oral argument last November in Florida v. Harris, I wasn't too sanguine about the prospects of the Court's affirming the Florida Supreme Court's decision establishing a lengthy checklist of items which had to be considered in determining whether a drug dog was sufficiently reliable so that his alert could provide probable cause for a search. That skepticism was borne out on Tuesday, when the Court unanimously reversed. There may be a nugget or two for defense attorneys confronted with a search prompted by a dog alert, but you have to do some digging to find them.
There are a number of homeless shelters in Cleveland. There's a big one on Lakeside, there's St. Herman's, there's the City Mission, there's the Cleveland Public Library... The latter isn't designated as one, but as the victim in State v. Beckwith was advised when she was hired there, "people come up here because some of them crazy, some of them creepy." Beckwith, she believed, fell in the latter category: he'd follow her around as she shelved books, making grunting noises every time she walked by. Beckwith was charged with menacing by stalking, convicted after a bench trial, and sentenced to seventeen months in prison, one shy of the maximum. That becomes one of the two reversals last week. The 8th reversed a menacing by stalking conviction six months ago in State v. Hersh, finding that the victim's seeing the defendant in a grocery store for a couple of minutes wasn't sufficient, and the same fate befalls the prosecution in Beckwith. There were actually only three specific incidents: his asking her to locate a specific book for him, asking her to download a song onto his cellphone, and her believing that he was recording her on his cellphone as she walked through the library. Given the limited nature of Beckwith's conduct, plus the fact that a coworker testified that she never saw Beckwith following victim around, and that the victim's supervisor testified he only observed Beckwith in vicinity of victim on two occasions, neither of which involved any interaction between the two. One is left to wonder how the judge convicted anyone of a crime for this, let alone sentenced them to seventeen months in prison.
No, you're not seeing double. Yes, I just did a case update yesterday. Actually, I did it last week, but screwed up on the posting, so you get another one.
And just like last week, there's nothing to report out of SCOTUS or the Ohio Supreme Court, unless you count a couple disciplinary decisions from the latter. (This week's helpful tip for lawyers: don't show up for a bankruptcy hearing drunk. Especially more than once. You're welcome.) There are some oral arguments in D.C. this week, nothing earthshaking; the most interesting is one on how or whether the Privileges and Immunities Clause affects a state's ability to keep governmental information private. (Hey, I said most interesting. And if you are interested, here's a discussion of the upcoming oral argument.) The Columbus Seven kick off their next round or arguments next week, so we'll save any more of that for then.
In the courts of appeals...
This should've been posted last week, but wasn't. You get two Case Updates this week; the other one will be tomorrow.
No decisions from SCOTUS -- in fact, the last one was three weeks ago -- and oral arguments don't resume until next Tuesday. No criminal cases on tap for then; it's not until the following week that the Court takes on a couple of habeas cases, as well as Maryland v. King, testing whether requiring DNA samples from everyone arrested, not just convicted, violates the 4th Amendment. The Court will be having a conference this Friday, and another the following Friday, to winnow out cert applications, and there are several cases it might accept which would give me something to write about, although that's probably not a factor that plays much of a role in the Court's decision-making. We'll talk about it more, if at all, after the conference.
The Ohio Supreme had its conference last week, and accepted six cases, five of them criminal. (And the "civil" one was with regard to imposition of costs by municipal courts in traffic cases.) The most interesting is State v. Anderson, which raises the question of whether a trial court's denial of a motion to dismiss for double jeopardy is a final appealable order. The court held that it wasn't twenty-three years ago in State v. Crago; the denial can't be appealed until after the second trial. That doesn't make much sense, and defendants have largely avoided it by going into Federal court on a habeas claim and arguing the issue. It certainly doesn't make any sense in Anderson's case: he's facing his sixth trial, the previous five having resulted in a mistrial because of improper evidence coming out, a reversal because the same evidence was admitted in the second trial, two hung juries, and another reversal, this one because one of Anderson's lawyers fell asleep during voir dire. Unfortunately, Anderson is not likely to resolve the issue. The case comes up on the 7th District's denial of the State's motion to dismiss the appeal, and that's not likely to be viewed as a final order.
In the courts of appeals...
Now that I think about it, if I'd gotten a better grade in that Anti-Trust course in law school -- which I should have -- my life would've turned out way differently. I would've gotten into that silk-tie law firm, I'd have a nice house in one of the tonier suburbs, I'd be driving a Lexus...
Something like that appears to be the theory of Megan Thode, who's filed a $1.3 million lawsuit against Lehigh University over a C+ grade which she claims prevented her from becoming a professional counselor. It's a little more complicated than that, as it always is: Thode claims that she was given a zero in class participation, which dropped her a full letter grade, because the teacher was upset with Thode's championing of gay marriage, while the teacher contends it was because Thode showed "unprofessional behavior" in the classroom, including crying and swearing outbursts. (That's probably what hurt me in Anti-Trust, now that I think about it.) The lawsuit generated the usual Clucking of Tongues, especially when the judge denied the University's motion to dismiss it. (As one of my friends put it, "If a C+ is worth $1.3 million, my grades should be worth eight figures.") Fortunately, sanity was restored when the judge listened to the evidence and ruled for the University.
I got an email from a young lawyer down in Southern Ohio the other day, asking me if I'd take a look at a brief she'd written on a suppression motion. It was about ten pages long, written with the fervor that only a young criminal lawyer can bring to something like that. You have to be a little careful with motions to suppress; sometimes, if you say too much, you're just telling the cops what they need to lie about. But this was pretty straight forward. There weren't any real Most of it was caught on the cops' video-cam, and there really weren't any factual disputes. And the search was way, way over the top. The best part was when the cops finally got Rover, the Drug-Sniffing Dog, to the scene, and had him walk around the car. He didn't alert, so what did they do? The opened the car doors and let him sniff around inside. I've often written that the Cleveland cops have about as much understanding of the rudiments of the Fourth Amendment as they do of the intricate details of Hammurabi's Code, but these guys make the Cleveland cops look like James Madison.
There was one substantive issue, a minor one, that she'd missed, and I also suggested some stylistic changes. A couple of days later, I got a sweet letter from her, thanking me profusely, and telling me that she hoped this "incredibly conservative judge will do the right thing."
Actually, that's a bit easier than it might sound.
I got a call yesterday afternoon from my buddy John Martin, head of the county PD's appellate division. "I lost a case last week."
"Well, that's the dog-bites-man story for the day," I commiserated.
"No, seriously, I think you got it wrong in your write-up of it."
Intrigued at the unseemly prospect of being mistaken, an unprecedented event, I heard him out. The case was State v. Bohanon, where the defendant had argued on appeal that her lawyer was ineffective for not raising a speedy trial issue. That didn't even make the cut for my 8th District summaries; I blew it off with a sentence in the Case Update: "Too bad, says the 8th District; Bohannon pled guilty, and a plea of guilty waives most IAC claims, including the right to challenge a conviction on speedy-trial grounds on appeal."
The 8th District seems to have wrestled its way to a conclusion on consecutive sentencing. Our dog bites man story this week is that the State loses another search case. Nothing extraordinary about that, except this one involved a warrant, and for the State to lose a search case with a warrant is no mean feat. The law on allied offenses gets a workout, and the court takes another look at State v. Brunning after a remand from the Supreme Court. Finally, a civil wrong is righted.
You've got the deal pretty much worked out, and while your client has resigned himself to a plea -- and you got him a good one -- he understandably wants to know what kind of time he's looking at. So you and the prosecutor troop into the judge's chambers to get his feelings about that. The two of you lay out all the pertinent facts, and your client's record. If the judge has a policy against discussing sentencing, you won't have gotten this far, but most judges will get involved in some point in the plea bargaining process. They may give you at least something vague -- "I'm looking at a midrange sentence," "Your client's a good candidate for probation" -- and sometimes they'll even tell you the specific sentence they'd impose on a plea.
On one level, that's the way it should work. The criminal justice system is basically a marketplace for prison sentences. Twenty-four out of twenty-five criminal cases will be resolved by a plea. The predominant, and often the sole, determinant factor in that bargain will be the sentence -- does the defendant go to prison, and if so, for how long. Under Ohio law, a judge exercises a huge amount of discretion in sentencing. Child porn sentences in this county run anywhere from probation to twenty-plus years. A plea bargain is a contract, and a contract is most likely to be fair if all the parties have access to all relevant information. How much time your client is going to get is the most relevant piece of information you can give him.
The bailiff's call came right before noon. "Get over here this afternoon with a check for $75, and you'll get a case." The judge was in a tight race for re-election, and he was pulling out all the stops. Normally, the 34 judges here in the common pleas court take a two-week rotation on the arraignment bench; this judge had swapped with others, with the result that he'd spent half of the past four months handling arraignments. Why? Because the arraigning judge is the one who hands out assignments for criminal cases, and lawyers were willing to contribute money to his campaign in return for those assignments.
That was twenty-five years ago. I didn't go over and give him a check, I didn't get any assignments, and the judge lost the election. That's not because my heart is pure. Go to any judge's fundraiser come campaign time, and you'll see that about three-quarters of the people in attendance are criminal defense lawyers. I'm likely to be one of them.
The first thing defense counsel could have said during the oral argument before the Supreme Court yesterday in In re M.M. was, "There's no reason for me to be here." In terms of representing his client, that would have been true. M.M. had gone to trial in juvenile court on charges of sexually abusing four children. The trial judge decided statements made by the victims to relatives and a social worker weren't admissible under EvidR 807 and 803(4), and granted a motion in limine excluding them. The criminal and juvenile rules give the State the right to an interlocutory appeal of a ruling suppressing or excluding evidence, but instead the State chose to see how far they could get with the child witnesses, and maybe get the judge to change her mind on admitting the evidence. No luck; the judge stuck with her decision to exclude the evidence, and when the kids couldn't testify as to who did what or when, she tossed the case at the close of the State's evidence.
At which point the State went with Plan B, which was to appeal it anyway, under R.C. 2945.67. That statute grants the State the right appeal a decision suppressing evidence (it's the statutory counterpart to the rule), but also gives the State the ability to seek leave to appeal any other decision of the trial court in a criminal case except the final verdict. The 8th District denied leave, finding that the State should have gone the interlocutory appeal route. The case landed in the Supreme Court, and both sides showed up to argue it. Only one, the prosecutor, had any skin in the game; M.M. had been acquitted, and regardless of what any court did, that wasn't going to change.
The court gets back to grinding out decisions, and it's not a happy lot; three of them involve child molestation cases. Defendants win in two cases, one a redo of a decision last November. And in State v. Douse the defendant teaches us the benefits of delayed gratification: unlike so many other defendants whose post-release control was screwed up, Douse waits until he's out of prison to raise the issue. The State argues that the issue is res judicata because Douse could have raised it in an appeal, but that's not the way it works. Under the Supreme Court's decision in State v. Fischer, if PRC isn't properly imposed, that part of the sentence is void, and can be raised at any time; res judicata doesn't apply. Most times, the pro se motions to "vacate a void sentence" result only in the defendant being hailed back before the judge to have PRC done the way it's supposed to be. Not for Douse; Bezak holds that you can't impose PRC on somebody after he's served his prison, so Douse avoids having the APA breathing down his neck for the next five years.
The only thing new from DC was the filing of various amicus briefs in the gay marriage cases. The Court might hand down some decisions in the next week or so, but the next conference, where the justices will decide what cert grants to issue, doesn't come until next Friday. There are any number of petitions awaiting decision, some seemingly trivial; one asks "whether the Driver's Privacy Protection Act interferes with such quintessentially local government functions as a municipality's decision concerning how much information to include on a parking ticket," another "what constitutes 'changing clothes' within the meaning of Section 203(o) of the Fair Labor Standards Act." But there are some key cases, too: one on whether a defendant can be impeached by statements given during a court-ordered mental evaluation, another on what evidence last year's decision in Lafler v. Cooper is required to show that a defendant would have taken a plea but for his counsel's ineffective assistance in advising him to go to trial, and another on whether a defendant who decides to proceed pro se can revoke that and ask for reappointment of counsel at trial.
SCOTUS doesn't have any oral arguments scheduled for another two weeks, but the Ohio Supreme Court cranks it up again with arguments in nine cases. Four of them are criminal, and one "semi-criminal," concerning Ohio's wrongful imprisonment statute. Two are of special note. One is State v. Athon, which offers the Supreme Court the first opportunity to take a look at the new open discovery rules for criminal procedure. Instead of requesting discovery under Rule 16, Athon had simply obtained the police reports through a public records request, then refused to provide discovery to the State. I did a post on the new discovery rules a few weeks back, and I'll be interested in seeing how this plays out. As I wrote then, the real philosophy behind the rules was to put an end to playing games with discovery, and making the process more open. I'm having a hard time seeing how this squares with that objective. The other is In re M.M., an appeal out of the 8th District on whether the state can request leave to appeal an evidentiary ruling after a defendant is acquitted. The Supreme Court upheld this in a 1990 decision, State v. Bistricky, but that's going to need another look. I'll have more on the case on Wednesday.
In the courts of appeals...
From the Department of Silly Walks. That's Antonin Scalia, no less, sporting the chapeau that allowed him to win the Grand Prize for Goofiest Hat at the Edgerton, MN, county fair last summer. Actually, it's the headgear he chose to wear at the presidential inauguration last week. The hat was a replica of that worn in the famous portrait of Thomas More, who served as Chancellor of England and was condemned to death for refusing to recognize King Henry VIII's divorce from Catherine of Aragon. More's last words were, "I am the king's good servant, but God's first," and Scalia's choice of this particular headgear led to all manner of speculation as to whether he was making a political statement rather than a fashion one. As one scribe put it,
Wearing the cap of a statesman who defended liberty of church and integrity of Christian conscience to the inauguration of a president whose policies have imperiled both: Make of it what you will.
Well, yeah, but then again, maybe sometimes a goofy hat is just a goofy hat.
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