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March 2013 Archives

Friday Roundup

There's gratitude for you.  So you've got a client who was convicted of rape, along with four counts of unlawful sexual conduct with a minor, and got sentenced to 25 years in prison.  Then he caught a break:  the appellate court found the evidence insufficient for the sexual conduct charges and vacated them, and also reversed the rape conviction because of improper admission of other acts testimony, so the whole thing comes back.  You get appointed to represent him, and you work out a sweetheart of a deal:  the rape charge is reduced to one count of gross sexual imposition, a fourth degree felony, and since he's already done three years, he's released.

So what does the client do?  He files an appeal, claiming you rendered ineffective assistance of counsel.  

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Round 2 on drug-sniffing dogs

Lost in the hullabaloo over the argument in the gay marriage cases this week was the fact that the Court issued an opinion in Florida v. JardinesThis was the "other" dog-sniffing case; a month ago, the Court in Florida v. Harris rejected the idea that the state was compelled to produce a wide variety of records in every case to substantiate a drug-sniffing dog's qualifications and credentials.  (Opinion discussed here.)  The result in Jardines was more favorable to the defense, and provides some movement toward what I think is emerging as the real issue here.

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The same-sex marriage cases

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It's Gay Marriage Week at the Supreme Court, with the Court hearing two hours of oral arguments yesterday and today in each of the two cases which present the issue.  I normally do criminal stuff here, but as I mentioned on Monday, these cases present the possibility of one of those watershed rulings by the Court, which will have a profound effect on the future of the country.  I promised a thumbnail sketch of the cases, the arguments, and the possible outcomes today, so that's what we'll do.

We'll start with Hollingsworth v. Perry, which was argued yesterday.  Here's the skinny:

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What's Up in the 8th

No 8th District summary last week, due to my bout with the scalpel.  Shows the importance of good health insurance, which mine, sadly, is not; my only in-network provider was Rob's Tire Store and Medical Center in Lodi.  They did an adequate job of it, fortunately, although it was somewhat disconcerting to have the nurse shout out "dead man walking!" as she escorted me to pre-op. 

We'll put that in the rearview, because we've got two weeks of decisions to wade through.  As usual, the court provides helpful advice to defendants, judges, and defense lawyers.

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Case Update

The Supreme Court takes on oral argument in two of the same-sex marriage cases this week.  On tap for Tuesday is Perry v. Hollingsworth, which concerns Proposition 8, the California referendum which narrowly reversed that state's supreme court decision declaring unconstitutional the state's ban on the practice.  Coming up on Wednesday is U.S. v. Windsor, which concerns the section of DOMA (the Defense of Marriage Act) which prohibits receipt of any Federal benefits to other than heterosexual married couples.  Both cases are scheduled for two hours of argument, twice the normal time.

It's hard to overstate the sea change that this issue has undergone.  Three presidential elections ago, George Bush's re-election was at least partially due to the conservatives in thirteen states who turned out to vote for amendments to their state's constitutions banning gay marriage.  At that time, the public felt that gay marriage should be illegal, by a 58 to 36 percent margin.  In eight years, that picture has turned upside down:  a Washington Post/ABC News poll last week showed gay marriage now being support 58-36.  The turnaround on the issue in the Republican party - hardly any Republican figure of consequence criticized Ohio GOP Sen. Rob Portman's reversal of his position, and even conservative figures were relatively muted - is driven by demographics; while a majority of those over 65 still oppose gay marriage, among those between 18 and 29, support is overwhelming, hitting 81% in the poll.

Regardless of your feelings on the issue, we're approaching one of those decisions the Supreme Court makes a couple of times in a generation, decisions that dramatically alter or define who we are.  Most of the people who read this read it for the criminal law analysis, but if you're interested in a quick-and-dirty rundown of what the issues in Perry and Windsor are, I'll have something on that on Wednesday.

Down in Columbus, there was a Supreme Court decision on a criminal case, in State v. Darmond.  I wrote about the case when the 8th District ruled on it, and again about the oral argument before the Supreme Court.  The short version is that Darmond was prosecuted for receiving a shipment of drugs, and it came out during his trial that there were five other packages interdicted at the same time, all of the same size, coming from the same area, and containing similar packaging and handwriting.  The judge declared a mistrial and dismissed the case with prejudice, even though everybody agreed that the State's failure to disclose the information was inadvertent, and even though nobody had determined whether the evidence regarding the other five packages was exculpatory, or even relevant, to Darmond's case.

It was clear to me after watching the oral argument that a reversal was coming; the only question in my mind was how broad the court's ruling was going to be.  Pretty broad, it turns out:  the syllabus clearly states that a court confronted with a discovery violation should impose "the least severe sanction consistent with the purpose of the rules of discovery," and that applies regardless of whether the violation is committed by the State or the defense. 

Let's take a look at some of the more interesting/important decisions in the courts of appeals...

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Out sick

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I had some minor surgery this week, and unlike your aunt or mother-in-law, I'm not going to bore you with the details.  I offer it only as an explanation of why I haven't posted anything since Monday.  Seems that I grossly overestimated my recuperative powers.  That was due, in no small part, to the doctor's admonition that after a day of rest, I could resume normal activities.  That should have come with the addendum that the advice was true, so long as "normal activities" did not include any sort of physical movement.

At any rate, I should be good to go by next week, when I'll return to providing the snarky prose and spot-on legal analysis that my uncounted legions of readers count on.

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Case Update

The SCOTUSblog Stat Pack is out for the Court's 2012 term so far, providing a wealth of information, including this tidbit:  despite the picture of the Court as being sharply divided, exactly one of the 25 decisions it has rendered so far this year been decided by a 5-4 vote.  Seventeen have been unanimous, and 84% of the decisions have found two or fewer justices in dissent.  That may reflect selection bias more than a newfound ideological camaraderie; the Court has issued opinions in only one-third of the cases it's to decide this year, and one might expect that decisions would come quicker in the cases where there is no real dispute among the justices.  The last three terms have seen 20% of the cases decided by a 5-4 margin, and one might expect that to hold true this term as well.

The Court resumes oral arguments this week and next, with the same-sex marriage cases taking front and center next Tuesday and Wednesday.  No criminal cases on tap; in fact, there are only four more criminal cases scheduled to be argued before the Court's term ends in June, and only one of wide application (one concerns the Federal rules, and two others are habeas cases).  There are still a number of key cases left to be decided, though, so maybe I'll have something to write about before then.

Criminal cases (including habeas) represent only about a quarter of the Supreme Court's docket, but down in Columbus, five of the eight cases argued last week were criminal, including one on a Pelfrey issue, another on restitution, and a third on whether the trial judge's refusal to instruct on voluntary manslaughter was rendered harmless by the jury's acquittal of the straight murder count and conviction of felony murder.  I'll have more on that later in the week.

Let's take a look at what happened in the courts of appeals last week...

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Lafler revisited

Perry Mason.jpgYou just can't please some people.  Michael Marsh is one of those people.  Marsh was charged with what's known in the trade as "aggravated shoplifting":  after helping himself to some merchandise at Walmart, Marsh was accosted outside by an employee, whose discomfiture at making a dollar more than minimum wage was possibly assuaged by Walmart's giving him the lofty title of "asset protection associate."  Marsh did not go quietly into that good night, and the resultant scratch on the associate's hand earned Marsh an indictment for second degree felony robbery.

At the two pretrials in the case, and just before jury selection, the State offered Marsh a deal:  he'd plead to the indictment, and the State would recommend the minimum two year prison sentence.  Not exactly a magnanimous offer, but given Marsh's prior exposure to the criminal justice system -- two felonies involving drugs, a CCW, and a bevy of misdemeanor theft convictions -- and the fact that the present case was pretty much airtight, not bad, either.  All this was placed on the record, and before the jury was brought up, the judge pointedly suggested to the defense attorney that "you have some more discussion with your client."  They did, with the upshot that Marsh asked for another attorney.

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A snitch in time

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I was killing time over in court the other day, sitting around with a bunch of criminal defense attorneys, all of whom had been former prosecutors.  That's not an unusual career path; prosecutors get to try a lot of cases, and that's good experience for when you choose to move over to the Dark Side.  Anyway, the subject of snitches came up.  "Hey, Kev, you ever use a snitch?" one asked.

Kevin assumed a courtroom pose.  "Your honor, the State will call as its next witness the gentlemen in the orange jumpsuit."  Everybody laughed, and they all agreed that they'd never used a snitch.

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"Mandatory probation" revisited

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The clear intent of HB 86 -- that fewer people should go to prison for less time, and be allowed out earlier -- was partially manifested in the "mandatory probation" feature of RC 2929.13(B)(1).  If you were a judge and you were sentencing a defendant on a 4th or 5th degree felony, you couldn't send him to prison, except in certain circumstances.  A lot of trial judges grumbled about that, one even holding that the statute was unconstitutional because the legislative restriction on his sentencing discretion violated the separation of powers doctrine.  (Apparently, the judge hadn't felt similarly violated by the innumerable mandatory prison sentences peppered throughout the criminal code.)  Well, the legislature heard the complaints, because in one week a dramatically different version of "mandatory probation" will take effect.  You can find a copy of the new law here.  Here's what you need to know about it.

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What's Up in the 8th

So you want to be a municipal court judge, huh?  There are certainly some bennies:  the pay's not bad, a decent way north of 100 large annually, plus you don't have to pick up a bar tab for the next six years.  Then again, to get there you had to spend six months of evenings driving all over town and explaining to groups of ten or fifteen people why you'd make a good judge, or to fundraisers where you implore people to give you money, like some common mendicant.  And then you get elected, and the first week on the job, you get to do a bench trial of a speeding ticket, where the defendant gets up and announces that he is ""F. Hasan Bey, former Kenneth Torey Hasan, authorized representative of Kenneth Gary Hasan, not the person that was created by legislature," and objects when Officer Smith testifies, claiming that "Smith" is an English name, not an "American" name, and therefore, the officer has a "false identity."

That's as far as I got into the opinion in Cleveland v. Hasan, but I'm sure there's other good stuff there, certainly sufficient to convince that particular judge that the Cleveland Municipal Court having a mental health docket would be redundant.

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Case Update

Almost all of the attention at the Supreme Court was focused on the oral argument two weeks ago in Shelby County v. Holder, which will determine the continued constitutionality of the 1965 Voting Rights Act.  No oral arguments last week, and although Monday was designated "Opinion and Orders Day," only one was handed down, concerning a medical malpractice suit under the Federal Tort Claims Act.  Oral arguments begin anew next week, but no criminal cases are on tap; in fact, the next one, Salinas v. Texas, doesn't come until the middle of April.  The first two cases on gay marriage will be argued at the end of this month, which might be worth a post or two, simply because of the significance of the issue.

Down in Columbus, the only criminal decision was a non-decision.  When I'd written about the Supreme Court's acceptance of State v. Lindstrom, I'd said the case presented a "decidedly bizarre factual situation," which was probably an understatement.  Lindstrom's sister complained to the police in 2010 that, when he was between the ages of ten and fourteen, he'd repeatedly raped her.  Just six days shy of Lindstrom's 21st birthday, the State filed a complaint against him in juvenile court.  It later indicted Lindstrom, but Lindstrom moved the common pleas court to transfer the case back to the juvenile division, which it did.  The issue was whether Lindstrom had been "apprehended" by the issuance of the summons in the juvenile case, in which case the juvenile court would continue to have jurisdiction.  The 8th District decided he had been, and the State's contention that he hadn't been met with an incredulous response by the Supreme Court justices during oral argument.  Last week, the court decided that it been improvident in granting the appeal, and dismissed it, taking the unusual step of specifying that the appellate court decision was not to be cited as authority except between the parties.

In the courts of appeals...

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On vacation

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The Briefcase will be back on March 11.

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Peaks and valleys

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As is customary when it comes to their ex-girlfriends and the crime of burglary, most men subscribe to the Vampire Theory of Consent:  once permission to enter the premises has been extended by the owner, it means you can enter at any time until the permission is specifically revoked.  And maybe even then.  The aggravated burglary charge was overkill, but it was my sad duty to explain to Eric that if you climb in through somebody's bathroom window, the fact that you paid the cable bill two months earlier is not likely to impress a jury. 

As Kennedy said, it's a system of pleas.  Here's the calculus.  The prosecutor's a decent kid; some prosecutors don't see shades of gray, but he does.  Problem is that his supervisor, who calls the shots, won't come down off a felony two.  The judge is a former prosecutor I've had a lot of dealings with over the years, and I've got a high opinion of him, but I sense that while not all former prosecutors are hard on the stick at sentencing, he's one who will be.  The prosecutor and I go in to have a chat with him and lay it all out.  The judge doesn't like the facts and he doesn't like my client's record, which dates back to 1979, and he tells me that he'd be looking at a "mid-range" sentence on a plea.  On a two to eight, I figured that worked out to four or five.

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