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April 2013 Archives

What's Up in the 8th

Sometimes in doing appellate work you have to stretch for an argument, while trying mightily to stay just this side of the Giggle Test -- being able to present the argument without dissolving into gales of laughter.  So it was last week; it appears that Robert Browning's exhortation that "a man's grasp should exceed his reach" was the driving force behind several appellate arguments presented in the batch of 8th District decisions.  

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The right to remain silent

Bob is arrested for a murder, given his Miranda rights, and says he wants an attorney.  Ten months later, at his trial, he says he acted in self-defense.  The prosecutor gets up and asks him why he didn't tell that to the police when he had the chance.  Bob is convicted.

John is suspected of murder, and the police ask him to come to the station.  He does so voluntarily, and answers the officers' questions.  Ten months later, at his trial, he testifies he acted in self-defense.  The prosecutor gets up and asks him why he didn't tell that to the police when he had the chance.  John is convicted.

Bob's case gets reversed; the Supreme Court has held that it's not fair to tell man he has the right to remain silent, and then use that silence against him.  Whether John's case -- actually Genovevo Salinas's case -- gets reversed is going to be decided by the Supreme Court in the next couple months.

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Another look at Schmerber

Missouri v. McNeely presented a simple issue:  can the cops, without a warrant, order hospital personnel to draw the defendant's blood for use in a potential drunk driving prosecution?  Here's a tip:  when the announcement of the Court's decision begins,

SOTOMAYOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, II-B, and IV, in which SCALIA, KENNEDY, GINSBURG, and KAGAN, JJ., joined, and an opinion with respect to Parts II-C and III, in which SCALIA, GINSBURG, and KAGAN, JJ., joined. KENNEDY, J., filed an opinion concurring in part. ROBERTS, C. J., filed an opinion concurring in part and dissenting in part, in which BREYER and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion

you know that the answer isn't nearly as simple as the question.  Of course, you guys pay me the big bucks to parse through all this, so let's take a look at the Court's decision last week.

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The road not taken

Men will be boys.  A long time ago, I handled a tradename infringement case, for the first (and last) time.  No biggie; a couple of bars, on the opposite side of town, which had similar names.  I didn't find anything about it especially interesting, and even if I had been at a point in my career where I could specialize in a particular field, that wouldn't have been it.

Which is too bad, because if I'd decided to pursue that, I might have wound up with a customer like Bikinis Sports Bar & Grill, trying to fend off Hooters in its claim to be "America's ONLY Breastaurant."

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What's Up in the 8th

I've often chided the Cleveland police for their failure to grasp even the rudiments of the law on search and seizure, but apparently we can add Shaker Heights to the list of police departments where the 4th Amendment is no more than a distant rumor.  After determining that Adrian Maddox was the person who'd broken into a convenience store three days earlier, the police went to his apartment to arrest him.  When asked in the suppression hearing why they hadn't gotten a warrant, the detective replied, "That's not how we do things."

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Case Update

Finally, some decisions from SCOTUS.  The one engendering most of the discussion among the Talking Heads (or Writing Heads) is Kiobel v. Royal Dutch Petroleum, in which the Court unanimously held that the Alien Tort Statute did not permit a lawsuit based on conduct occurring wholly within a foreign nation.  (The plaintiffs, Nigerians who had moved to the US, sued several foreign companies for their alleged participation in Nigeria's violations of international law.)  I'm guessing that filing lawsuits along those lines isn't high up on your to-do list, so we'll focus instead on Missouri v. McNeely, another decision from last week concerning the 4th Amendment and blood draws in DUI cases.  We'll talk about that on Friday.

The Court's holding oral argument on Monday, Tuesday, and Wednesday of this week, the last ones of the term, and will probably also release opinions in several cases.  The only criminal case up for argument this week involves a habeas issue regarding Michigan's abolition of its "diminished capacity" defense, but last week the Court heard a case involving use of a defendant's pre-arrest silence, so we'll take a look at that one on Thursday.  You can fashion your week's schedule accordingly.

If you didn't already know that the bank sends a notice to Disciplinary Counsel in Columbus anytime you bounce a check to your IOLTA account, or that you shouldn't practice law if your license to do so has been suspended, you'll want to check out the Ohio Supreme Court's decisions in Disciplinary Counsel v. DeGidio and Disciplinary Counsel v. Fletcher, respectively.  A more worthwhile read comes in In Re M.M., a juvenile case where the State had argued that certain victim statements were admissible under EvidR 807, but the trial court had granted a defense motion in limine excluding them.  Instead of appealing that ruling immediately, the State proceeded with trial, and when the judge acquitted the juvenile, the State sought leave to appeal.  As I explained when I discussed the oral argument, this basically results in the appellate court issuing an advisory opinion:  the defendant, having been acquitted, has no reason to show up for the appeal.  There's a Supreme Court decision, State v. Bistricky, which seems to allow this, and there was some hope that the court would use M.M. as an occasion to overrule Bistricky.

The court didn't.  The case revolves around RC 2945.67(A), which grants the state the right to appeal certain decisions, and permits it to seek leave to appeal "any other decision, except the final verdict, of the trial court."  The language in Bistricky was broad - it held that the state could seek leave to appeal "evidentiary rulings and rulings on substantive issues of law" - but M.M. narrows that substantially:  the court finds that if the State had the right to appeal, such as from decisions suppressing evidence, it had to do so immediately, and couldn't fall back on the statute's allowance of a leave to appeal after trial.

Some interesting decisions from the courts of appeals...

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Closing the deal

For somebody who's supposed to be a smart lawyer, I can be really dumb at times.

So I've got a client we'll call Brian, and he's got a case from the file drawer labeled Drug Deal Gone Bad.  The prosecutor concurs:  the alleged victim was trying to sell some weed.  His story is that for his troubles, my guy clubbed him with a gun and the gun went off, leaving Dealer Boy with a bullet wound to the head.  Not a bad one, as those things go, but then there aren't a whole lot of good bullet wounds to the head, you'd figure.  (Timeout here:  what's with robbing a marijuana dealer?  Isn't that like shoplifting at the Dollar Store?)

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Ignoring a mandate

The one indisputable thing I learned watching the oral argument before the Supreme Court in State v. Dzelajlija was that only the defense counsel had mastered the pronunciation of the defendant's name.  After Chief Justice O'Connor announced the case and, in doing so, pronounced Dzelajlija's name as if it were the third line on an eye chart, the prosecutor hastily proclaimed that he would use only "defendant" as a reference point.  The defense attorney, in his presentation, was perfectly willing to sail into uncharted waters, smoothly dropping Dzelajlija's name where appropriate, as easily as if it had been Smith or Jones.  (Ju-LYE-ja.) 

Unfortunately, that's about the only thing that went well for the defense.

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What's Up in the 8th

One of the nice things about doing this blog is that I learn a lot of stuff.  Just this week, for example, I learned something I didn't know about inventory searches, what pretrial motion rulings a guilty plea will waive, and which ones it won't, and that I probably want to stay away from something called Four Loko.

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Case Update

SCOTUS swings back into action this week, with opinions on Tuesday and possibly Wednesday as well.m and oral arguments in two criminal cases.   Today, in US v. Davila, the Court will consider whether a magistrate's participation in plea bargaining mandates reversal of a conviction.  The participation was notably unsubtle:  when Davila complained that his lawyer had done nothing other than advise him to plead guilty, the magistrate held an ex parte hearing with just Davila and his attorney, advising the former that "oftentimes the best advice a lawyer can give is to plead guilty," and that Davila should "come to the cross" to get the reduction for acceptance of responsibility.  Reversal is likely, because the 5th Circuit applied a per se rule without considering the harmlessness of the error (Davila didn't plead guilty until three months later, and when he tried to withdraw his plea at sentencing, he made no mention of the magistrate's admonitions), and the case is of limited applicability:  it's not a constitutional right at issue, but the Federal rule which prohibits a court's involvement in plea bargaining, a rule which many states (including Ohio) do not have.  Still, the opinion might provide some guidance on the issue.   Whether the scheduling of the case for April 15 was intended irony, given that Davila's conviction was for tax fraud, remains unknown.

Salinas v. Texas, due for argument on Wednesday, is of much greater import.  We know that the state cannot use a defendant's post-Miranda silence as substantive evidence of guilt.  One question never addressed by the Supreme Court is whether the Self-Incrimination Clause prohibits the state from using the defendant's silence before he's in custody and given his Miranda warnings.  I'll have more on that after the oral argument.

Down in Columbus, an oral argument last week on an expungement case, and I'll talk about that later in the week, too.  No opinions, and oral arguments don't pick up again until next week, and even then there's only one criminal case of the seven cases scheduled for argument.  So let's head over to the courts of appeals and see if anything significant bubbled to the surface there.  Not much, since surprisingly the 2nd District didn't hand down any decisions...

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Briefing blues

No post today.  No decisions of note -- or, for that matter, not of note -- in the past week from SCOTUS or OSC, and I've got a brief staring me in the face which requires me to wade through 650 pages of trial transcript.  I've gotten two-thirds of the way through it, and it appears to have been what we call in the trade a "slow-motion guilty plea."  Key phrase in the transcript so far:  the defendant's statement during discussion of the proposed plea, "So y'all don't want to take the rape off?"  No, they didn't, and <spoiler alert> it turns out that wasn't a bad decision on their part.

I'll be back on Monday to tell you that there were no decisions of note in the past week from SCOTUS or OSC, but we'll have other stuff to talk about.  See you then.

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Advice to a young lawyer

I got an email a couple weeks back from a young woman who had just come back to the Cleveland area and was getting back into the practice after taking care of the kids.  She'd wanted to get into the criminal practice, and she wondered if CCDLA -- the Cuyahoga County Defense Lawyers Association -- had a mentoring program.

We sorta do and sorta don't -- more on that in a few weeks -- but it got me to thinking what I would try to teach my mentee if I had one.  Sounds better than writing one of the briefs that are staring me in the face, so here are some of the things I've picked up along the way.

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The (non)retroactivity of Padilla

Roselva Chaidez's lawyer had a good idea.  Roselva was born in Mexico, but became a lawful permanent resident of the United States in 1977.  Twenty years later, she played a small role in defrauding an auto insurance company of $26,000, for which she was paid $2,000.  She pled guilty to two counts of mail fraud, and was given four years of probation.  That became final in 2004.

Five years later, the Immigration and Naturalization Service came a'knockin', because the two counts of mail fraud are "aggravated felonies" under immigration law, and require her removal from the country.  But Roselva's attorney in the criminal case had never told her of this.  So Roselva's new lawyer filed a writ, claiming that her old attorney had rendered ineffective assistance by failing to warn her of the immigration consequences.  That seemed like a really good idea when the Supreme Court handed down Padilla v. Kentucky, holding that Padilla's attorney had rendered ineffective assistance by failing to advise him that his conviction for marijuana trafficking would get him deported.  The judge in Roselva's case looked at Padilla, saw Roselva was making the same claim, and granted her relief.

The 7th Circuit reversed that, and six weeks ago, the Supreme Court affirmed, deciding that Roselva's and Padilla's claims were just too good.  

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What's Up in the 8th

The prosecutor gets up at the sentencing hearing and derides the defendant, claiming that he "tells stories" and won't accept responsibility for his actions.  Did I say "prosecutor"?   No, it was the defense attorney who did that, and that forms the primary basis of the ineffective assistance of counsel claim in State v. Weems.  (The other basis was the failure to use a prior inconsistent statement of the victim, but all the record shows is that when the lawyer tried to cross-examine the victim with it, the State objected, an off-the-record sidebar ensued, and the subject wasn't mentioned again.  Gotta preserve that record.) 

The defense attorney was apparently cheesed off because he had presented a theory to the jury that Weems was in his home at the time he supposed assaulted a woman, only to have Weems take the stand and testify that he was in Akron at the time.  The attorney-client relationship seems to have gone into full melt-down somewhere along the way, with the lawyer telling the judge at sentencing that he expected Weems to file a bar grievance against him.  This prompted the concurring opinion to comment that counsel's statements at sentencing "did not serve any mitigating purpose," and "appeared intended to circumvent any subsequent actions filed against him."  "Self-preserving statements during a client's sentencing are not appropriate."

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Case Update

No decisions from SCOTUS, the pundits still pre-occupied with dissecting the oral arguments in the gay marriage cases a couple of weeks back.  Perhaps the best measure of the interest in those cases was the amicus briefs:  over a hundred were filed, some in both print and video format.  In fact, we seem to be coming to the Warholian point where everybody is not only famous for fifteen minutes, but files an amicus brief with the Supreme Court as well.  The haul included not only the usual suspects, like the California Council of Churches and the Lamda Legal Defense and Education Fund; Gary J. Gates filed one, and Jonathan Wallace, Meri Wallace, and Duncan Pflaster cooperated to produce their own.

Although the quantity was unusual, it's fairly common for amicus briefs to be filed, reflecting the importance of the Supreme Court as an institution which establishes policy.  But in order for the court to establish policy, it has to first agree to hear the case, and for that reason there's a lot more amicus activity in the cert stage than there used to be.  Adam Chandler has a nice article over on SCOTUSblog  about some of the big movers and shakers in this area, noting that in the past five years the number of cert-stage amicus briefs has increased by 35%.  In the last three years, nearly 1750 organizations filed amicus briefs urging the Court to accept (or not accept) a case.   The busiest were the Chamber of Commerce (54 briefs) and the National Association of Criminal Defense Lawyers (41).

The Court does resume oral arguments next week and the week after, which will be the last oral arguments of the term.  On tap are several criminal cases, including one on a judge's participation in plea bargaining, one on whether the Self-Incrimination Clause protects a defendant's refusal to answer questions before he has been arrested or read his Miranda rights, and another on the retroactive application of Michigan's abolition of the diminished capacity defense.  Later this week I'll have the long-promised post on the Court's decision in Chaidez v. US, on whether Padilla v. Kentucky applies retroactively.

The Ohio Supreme Court has oral arguments this week, and another spate of them two weeks after that.  Only two criminal cases are up, both out of the 9th District.  One concerns the interplay between a pardon and sealing of a criminal conviction, the other whether  a trial court could take judicial notice that a "lite beer" is a "beer" within the meaning of the statute prohibiting selling liquor to minors.  I'm thinking that you could come up with a pretty good drinking game for watching the oral argument in the latter one.

In the courts of appeals...

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Problems, problems...

I'm having some serious computer and web-related issues. I'll be back on Monday.

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What's Up in the 8th

Imagination, and even a minimal logical process, eluded Larry Ellis.  The police arrived in response to the latest domestic disturbance call, and they asked Larry why his live-in girlfriend's eye was swollen.  What to say, what to say?  You could come up with something long and involved, but that's kind of hard to do on the spur of the moment, and nothing in the 8th's opinion in State v. Ellis leads you to believe that Larry's a long and involved kind of guy anyway.  But all you really have to do is come up with a brief explanation of how some other mechanism might have caused the injury.  You can go even go with the old standby "she walked into a door."  Hey, it's worked for other guys.

So what's the best Larry can do?  The sad tale is conveyed by one of the police officers:  "When asked how she got the black eye, Ellis said she must have punched herself in the face."


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Case Update

Everybody's still picking at the goat entrails, trying to decide how the Supreme Court's going to come down in the gay marriage cases, and given that the Court won't have oral arguments for another two weeks, bet on me being able to open the Case Update with that line for the next fortnight.  There aren't many big decisions coming up that might interrupt that train of collective thought; the only big criminal one I can recall is Alleyne v. US, which involves a Blakely issue.  I'll go read up on that right now so that I'll be ready to go when the Court issues its opinion.  Sure I will.

A good part of my life has been devoted to testing the hypothesis that if you ignore a problem long enough, it will go away.  The results to date are decidedly mixed: sometimes they do, but when they don't, the consequences can be disastrous.  One of the things that's become harder to ignore is a disciplinary complaint.  I've never had the occasion to test my hypothesis on this one, but apparently something's been added to the rules which allows the court to issue an interim default suspension if the attorney doesn't respond to the complaint.  I say "apparently" because this is the first time I've seen this happen; it happened to three attorneys last week.  That, and deciding which cases to hear (a few) and which cases not hear (many, many) comprised last week's output by the Ohio Supreme Court.

Rough week, huh?  Let's see if there's anything of significance in the courts of appeals...

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