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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.  

In State v. Jarrett, for example, the attorney was presented with the quandary of how to argue that the judge erred in giving Jarrett consecutive sentences.  The judge had made all the necessary findings required by the statute, and if anyone deserved consecutive sentences, Jarrett seemed an appropriate candidate:  having committed 16 prior felonies, he'd pled guilty to a 17th, then didn't show up for sentencing and committed seven more before he was apprehended.  The best the attorney could come up with was the claim that Jarrett's ill-gotten gains obtained from his latest spree, $22,590, was "not so great or unusual to justify consecutive sentences."  That meets with the reception you might anticipate.

A policeman in State v. Knox inadvertently prompts a reflection about law enforcement priorities, testifying that he can detect the odor of burning marijuana because he's made "thousands" of arrests for demon weed in the 14 years he's been on the force.  Really?  The crime situation in Cleveland has improved to the point that you have nothing better to do but go around arresting hundreds of people a year for smoking marijuana?  In any event, one of the things we learn from the case is the wisdom of smoking at home, rather than in one's ride:  under the city ordinances, possession of marijuana under 100 grams is a minor misdemeanor, and non-arrestable, but if you're caught with it in a car, it's a first degree misdemeanor and you can be arrested.  Knox contends that this is an equal protection violation, certainly a novel argument, but the panel decides that novelty is its sole redeeming feature.

The stretch in State v. Turner comes via a claim of ineffective assistance, in this case, that the trial attorney erred by electing to try the weapons under disability count to the bench, while allowing the jury to determine the aggravated robbery charge.  It's a common tactic of defense attorneys to bifurcate a trial in this manner, and a better claim for ineffective assistance would've been if the attorney failed to do so; that would have allowed the jury, which acquitted Turner of the aggravated robbery charge, to learn that Turner had a prior conviction for -- you guessed it -- aggravated robbery.

Not to be left out, the court comes up with a novel conclusion, too, in State v. Grier, another case on consecutive sentencing.  The 8th District has been very good so far in requiring judges to explicitly make the necessary findings for imposition of consecutive sentences:  (1) they're necessary to protect the public from future crime or to punish the offender; (2) they aren't disproportionate to the seriousness of the offender's conduct and to the danger to the public, and (3) either that (a) the offenses were committed while the defendant was on probation, bond, or post-release control,(b) the harm was so great that single prison term doesn't t adequately reflect seriousness of offender's conduct, or (c) the defendant has extensive criminal history.  Here, the judge failed to make the finding about proportionality, but the court decides that's not a problem:  "the trial court addressed proportionality when it found that the harm was so great or unusual that a single term would not adequately reflect the seriousness of the crime."  But proportionality and great or unusual harm are two separate findings.  Couldn't you also say that if the judge found the harm was so great or unusual, that he also "addressed" the question of whether consecutive sentences are necessary to protect the public and punish the offender?  If you're going to say that a finding on one can substituted as a finding on another, pretty soon you're left with nothing but  mush.

One decision, State v. Jabbaar, didn't present any novelty, and that's probably too bad.  I'd discussed the case after oral argument.  The short version is that the judge had held a hearing four days before trial where he invited the prosecutor to recount the evidence against Jabbaar, commented on the strength of that evidence ("you want to go to trial without any explanation for your DNA being there?"), told Jabbaar that "I certainly think you should consider pleading," and finally promised him a sentence of 13 to 15 years if he pled, as opposed to the 33 years he was facing on conviction.

In my earlier post, I voiced the opinion that it was clear that the judge had crossed the line, but that observation proved too optimistic; Jabbaar's conviction and sentence is affirmed, with one judge concurring only in judgment and one dissenting.  The main thrust of the plurality opinion is that what the trial judge did here was "qualitatively different" from what the trial judge did in State v. Byrd, a 1980 Supreme Court decision where the court reversed Byrd's plea because of the participation of trial judge in plea negotiations.  But that's setting the bar incredibly low:  after meeting in private with Byrd's mother and sister to encourage them to pressure Byrd into pleading guilty, the judge brought Byrd into chambers, along with a sheriff's deputy, a probation officer, and an assistant prosecutor (the discerning reader will note that Byrd's attorney was not among those present), where the judge negotiated a plea bargain with the prosecutor and urged Byrd to take it.  Do we really want to say that any sort of judicial participation in plea bargaining short of Byrd is permissible?

Still, I can't get too worked up over the decision, primarily because it's not like there was an injustice perpetrated here:  the evidence against Byrd was overwhelming, and even the dissent acknowledges that the judge's participation was "well-meaning given the evidence against him and the potential for a long prison term if he were convicted."  The problem I have is that it's a lost opportunity.  As I commented in the earlier post, Frye hearings, in which the court puts on the record the plea offer that's been made, have become commonplace, and offer the opportunity for abuse:  having some idea of what a judge can and cannot do in that setting is essential.  Jabbaar offered the opportunity for the court to provide some clarity on that.  The court didn't take advantage of that opportunity, virtually guaranteeing that it will have additional opportunities to do so down the line.


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