May 2013 Archives
Last year, there were 89 death penalty cases brought in Ohio. The distribution was, shall we say, uneven. Of Ohio's 88 counties, 62 of them brought no capital cases at all. Only four counties had five or more: Lucas with five, Hamilton and Lorain with six, Mahoning with eight...
... and Cuyahoga County with 34.
That's not explained
by disparity in population or crime. It
reflects the policy choice of Bill Mason, the county prosecutor up until
November of last year. Despite the
claims of many that Mason was using the prospect of the death penalty to induce
plea bargains, Mason insisted that he was simply seeking to "equally apply the
law." If he was truly seeking the
maximum punishment because he believed the defendant deserved it, his office
was singularly incompetent in proving it:
of the 400 capital cases he pursued during his term in office, only 16%
resulted in verdicts which allowed for a possible death sentence, and only
seven resulted in that sentence being actually imposed. More typical was a suburban drug killing in March
of 2010, which resulted in capital charges against six defendants. By the end of the year, all had pled out,
none to an offense higher than involuntary manslaughter. Four were given probation.
That's not explained by disparity in population or crime. It reflects the policy choice of Bill Mason, the county prosecutor up until November of last year. Despite the claims of many that Mason was using the prospect of the death penalty to induce plea bargains, Mason insisted that he was simply seeking to "equally apply the law." If he was truly seeking the maximum punishment because he believed the defendant deserved it, his office was singularly incompetent in proving it: of the 400 capital cases he pursued during his term in office, only 16% resulted in verdicts which allowed for a possible death sentence, and only seven resulted in that sentence being actually imposed. More typical was a suburban drug killing in March of 2010, which resulted in capital charges against six defendants. By the end of the year, all had pled out, none to an offense higher than involuntary manslaughter. Four were given probation.
Ryan Widmer can tell you that the State doesn't have to prove motive to convict you of a crime. He was convicted of murdering his wife Sarah, and nobody has any idea of why he did it.
Widmer and Sarah had been married less than four months when the 911 operator received a call from him, claiming that he'd just come upstairs and found his wife lying face down in the bathtub. Police and EMT's arrived shortly thereafter, but attempts to revive Sarah were unsuccessful. The coroner ruled the death a homicide, and Widmer was charged with her murder. His first trial resulted in a conviction which was vacated for jury misconduct, the second in a hung jury, but the third time proved a charm. For the state, anyway: Widmer was convicted of murder and sentenced to 15 to life. During all three trials, no one testified that they'd seen the Widmers having any marital difficulties whatsoever; they appeared to be just like any other newlywed couple.
To be sure, there was evidence against Widmer. There were some inconsistencies in his testimony, and the coroner and other medical experts testified that injuries to Sarah's neck and head were sustained before her death and weren't consistent with injuries commonly resulting from attempts at CPR. (Widmer presented experts who testified that the cause of the injuries was inconclusive.) There was also testimony by a fingerprint expert who claimed to have found marks consistent with the theory that Widmer had drowned Sarah in the tub.
But Widmer's attempts to get his conviction thrown out raise several interesting issues.
The most interesting case out of the 8th District last week was Johns v. Hopkins. Well, it wasn't the most interesting case -- it had something to do with when somebody might be considered an uninsured motorist, a matter I find approximately as interesting as Amanda Bynes' downward career trajectory --but it had the most interesting case name. Who knows, next week's docket might bring us Notre v. Dame.
As for criminal cases, there were only a handful, three to be exact. They strode down well-trodden paths: when does an attorney render ineffective assistance, when does a trial court abuse its discretion in denying a motion to withdraw a guilty plea, the two occasionally intertwined. The answer to the former is "rarely," to the latter, well... the discussion seems to have moved from the realm of the empirical to that of the purely theoretical, calling to mind Alan Dershowitz's reply to whether he believed in plea bargaining: "Believe in it? My God, man, I've seen it!" Except Alan hasn't seen a court reverse the denial of a motion to withdraw a plea, and neither has anyone else.
There are several cases that were argued before the Supreme Court back in January and February where we're still awaiting opinions -- cases on the application of Blakely to minimum sentences, whether DNA samples can be obtained from anyone arrested for a crime, a judge's participation in plea bargaining -- but the Court can work quickly when it wants to. Just one month after argument, the Court hands down its decision in Metrish v. Lancaster. Lancaster had been tried in Michigan for murdering his girlfriend in 1995, and the jury convicted him, rejecting his defense of diminished capacity. The conviction was reversed, but by the time his second trial was to begin, the Michigan Supreme Court had declared that the defense could no longer be recognized. He claimed this violated his rights; there is case law holding that the retroactive abolition of a defense by a court is a due process violation, akin to a legislature passing an ex post facto law doing the same thing. The Court opted to write narrowly, Ginsburg's opinion for a unanimous Court saying little about retroactivity, and instead focusing on the fact that the state supreme court's intervening decision was based on its conclusion that the legislature had actually abolished the defense back in 1975. The Ohio Supreme Court specifically rejected the defense back in 1982.
Speaking of the Ohio Supreme Court, back when I started this blog, I also did stuff on civil cases, like personal injury. I was reminded of that by the only decision by the court last week, Marusa v. Erie Ins. Co., which was a sequel to the decision in Snyder v. American Family Ins., which I discussed when it came down back in 2007. Snyder held that an insurance company could exclude from its definition of an uninsured motorist a tortfeasor who was exempt from liability on sovereign immunity grounds; Marusa holds that if the insurance company does include such a tortfeasor in its definition, it does have to pay. That might seem self-evident, but the decision was only 4-3. The majority opinion also served to remind me why I stopped writing about stuff on civil cases, specifically, this sentence:
Fortunately, the long and tortured history of this court's jurisprudence regarding uninsured/underinsured-motorist ("UM") insurance coverage need not be retold for us to resolve the case before us.
By comparison, allied offenses or disproportionate sentencing is a walk on the beach.
Now, let's take a walk through the courts of appeals...
Small talk on the elevator over at the Justice Center: "So what you got going today, Joe?"
"Couple pretrials, supposed to start a trial in Russo's room at ten, but I'm on standby for trial in Corrigan's room, so I don't know..."
"That's nothing. I've got fifty trials scheduled this week."
Actually, that's not small talk on the elevator over at the Justice Center, but it might be small talk on the elevator at the Miami-Dade Courthouse, at least according to this opinion of the Supreme Court of Florida.
The 3rd District's decision in State v. Hadley doesn't tell us directly what Daniel Hadley's politics are, but we can pretty much guess: when Donald Ayars, a census worker, showed up on Hadley's porch, Hadley hit him with a baseball bat. Not badly enough to do much damage; Ayars managed to escape to a neighbor, and called 911, while Hadley was calling the same number to give his side of the story. Felonious assault comes in two flavors -- causing serious physical harm and using a deadly weapon -- and while the evidence wasn't sufficient to establish the former, the State chose to try to drag Hadley through Door B. He did not go gently, kicking and screaming all the way that he acted in self-defense, and trying to avail himself of Ohio's Castle Doctrine.
Sometimes the courts try to save a defendant from himself, especially in plea withdrawal cases. The attorney works out a sweetheart deal, or maybe he doesn't; maybe it's just the best deal under the circumstances, but it will save the defendant a decade or so in prison, maybe a life tail in a rape case, maybe even the needle. Then the client has second thoughts, tries to back out of it, but the court won't let him. I've seen it happen in dozens of cases.
It might have happened to Tywand Hudson. He and two cohorts, Johnny Speed and Michael Brooks, were charged with breaking into the home of a woman and her two children, and robbing them at gunpoint. That worked out to a count of aggravated burglary, and three each of aggravated robbery and kidnapping, all with one- and three-year firearms specs. That meant Hudson was looking at some serious pain: the robbery and the kidnapping would merge, and if you got the right panel in the court of appeals the burglary might, too, but there were three victims, so there's a separate animus for each one, and the three-year gun specs... Realistically, the best Hudson could hope for on conviction was a sentence of around eight years, and there was a distinct possibility of one in the mid-teens.
Hudson was spared that pain when, in the midst of trial, the State and the defendants agreed to a deal: a plea to a single count of robbery and one of abduction, both third degree felonies, with a one-year gun spec and an agreed two year sentence. Sure enough, when Hudson showed up for sentencing two days later, he tried to back out of the plea, but the court denied the motion, and last week in State v. Hudson, the 8th District completed the judicial effort to rescue Hudson from himself.But maybe not.
After a thorough investigation, I can tell you that the rumor that the 8th District judges gather before each conference, hold hands, and sing "Kumbaya" is unfounded. Sure, you wouldn't know it from last week's spate of decisions: seventeen of them, and not a single dissent. Not even a "concurring in judgment only," which is judicial shorthand for "I agree with the result, but everything you said except 'judgment affirmed' is just shy of coherence." Every single decision, unanimous, even the civil cases. You could almost feel the love in the room.
Well, not for criminal defendants. The dozen cases there feature the following "wins" for defendants: in State v. Knox, the court affirms Knox's 5th degree felony conviction for possession, but finds that the convictions for drug trafficking - which had merged anyway - were against the manifest weight of the evidence, and in State v. Brown, in which the court vacates one of Brown's two 5th degree felony theft convictions for insufficient evidence, leaving intact his 12-to-life sentence for rape.
Well, since you guys and gals are getting along so famously, might I respectfully suggest another opportunity for mingling? How about you do an en banc on consecutive sentencing? Because you really, really need to do something about that.
Three decisions from SCOTUS this past week, one involving Federal pre-emption of state laws, another on patent exhaustion, and a third on bankruptcy defalcation. I'll wait right here while you scramble off to read them. Or, more likely, look up what "defalcation" means.
Back already? Okay. The more interesting news, in the now-you-tell-us category, was former Justice Sandra Day O'Connor's rumination that perhaps the Supreme Court shouldn't have taken Bush v. Gore. O'Connor's certainly not the first Supreme Court justice to publicly lament earlier decisions. Lewis Powell cast the deciding vote in the Court's 1986 decision in Bowers v. Hardwick, which upheld Georgia's sodomy law; Powell retired a year later, and told a reporter in 1990 that "when I had the opportunity to reread the opinions a few months later, I thought the dissent had the better of the arguments." And there's a fairly lengthy list of justices who came to have second thoughts about their votes in death penalty cases.
No second thoughts any of the justices down in Columbus, or at least none that they're sharing with us. The only criminal decision was State v. Athon, which we discussed on Friday. Some interesting cases in the court of appeals, though...
The prosecutor delays giving you discovery, because he knows the speedy trial clock doesn't start ticking again until he does. You get forty pages of cell phone records, and you want to give them to your client so he can go through them and figure out which are significant, but you can't, because the prosecutor has designated them as "counsel only." The prosecutor files a certificate of nondisclosure, refusing to give you the names and addresses of any witnesses, not because he has any real concern about their safety, but because his office's policy is they don't give out that information in any case involving an offense of violence.
Despite the exhortation in new Criminal Rule 16, which adopted "open discovery," that its purpose is "to provide all parties in a criminal case with the information necessary for a full and fair adjudication of the facts," there's still some game playing that goes on. For those of us who've practiced criminal law for a while and thus gained a more jaundiced viewpoint of the system, it's not surprising that the it would be a defendant who got called for game playing in the Supreme Court's decision last week in State v. Athon.
Gallagher's a good political name in Cuyahoga County. I can't remember when there haven't been at least two or three judges by that name. A full quarter of the twelve judges on the appellate court are named Gallagher. There's one on the general division of the common pleas bench, and one in the probate division. Like I said, it's a good political name.
Michael Gallagher realized that, too, back in 1990. He'd had a nondescript career as an attorney -- I'd had a case with him once, and frankly, I wouldn't let him wash my car -- but he'd put in the six years as a lawyer that is the sole requirement to run for judge, so he got the necessary 100 signatures on a nominating petition. The $50 he spent to file it was the only expenditure of his campaign. He did no campaigning. He won. His judicial career lasted only five years, when he was convicted of selling cocaine to an undercover DEA agent. So you'd figure that Michael Gallagher would be the poster boy for merit selection of judges in Ohio, wouldn't you?You'd be wrong. When Ohio Supreme Court Chief Justice Maureen O'Connor unveiled her proposals for reform of the judiciary the other day, conspicuous by its absence was any suggestion that judges should be appointed, rather than elected.
I've claimed that the obvious purpose of the sentencing reforms of HB 86 was to send fewer people to prison for less time, but you certainly wouldn't know it from last week's spate of decisions from the 8th District: the six criminal cases of note involved sentences of 33, 31, and 24 years.
The 31 year sentence, handed down just ten days before HB 86 went into effect, went to Takara Kelley, who ran a red light two years ago and t-boned another car, killing two people and injuring three children, leaving one permanently disabled. The black box taken from the car indicated she was driving 78 mph at the time, three times the speed limit, and she had a blood/alcohol reading of .18, and also cocaine and marijuana in her system. The decision in State v. Kelley doesn't break any new ground; the major assignment is that the misdemeanor conviction of DUI should've merged with the aggravated vehicular homicide, and everybody agrees that it should, so it goes back for that. There's an assignment of error that trial counsel was ineffective for failing to raise disproportionality at sentencing, but that goes nowhere.
SCOTUSblog tells us that we should expect the Supreme Court to announce some decisions tomorrow, but then again, that's what they told us last week, with the only result being that we all drank deeply from the Cup of Bitter Disappointment. Okay, not so much. In any event, the only news from the Court last week was speculation from the Talking Heads on whether and how much the approval of gay marriage in Rhode Island and Delaware (with Minnesota almost certainly joining them this week) might affect the justices as they deliberate the two cases on gay marriage that were argued a month ago. So that's what it has come to: instead of writing about the legal effect of decisions the Court's made, I'm writing about how decisions the Court hasn't made will be affected by non-legal factors.
F. Scott Fitzgerald observed that there are no second acts in American lives, but then again, he never met Michael Davie. Sent off to prison for 33 to 75 years in 1992 for a bevy of offenses, including attempted murder, aggravated burglary, and aggravated robbery, Davie used his prison time to take paralegal correspondence courses from Blackstone School of Law. Paroled after 14 years, Davie set about representing people in various matters, including parole hearings, criminal cases, and custody disputes. All without benefit of a legal degree, something the Supreme Court looks harshly upon. It smacked him with a $30,000 fine, and last week ordered him to appear before the court to explain why he shouldn't be held in contempt.
That was the highlight of the court's activity, so we're left with nothing else to do but wander over to see what's happening in the courts of appeals...
Third time's the charm, goes the old saying. It wasn't for Tyrone Noling, nor for Bearnhardt and Cora Hartwig, at least according to the case laid out by prosecutors back in Noling's trial in 1996. There wasn't any doubt that in April 1990 Noling had twice robbed elderly couples in their homes, and the State of Ohio claimed that a few hours after the second, Noling went for the hat trick day with the Hartigs. The difference was that this time the couple, both 81, wound up dead. The only physical evidence that potentially linked Noling to the killings was that the victims had been shot with a .25 caliber, and that was the gun Noling had stolen in one of his robberies the day before. That petered out, though, when ballistics found that the killings had been committed with a different weapon. But two of his co-defendants testified against him (a third had agreed to, but backed out at trial), and that was more than enough for the jury, and for courts that would review and uphold Noling's conviction and death sentence in the ensuing years.
"Although the concept of lesser included offenses is easily understood in theory, it can be downright baffling in practice." That's the first sentence of the section labeled "Analysis" in the Supreme Court's decision last week in State v. Deanda. Sadly, Deanda, and another decision the court made last week do not contribute to a lessening of bafflement on the subject.
Deanda knifed a guy, and was charged with attempted murder, but the jury convicted him of the lesser included offense of felonious assault. Did I say "lesser included offense"? The 3rd District didn't think so; it reversed, finding that felonious assault wasn't a lesser. At first blush, that seems clearly wrong. The jury obviously figured that felonious assault was a fair result -- maybe it found that Deanda didn't intend to kill, maybe it decided that the victim was somebody who deserved a good whooping, whatever.
You're representing a defendant accused of child pornography in Cuyahoga County. You tell me everything about the offense -- that he's charged with about 65 counts, that there's nothing out of the ordinary (basically, that the charges don't involve anything besides downloading and possession). You tell me the defendant is 41 years old, has never been in trouble with the law, and that he's been in counseling for his sexual problems. You have a psychologist who'll come in and testify about that, and the results of the Static-99 indicate he's not a risk of ever molesting a child. He's got plenty of family support, and a decent job. You ask me, "How much time is he likely to get?"
"I have no idea," I tell you. "He could get anywhere from probation to a couple of decades in prison."
Then you give me one more piece of information: the name of the judge your client drew at the arraignment.
I can probably tell you within a couple of years what your client's going to get.
There's something wrong with that.
Allied offenses and sentencing were the key issues this week, but I came away from reading the decisions with a basic principle of mine reaffirmed: Sometimes, you need to know when to shut up.
The Potomac Nine handed down two decisions last week; rather, one decision and one non-decision, the latter coming in Boyer v. Louisiana. Boyer had sat in jail for seven years awaiting trial for capital murder, a delay the state courts had found was caused by lack of funding for the attorneys appointed for him. Upon closer review of the record, five members of the Court decide that the cause was delays sought by the defense - delays, the dissenting liberal bloc claims, which were sought because of the lack of funding. The five hold sway, and the case is dismissed as having been improvidently granted, to resurface in another form on another day. The one case decided by the Court was McBurney v. Young, in which the Court unanimously upheld Virginia's Freedom of Information Act, which limited access of government records to the state's citizens. The Court noted that there is no constitutional requirement that a government open its records at all, a correct if troubling finding, and found that the limitation was not a violation of the Privileges and Immunities Clause, which is probably the last time in a while you're going to see any reference to that clause here, or anywhere else, for that matter.
Down in Columbus, the Olentangy Seven handed down several decisions in criminal cases - State v. Noling, which involves a death penalty case and DNA evidence, and State v. Deanda, the court's latest venture into the morass of law concerning lesser included offenses. We'll discuss those at the end of the week. The court also handed down a bevy of disciplinary cases, three of them showing what a randy lot attorneys appear to be. The mildest was Cincinnati Bar Assn. v. Wieczorek, where the attorney's sexual dalliance with a client he was representing in a DUI case resulted in a public reprimand. At the other end of the scale was the indefinite suspension meted out in Dayton Bar Assn. v. Greenberg, where the lawyer had sent video and pictures of himself masturbating to what he believed were 12- and 13-year old girls on the Internet, and which were, of course, undercover agents. (I'm convinced there's a chat room on Yahoo where 12- and 13-year old girls pretend to be undercover agents.) In the middle of the spectrum is Disciplinary Counsel v. Detweiler. Detweiler had developed an interest in one of his divorce clients, but she proved unresponsive to his advances. Apparently subscribing to the observation that not all poems are written with the pen, he sent her a picture of his erect penis. The board had recommended that he be given a one-year suspension with six months stayed, but the court upped that to a full year's suspension, possibly prompted by the fact that Detweiler had been publicly reprimanded before for having sex with another divorce client. Yo, dude, time to scale back on the Cialis.
Let's see which appellate court decisions, ahem, arouse our interest...
For those of us who remember the almost daily pronouncements by Administration officials in the run-up to the Iraq invasion of 2003 about the dangers posed by Saddam Hussein's arsenal of WMD's, we may have been a bit non-plussed by the charges brought against the Boston Marathon bombers: "unlawfully using and conspiring to use a weapon of mass destruction." Not to understate the horrors inflicted by the bombing, but Sarin, anthrax, suitcase nukes, that we can see. Pressure cookers? As Spencer Ackerman explains in Wired, though, using a "destructive device" qualifies as a weapon of mass destruction, and that's defined very broadly: just about any old bomb, including a home-made one, will do.
So I guess Kiera Wilmot can thank her lucky stars that she's at least not facing Federal prosecution for what could have been a high school science project gone wrong.
Wilmot, a 16-year-old student at Bartow High School in Florida, mixed up some household chemicals -- toilet bowl cleaner aluminum foil -- in a water bottle to see what would happen. What happened is that a small explosion caused the top to pop off, followed by billowing smoke. No one was hurt -- the incident occurred outdoors -- and everyone agreed that Kiera Wilmot hadn't intended to hurt anyone; her principal noted that she was "a good kid" who "has never been in trouble before. Ever." He had a little chat with Kiera about the dangers of doing things like that, and Kiera "told us everything and was very honest. She didn't run or try to hide the truth."
So, chat had, no one's hurt, life goes on, right? Well, life goes on in Bartow High School, but it does so without Kiera. She's not only been expelled, but on Monday morning she was arrested and charged with "possession/discharge of a weapon on school property" and "discharging a destructive device."
Oh, and more news: those offenses are felonies, and Kiera will be tried as an adult.
It's hard to tell what's more screwed up, the laws on drugs or the laws on immigration, and the two intersected nicely in the Supreme Court's decision last week in Moncrieffe v. Holder. Moncrieffe, a Jamaican national who'd lived in America since he was brought here when he was three years old in 1984, was stopped by Georgia police for a traffic violation in 2008, and was discovered to have 1.3 grams of marijuana, enough, the Court says in its opinion, for two or three joints. (And yes, like you, I would have given not inconsiderable sums of money to be at the conference where the justices arrived at that estimate.) Moncrieffe pled out to possession of marijuana with intent to distribute in the state court, which was not good advice, because intent to distribute drugs is an aggravated felony which requires deportation. Distributing a small amount of marijuana for no money, however, is a misdemeanor under Federal law, and allows the attorney general discretion in determining whether the person should be deported. The Court decided that the Georgia conviction did not determine the issue of whether Moncrieffe's crime was an aggravated felony or a misdemeanor under Federal law, and so Moncrieffe could not be subject to mandatory deportation.
No decisions from Columbus, but oral argument in State v. Kareski proved interesting. This was the "lite beer" case from Akron that I'd mentioned before. Kareski was prosecuted for selling a Bud Lite to an underage person, but the State didn't call anyone to testify that the item contained more than 1.5% alcohol, which was a required element. No matter; the trial court took judicial notice of that. The 9th District reversed, holding that a judge couldn't take judicial notice of an element of a crime, but remanded the case for retrial. It wound up before the Supremes on Kareski's claim that without proof of the element, the evidence was insufficient, and instead of remanding the appellate court should have vacated the conviction. I'd opined that the oral argument could provide a good drinking game: you'd have to take a chug every time one of the justices said the word "beer." The game would have gotten off to a rollicking start; early on, Pfiefer aptly summed up the issue as being "when is a beer a beer." Tedium took over after that, though, and by the end I would have been downing shots of tequila, and probably without waiting for the trigger word to be uttered. In any event, from the looks of the oral argument, it's going to be the prosecutor who'll need a good stiff one when the decision comes down.
In the courts of appeals...
On Friday, we discussed the issues in Salinas v. Texas, the case on the 5th Amendment that was argued before the Supreme Court a couple weeks ago. We'll finish up on that today with a discussion of how the oral argument went.
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