What's Up in the 8th
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.
Have you ever heard the term, "juvy life"? Joshua Mhoon has. According to him, he took a $6,000 bribe to
say that he was the one who shot into a house, striking the 13-year-old victim
in the head. He was 17 at the time and,
according to him, decided to wear the jacket for the crime because the real
culprit gave him the aforementioned six large and assured him that, as a
juvenile, Mhoon would be released when he turned 21. Mhoon was instead bound over for trial as an
adult and entered a guilty plea, then ten weeks later, just prior to
sentencing, filed a motion to withdraw the plea, offering the bribery story and
claiming that he was elsewhere when the crime was committed. On appeal from the denial of the motion, he
complains that his attorney was ineffective for failing to present evidence of
the alibi, and of the bribery. Of the
latter there was none, and counsel informed the court that he did not file a
notice of alibi with the plea withdrawal motion because Mhoon had provided him only
the first name of the friend he was allegedly staying with the shooting occurred.
Attorney competence also figures in to the overall scheme of
plea withdrawal, because the court has apparently settled on four criteria to
determine whether a judge has abused his discretion in denying the motion to
withdraw; it doesn't
(1) where the accused is
represented by highly competent counsel, (2) where the accused was afforded a
full hearing, pursuant to Crim.R. 11, before he entered the plea, (3) when,
after the motion to withdraw is filed, the accused is given a complete and
impartial hearing on the motion, and (4) where the record reveals that the
court gave full and fair consideration to the plea withdrawal request.
From an analytical standpoint, these aren't particularly
helpful. The third and fourth are
basically the same. The second is meaningless: if the judge did screw up the Rule 11
hearing, the plea gets tossed, without even considering the other three
factors. The court's discussion of the
first issue reveals how low the bar is for determining whether counsel is "highly
competent": the opinion notes that "Mhoon
was represented by experienced, competent counsel who has handled 'hundreds of
pleas.'" We all have, but that's not
exactly the encomium that "highly competent counsel" would prefer to have
inscribed on his tombstone. As expected, though, it's enough, and in State
v. Mhoon the court affirms Mhoon's conviction and sends him off to do
the sixteen years he claims someone else should be doing. In the unlikely event that Mhoon was telling
the truth, the briber got his money's worth; that works out to little under
$400 a year.
Attorney competence figures into Cleveland
v. Graham, too. Graham was
convicted of resisting arrest arising out of a spat between security guards,
and argues on appeal that the trial judge should've granted his motion to
continue the trial so that he could secure the appearance of three
witnesses. Whether to grant a
continuance is reviewed even more deferentially than the abuse of discretion
standard normally allows for, and the panel finds ample reason for the
denial: the witnesses had been
subpoenaed only two days before the trial began.
But, Graham argues, if the judge didn't abuse his discretion by denying the motion to continue, his attorney surely rendered ineffective assistance by waiting until the eve of trial to file the subpoenas. Here the court makes an interesting distinction. Normally, the issue of what witnesses to call falls under the rubric of "trial strategy and tactics." Here, the attorney had decided to call the witnesses, but simply failed to do so in a timely manner; as the court notes, "once defense counsel chose to subpoena the witnesses, his failure to do so in a timely manner cannot constitute a sound trial strategy." The twist to this, though, is that it results in rewarding a higher degree of sloth. If I don't get around to subpoenaing the witnesses until a day or two before trial, that will constitute deficient performance on my part. But if Ineglect to do it at all, the court will chalk that up to my wisdom as a trial tactician. Anyway, it does Graham no good, because there's nothing in the record to indicate how the witnesses might have helped him.
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