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June 2013 Archives


I graduated 45 years ago with about 220 other people from Cumberland Valley High School in central Pennsylvania, just on the other side of the river from Harrisburg.  You remember how at your 10th year reunion, they had a small "in memoriam" passage in the back of the program guide, just enough to accommodate the names of the two or three people who'd been unfortunate enough to have checked out since graduation, usually by way of a grisly automobile accident.  By the time you get to the 45th, that takes up a page and a half.

I hadn't seen any of the people there in 25 years, and the universal response when I told people I was a lawyer was, "I always knew you'd be a lawyer."  That felt good.  Well, yeah, I know it beats, "Gee, I always figured you'd wind up as a Tier III Sex Offender."   But it was more than that.  This is what I've always wanted to do, and people knew that from early on. 

The trip takes about five hours, so I had lots of time to think.  One of the things I thought about was this blog.  My readership's down about 25% in the last six months.  A lot of it, I think, has to do with me getting away from why I started doing this.  The original purpose of this was a place where small firm and solo practitioners could drop by in the morning and find something which would help them in their practice, and would be interesting to read.  I've gone a little overboard with the analysis end of it.  And it's more boring.  Sometimes when I go back over my old stuff, I'll be pleased with a nice turn of the phrase, or my take on a particular subject, like rowdy fans or the benefits criminals gain from wearing glasses, at least at trial.  I don't see much of that anymore.

So I'm going to spend some time retooling here over the next couple weeks.  I'll keep some of the things, like the weekly case update and the look at the 8th District opinions, but I'm going to punch that up a bit, make it more down to earth and a little more user-friendly.  The other days I'm going to take at something you might want to know about, or something you'd enjoy reading about.  And this is Wide Web World; maybe jazz this place up a little as far as graphical content.

I'll be back with the normal stuff next Monday and Tuesday.  After that, we'll  see where we go.  And if you're a regular reader of this blog and what to drop me an email to let me know your thoughts, I'd appreciate that, too.

Continue reading "Reflections" »

Of floors and ceilings

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The defendant pleads guilty to firing a gun into a house, which carries a prison term of 5 to 10 years.  If the judge finds by a preponderance of the evidence that the crime was committed with a racial bias, he can add anywhere from an additional 1 to 5 years to the sentence.

The defendant pleads guilty to firing a gun into a house, which carries a prison term of 5 to 10 years.  If the judge finds by a preponderance of the evidence that the crime was committed with a racial bias, the minimum sentence he can impose is 7 years. 

Is there a difference between those two situations?  Back in 2000, in Apprendi v. New Jersey, the Supreme Court held that the first was impermissible; allowing the judge to increase the sentence beyond what it otherwise would be based on findings he made violated a defendant's 6th Amendment right to jury trial.  Two years later, in Harris v. US, the Court held that the second scenario was permissible:  since the finding affected only the minimum sentence, not the maximum sentence, there was no violation of the 6th Amendment.

On Monday, the Supreme Court in Alleyne v. US held that this didn't make sense, and overruled Harris.

Continue reading "Of floors and ceilings" »

Taking the 5th


On Monday, I mentioned that of the remaining Supreme Court decisions for this term, "the only criminal cases still to be resolved are one on mandatory minimum sentences and one on the armed career criminal act."  Oops.  I'd forgotten Salinas v. Texas, the one on the use of a defendant's pre-arrest silence.  That, and Alleyne v. US, came out on Monday, so we'll take a quick look at Salinas, and tackle Alleyne tomorrow.  (No post on Friday; I'm on the road.)

As I'd explained then, Salinas had voluntarily gone to the police station to answer some questions about a homicide.  (This wasn't a custodial interrogation, so Miranda didn't apply.)  During the interrogation, when the officer asked him if the shotgun they'd taken from his home would match the shell casings they found at the scene of the crime, he'd put his head down, shifted nervously, and didn't answer.  At his trial, the prosecutor used that silence to argue he was guilty.

Continue reading "Taking the 5th" »

What's Up in the 8th


I once had a case where my client was charged with four counts of aggravated robbery with a deadly weapon, each carrying one- and three-year firearm specifications.  At the first pretrial, I pointed out to the prosecutor that the "firearm" was a toy gun, which had proved utterly useless as a weapon; the defendant's intended victims had taken it away from him and beaten him with it.  "Well, I guess they missed that in the grand jury, huh?" he responded.

But, as we learn in the 8th District's decision last week in State v. Hammond, that doesn't necessarily preclude an aggravated robbery charge under the "deadly weapon" section.  Hammond features an intriguing backstory straight out of Grumpy Old Men:  a 50-year-old robs a 70-year-old.  Sample narrative:  "Patrick testified that he wears eyeglasses and also a patch over one eye, but he can see out of his good eye," and the robbery takes place in Patrick's apartment, after the two had feasted on a dinner of Polish boys and beer.  What's not to like?

Continue reading "What's Up in the 8th" »

Case Update

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Everybody's gearing up for the typical end-of-the-term madness at SCOTUS, with decisions on gay marriage, affirmative action, and Section 5 of the Voting Rights Act expected over the next fortnight.  The only criminal cases still to be resolved are one on mandatory minimum sentences and one on the armed career criminal act.  Both are likely to be limited in impact to Federal cases, but the former, which concerns the application of Blakely/Apprendi to minimum sentences, may have wider implications.

Continue reading "Case Update" »

Man of the year

Two years out of law school, Norman Minor joined the Cuyahoga County prosecutor's office.  He was unlike any other prosecutor who had come before him.

He was black.

It was 1930, and there weren't a lot of jobs for black lawyers.  There weren't a lot of black lawyers, for that matter.  This was 31 years before the words "affirmative action" would first be mentioned, in an executive order issued by John F. Kennedy.  A better perspective is given by the fact that it was a mere 11 years after a black teenager named Eugene Williams swam too near the whites-only beach off Lake Michigan in Chicago, touching off a race riot that killed thirty-eight people.  Not that the prosecutor's office here was particularly enlightened; Minor was only assigned to cases where the defendant was black.

Continue reading "Man of the year" »

The choices in the Castro case

There must be something in the water here.  Forty years ago, that something was sufficient to set the Cuyahoga River on fire.  Now, it seems to work differently.  A couple of years ago, Cleveland achieved nationwide notoriety through the work of Anthony Sowell, when police found eleven bodies of women Sowell had raped and murdered, then buried in his basement and backyard. 

His trial in 2011 resulted unsurprisingly in his conviction and death sentence, but now comes along Ariel Castro and puts us back in the national spotlight.  Amanda Berry disappeared from the Cleveland streets in 2003, just before she turned 17.  Gina DeJesus was just 14 when she vanished a year later, and Michelle Knight was 20 when she went missing in 2002.  It turns out all three had been kidnapped by Castro and held in dungeon-like conditions in his house on the city's near west side.  Actually, there was one other captive:  Amanda's six-year old daughter.  The father was Castro; he was alleged to have repeatedly raped the women, and to have induced one of them to have four miscarriages by beating her.

Continue reading "The choices in the Castro case" »

The pitfalls of social media


I got on Facebook several years ago, but I haven't been back more than three or four times.  Somehow, I just can't get that excited learning about what other people who can serve as the pieces in a game of Six Degrees of Separation from Russ Bensing are doing.  (And I assume they are no more interested in my daily travails, either.  Hell, I'm not sure I'm interested.  Several years ago, I just missed being in a terrible auto accident, and my life flashed before my eyes.  I got bored.)

Cuyahoga County assistant prosecutor Aaron Brockler might have been better served by staying away from Facebook, too.

Continue reading "The pitfalls of social media" »

What's Up in the 8th

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The cop's on the stand, and the answers he gives are teres, but pointed:  the defendant was put in jail in February, and he's stayed there until the trial.  That's a no-no; you can't bring out the fact that the defendant's in jail, because the jury might draw the inference that he's there because he's unusually dangerous.  That's why jailed defendants come dressed for trial in street clothes, instead of the orange jumpsuits.  So this would certainly seem to provide a basis for appeal of the conviction, on grounds of prosecutorial misconduct.

Except it was the defense lawyer's questions which brought that out.

Continue reading "What's Up in the 8th" »

Case Update

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The big decision from SCOTUS last week was Maryland v. King (discussed here last Wednesday) which narrowly upheld a Maryland permitting the police to obtain DNA samples from anyone arrested for a "serious" offense.  Another case received less attention, and more cursory treatment:  in Nevada v. Jackson, the Court in a brief per curiam opinion reversed the 9th Circuit's decision in a habeas case.  Jackson had been charged with raping his ex-girlfriend, and had been allowed to cross-examine the victim at trial regarding false allegations of rape she'd allegedly made against him in the past, but the trial court had refused to allow him to introduce extrinsic evidence, such as police reports and testimony by the officers who'd investigated those allegations.  The 9th Circuit held that this violated Jackson's right to "present a defense," but the Court unanimously disagrees. The result is due almost entirely to the limitations the Anti-Terrorism and Effective Death Penalty Act places on defendants seeking habeas relief.  The law was passed in 1995 to limit habeas claims, and it has exceeded probably beyond its advocates' wildest imagination.  One of the restrictions is that the state court decision has to involve "an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States."  There simply is no such decision, the Court noting that as long as the defendant is given expansive scope on cross-examination, the admission of extrinsic evidence is a matter for state laws and rules. 

Nothing new from Columbus, so let's head over to the courts of appeals...

Continue reading "Case Update" »

Anatomy of a search

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It looked like a run of the mill search case.  The cops see the guy -- we'll call him Doc -- go through a stop sign, pull him over, and find out he doesn't have a valid driver's license.  They get him out of the car, search him, find a little bag of white powder in his pocket, and the arrest for not having a driver's license becomes one for drug possession.  They put him in the cruiser, do an inventory search of the car, and voila:  they find a big bag containing white powder in a milk crate on the front seat.  The End.

But there was a problem with the search.

Continue reading "Anatomy of a search" »

The good life?

Jim Dinwiddie, Harry Rankin, and Ross Turner had at least five things in common.  They were all from Kentucky.  They were all lawyers.  They were all men.  They were all in their late 40's or early 50's.

And they all killed themselves.  

Continue reading "The good life?" »

Brave new world?


Alonzo King was arrested in 2009 for waving a shotgun at a bunch of people.  That probably wouldn't have amounted to a big deal.  What did amount to a big deal was that the police took a buccal swab from him, pursuant to a Maryland law which allowed DNA samples to be taken from persons arrested for "serious" felonies.  The DNA sample from King was found to match that taken from the perpetrator of a rape committed six years earlier.  He was convicted of that rape and sentenced to life in prison without parole.  The Maryland Court of Appeals tossed the conviction and sentence, finding that taking DNA samples from a person who hadn't been convicted of a crime violated the Fourth Amendment.  Different courts, both state and federal, have reached different results on the question, so the Supreme Court decided to resolve the issue.  On Monday, they did, and, by a 5-4 vote, it's bad news for King.

Continue reading "Brave new world?" »

What's Up in the 8th

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The defendant in State v. Dotson shows the downside of Woody Allen's observation that 90% of life is just showing up.  After going to his ex-girlfriend's house and getting into an argument with her father, he grabs a friend or two and returns to the scene, during which somebody throws a brick through the window of the home.  That gets him a conviction for criminal damaging, but the 8th tosses it, finding that 90% isn't enough:  that other 10% has to be proof that the defendant did something, either committing the crime himself or assisting, inciting, or encouraging someone else to do it, and there wasn't any of that here.  There are plenty of cases on the "mere presence" defense to a complicity charge, and here's one more.   It served as the only outright win for defendants this week, so I'll take it, but it's still somewhat surprising; many courts would have drawn an inference of complicity from Dotson's summoning his buddies to go back for what was obviously going to be a confrontation.

And then we have this:

Both of y'all bitchez goin' down smokin'.  Watch wait 'til I get diz tool bitch dat playin' with a nigga feelinz ova with y'all together y'all gone die together so keep walkin' around with dat nigga like shit sweet y'all dead bitch on my mama soul?  Watch no promise.  Bitch yo bezt bet iz too watch yo back cauze I'm lookin fo a tool too buy an when I found 1 bitch u gettin pick up in a bag one of y'all gone get caught slippen watch.

Continue reading "What's Up in the 8th" »

Case Update

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SCOTUS concludes the month of May by clearing the table for its annual sprint to the finish line of the term in June -- decisions on affirmative action, gay marriage, and, in the criminal area, DNA testing and mandatory minimum sentences -- by handing out two 5-4 decisions in habeas cases, McQuiggins v. Perkins and Trevino v. Thaler In the former, the Court revisited the "actual innocence"  (also called "miscarriage of justice") exception to the procedural requirements for habeas relief that it had adopted prior to Congress' passage of the Anti-Terrorism and Effective Death Penalty Act in 1996, which codified those requirements and tightened many of them.   One of the latter was the imposition of a one-year statute of limitations for habeas claims.  The 6th Circuit had reversed the denial of a habeas claim, finding that a claim of "actual innocence" was an exception to that.  Without going into detail about its ruling, the Court in a 5-4 decision rejected the state's view that the exception was limited by a "due diligence" rule -- that the limitations period ran from the date when the petitioner could have discovered the factual basis for his claim by the exercise of due diligence.  It does Perkins little good; the district court had found that his evidence didn't establish actual innocence, and instead of affirming the 6th Circuit, the Court vacated and remanded the case back for consideration of the District Court's decision, indicating the unlikelihood of any basis for the 6th Circuit to vacate that.  And to give you a more complete idea of the futility of habeas since passage of the AEDPA -- the rate of success in non-capital cases hover in the low single digits -- actual innocence isn't enough:  you've still got to prove some constitutional violation.

Thaler deals with the ability of defendants to present claims in habeas of ineffective assistance of trial counsel.  That poses some implications for Ohio law, so I'll deal with that separately on Wednesday.

The Ohio Supreme Court finally came down with a couple of decisions, both unanimous.  In Dunbar v. State, the court rejected Dunbar's claim for compensation under the wrongful imprisonment statute.  That statute prohibits compensation to someone who has "pled guilty" to the offense, for obvious reasons, but the circumstances in Dunbar's case were unusual:  he'd initially pled guilty to a lesser charge, but the 8th District vacated the plea because the judge had given Dunbar two years in prison after promising him probation at the plea hearing.  On the remand, Dunbar went to trial and was convicted, but that was vacated on appeal, too, for insufficient evidence.  In affirming Dunbar's award, the 8th had held that his initial plea was void.  The Supreme Court holds that the plea was merely voidable, not void, since "void" proceedings are limited to where the trial court entirely lacks subject matter jurisdiction.  (The discerning reader will note that this conflicts with the entirety of the case law on post-release controls, but that's another story.)  Just because the plea was vacated doesn't mean it never existed, and Dunbar gets no money.

The Brown County prosecutor apparently has little to do:  back in April 2010, she had her grand jury indict five upper-level officials of the Division of Wildlife for obstructing justice for failing to properly discipline another wildlife officer who'd allowed a wildlife officer from another state to obtain a hunting license use the Ohio officer's home address so as to pay the resident fee of $19, instead of the nonresident license fee of $125.  At issue in State v. Graham was the use of statements made by the five officials during an investigation.  In Garrity v. New Jersey, the Supreme Court held that statements procured from government employees under threat of loss of their job if they don't cooperate were barred from use in a future criminal trial.  (The rule applies both to the statements themselves, and any evidence derived from the statements.)  That the employee was compelled to make the statement by the prospective loss of his job is the key here, and the court in Graham examines the law concerning the situation where the threat of job loss isn't explicit.  It adopts the rule that an employee claiming compulsion "must have in fact believed his statements to be compelled on threat of loss of job and this belief must have been objectively reasonable," and then finds that the threat here was explicit.  Go figure.

In the courts of appeals...

Continue reading "Case Update" »

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