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July 2013 Archives

Ruminations

What's the difference between God and a Federal judge?  Cleveland's Ariel Castro is not the only one who will have to achieve virtual immorality to see his release from prison.  Gemase Lee Simmons was on the receiving end of an 898-year sentence handed down by a judge in Texas.  Surprisingly, a Federal judge in Texas:  at the conclusion of a bench trial (very rare in Federal court; the prosecution has to agree to it), District Judge Fred Bierry found Simmons guilty of 39 charges, mostly running the gamut of child pornography offenses:  not only receipt and possession of it, but production, distribution, and transportation as well.  Over a period of several years, Simmons convinced numerous young women, some of them minors, that he was seeking participants in a modeling reality show, which of course didn't exist, and recorded them engaging in sexual activity.  (The case is a lot more sordid than that; you can read the details here.)

The opinion finding Simmons guilty, which you can read here, is a bit over the top; Biery seems intent on cramming as many literary references -- to current pop culture, as well as the Golden Oldies like Dante's Inferno -- as he can into his opinion.  (He notes Simmons' explanation for his confession to the FBI -- "I was being facetious" -- and footnotes it, "LOL.").  

Continue reading "Ruminations" »

What's Up in the 8th

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Bad news for Old MacDonald, and for James Deal.  The City of Bedford, one of Cleveland's 'burbs, had seen fit to remove "one pygmy goat and four chickens" from Deal's abode, and he contended that the city ordinance banning such animals was unconstitutional.  In Bedford v. Deal, the 8th District delves into the intricacies of constitutional analysis, finding that since "the maintenance of animals is not a fundamental right," the ordinance need only survive rational basis scrutiny.  The court notes that "raising goats and chickens on so called 'urban farms' is increasing in popularity" -- a fact of which I was blissfully ignorant, and can only pray that my neighbors remain similarly unenlightened -- but concludes that the ordinance is "rationally related to a legitimate governmental interest" in protecting the public safety and welfare.  Perhaps Deal, who handled the case pro se -- imagine your surprise -- would have had more luck had he argued for an originalist interpretation:  would the Framers have believed that keeping animals was fundamental right?  I'm not sure how Jefferson, Washington, and some of the other large plantation owners might have come down on that issue.

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

Case Update

Shows what I know. Two weeks ago, Ariel Castro was arraigned on 977 counts of aggravated murder, rape, kidnapping, felonious assault, and various other crimes relating to his holding hostage three women in his basement for parts of four presidential administrations. Last Thursday, I suggested that was overkill, and inconsistent with County Prosecutor Tim McGinty's vow to make the criminal justice system more efficient. The next day, Castro pled guilty to all but 40 of the charges, and agreed to a sentence of life without parole plus 1,000 years in prison.

My first reaction was that we'd become Texas, and I hadn't gotten the memo. I kind of imagined the meeting of McGinty and his advisors on the plea deal to have gone something like this:

Still, everyone involved in the case deserves some credit here. Castro got some benefit from the deal, in that McGinty agreed not to pursue capital charges. For the death penalty's dwindling band of supporters, it does show that capital punishment has some settlement value; in fact, the defense lawyers couldn't have recommended the deal in good conscience had it not been for that. The life without parole sentence assures that Castro won't see the light of day as a free man, and the 1,000-year sentence appropriately reflects the community's reaction to the horrific nature of Castro's conduct. Above all, a just result was achieved within less than three months after Castro's arrest. That's efficiency. It certainly stands in marked contrast to the debacle of Anthony Sowell's case; the case involving his murdering 11 women and hiding their bodies in his home took nearly two years to wend its way through the courts. To be sure, taking a death sentence off the table for Sowell was an entirely different matter, but obtaining it was probably nothing more than an exercise in symbolism: he turns 54 next month, two weeks after Billy Slagle, presently on Ohio's death row, is scheduled to be executed for a crime he committed 27 years ago. You do the math.

SCOTUS is in recess, and its Ohio counterpart didn't hand down anything we'd find notable, so let's take a look at the court of appeals decisions...

Continue reading "Case Update" »

This and that

Question for the day.  A client comes in, tells you he's got a DWI and a felony theft.  Can he have them expunged?

A year or so ago, you'd tell him no, and he'd be on his way.  The law at that time allowed an expungement only for a "first offense," and the DWI was a double whammy:  although minor misdemeanors and most traffic violations aren't considered an "offense" for purposes of determining whether someone is a first offender, DWI is, and that would've precluded expungement of the theft.  And even if the client only had the DWI, there's nothing you could do:  DWI, like certain other offenses (domestic violence, 1st and 2nd degree felonies) wasn't expungeable.

A lawyer called me up the other day and asked if SB 337 changes that, and I think it does.  SB 337 (which I discussed here) was the revision to the expungement statute which was enacted last year, and allows you to expunge two offenses:  two misdemeanors if they're not the same offense, or a felony and a misdemeanor.  

Continue reading "This and that" »

Speedy justice

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Whatever else may be said about Lonnie Donaldson, he's really screwing up the statistics for Judge Brian Corrigan, Assistant County Prosecutor Blaise Thomas, and defense attorney Jim McDonnell.

Donaldson was charged with capital murder back in October 2007.  The pretrial proceedings normally attendant to death penalty cases ensued, and it took over two years for the case to finally go to trial.  A week into that, the judge declared a mistrial.  From there things went all to hell:  new attorneys were appointed, the original judge recused herself, the new attorneys asserted the same death penalty motions:  a "motion to recognize mercy as a mitigating factor," a "motion to avoid coercive practices during mitigation phase deliberations," and a "motion to dismiss death penalty specifications due to constitutional and international law violations" being only a few of the pleadings typically filed when the client's life is on the line.  Donaldson got into the act, too, asking that his lawyers be removed (they were, and a new pair selected, with yet another bevy of motions following), and filing a pro se petition for habeas corpus in the Federal District Court alleging that his right against double jeopardy was violated by the original judge's declaration of the mistrial.  The common pleas court's docket entry of August 28, 2012, indicates that the 6th Circuit accepted an appeal on the habeas case, so all state court proceedings were stayed.  In February, the State deleted the death penalty specs.  But the case is still pending, and today, Lonnie Donaldson will spend his 2,117th day sitting in the Cuyahoga County jail awaiting trial.

Continue reading "Speedy justice" »

What's Up in the 8th

Coming soon to a Supreme Court near you (namely, the one in Ohio):  the 8th District's decision last week in State v. MoleThe case has what is considered "sex appeal " in appellate circles for Supreme Court review (which says about all you need to know about appellate circles):  it declares a statute unconstitutional , and it's on an issue of first impression.  Plus, it's got actual sex appeal:  it involves the sexual battery statute.

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

Case Update

The Supreme Court's not in session anymore, so the news on the Federal court level comes not from Washington, D.C.  It comes from right here in Cleveland.  The other day, a friend of mine called the Federal Defender's office about the annual seminar they put on in August.  She got a message saying that the woman she called was on furlough last week.

She wasn't the only one.  A year ago, after the latest budget debacle, the people who pretend to govern us decided that the best way out of the impasse was to put six Democrat and six Republican congresscritters in a room, with the threat that if they didn't agree on a budget, there'd be an automatic across-the-board cut.  Everybody figured that Republicans would agree to tax cuts because they didn't want to see reductions in the defense budget, and Democrats would agree to smaller tax cuts because they didn't want to see reductions to social spending.  Of course, this scenario depended upon the participants having a collective maturity greater than what would be normally found in a first-grade classroom, so the cuts went into effect.  The EPA, the Pentagon, the Transportation Safety Administration, all of them felt the axe.

And so did the judiciary system.  Back in April, a judge in New York City delayed the terrorism trial of Sulaiman Abu Ghaith, one of Osama bin Laden's top propagandists, until next year because the budget cuts required all Federal public defenders to be furloughed for more than five weeks by the fall.  The death penalty habeas proceedings for Keith Nelson, who killed a 10-year-old in 1999, have been halted because Nelson's Federally-funded lawyers don't have the money to pay for travel and witness fees for a key hearing this month.  And that's this year.  The Federal Defenders' Office has been informed that their budget for next year will be cut by almost a quarter, causing the layoff of between a third and a half of the staff.

Hopefully, there will be fewer cases to defend.  A bi-partisan panel selected by the House Judiciary Committee is studying the overcriminalization of Federal law, and unlike the bipartisan panel previously mentioned, seems to be finding some areas of agreement.  They should:  conservatives can't be happy about the intrusion of the Federal government into areas of criminal law which are traditionally the bailiwick of the states, and liberals can't be happy about many of the Draconian penalties found in the Federal criminal statutes, particularly in drug laws.

We talked about the sole decision of the Ohio Supreme Court on criminal law last week, State v. Lalain, on Thursday, so let's get to the appellate court decisions.

Continue reading "Case Update" »

Birthday Boy

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It's my birthday this week.  It won't be the gala affair it was last year, as commemorated in the picture on the left, but I'm still taking the day off. 

Well, I didn't mean that my birthday is all week long.  It was actually on Tuesday, but it was easier (and better) to take a Friday off.  My lovely bride and I had originally planned to go hiking in the Metroparks, but since the current weather trends make a trek through Death Valley seem like a better alternative, we'll do something inside, maybe hit the Art Museum or take in a movie.   (By the way, we've been to Death Valley.  That's a picture I took of it.  Fascinating place.)  The new pope has spent the last few weeks anointing past popes for sainthood.  He should've included the guy who invented air conditioning.

One of the things I won't be doing is anything involving law.  In fact, I'll probably go to a four-day-a-week posting schedule for the rest of the summer; with the US Supreme Court out of session, and no arguments scheduled in the Ohio Supreme Court until summer, there's not as much to write about.  I've got some things on tap for next week:  my hotly anticipated review of SCOTUS' decisions, how Ariel Castro could have made Tim McGinty and other prosecutors think twice about loaded indictments, and an 8th District decision declaring unconstitutional the provision of the sexual battery statute which prohibits peace officers from having sex with minors.  (If you're wondering what the connection is there, you've got a leg up on understanding the decision.)  But that's for next week.  Meantime, enjoy the day.  I will.  

Continue reading "Birthday Boy" »

What you need to know about restitution

Daniel Lalain's attorney had worked out a pretty good deal.  Lalain had been looking at a first degree felony theft -- over a million dollars -- but he was pleading guilty to only the fifth degree variety of that offense, theft of between $500 and $5,000.  He was a first offender and fell into the "mandatory probation" provision of HB 86, so what's the worst that could happen?

Well, being ordered to pay restitution of just north of $63,000 made the list.

But yesterday, in State v. Lalain, the Supreme Court took that off his tab, but missed an opportunity to clarify the law in this area.  

Continue reading "What you need to know about restitution" »

Thoughts on the Zimmerman/Martin trial

George Zimmerman's killing of Trayvon Martin was a story that always carried more baggage than it should.

Version 1.  We tried to make it about race, and it certainly started out that way:  unarmed 17-year-old black boy shot dead by white man has a certain historical resonance.  Plus, there was the added flourish of young black man being gunned down by white man for walking in the wrong (i.e., white) neighborhood.  Trayvon was a good-looking young kid, he was unquestionably innocent of anything when George Zimmerman started following him, and he was unquestionably unarmed.

But then details emerged which muddied the storyline.  First, Zimmerman didn't easily fit the role of racist; had the chubby Hispanic's name been Rodriguez, the story never would have made it past page six of the local fishwrap.  And Zimmerman's injuries were a problem, too; they were not consistent with any version of the story in which Zimmerman walks up to Trayvon and murders him in cold blood.  Something happened between the two that night, and the physical evidence shows that until Zimmerman used his gun, he was getting the worst of it.

Version 2.  And at that point, of course, it became a debate about guns, or, more accurately, a celebration of them:  Martin's killing was a vindication of Zimmerman's classical right of self- defense.  Mostly, it was chest-pumping on the right, and well-earned:  when there's twenty pre-teen children slaughtered in a schoolhouse, and you can still keep Congress from passing a bill requiring nothing more than background checks for gun purchases, which are supported by a majority of gun owners...  Well, we know who's calling the shots, no pun intended.

But there were problems with that version, too, the most troubling of which is that Zimmerman brought a gun to a fist fight.  Does any reasonable person really believe that if Zimmerman didn't have a gun, Martin would have killed him?  All Martin's death demonstrated was how deadly guns are and the ease with which they kill; the discussion would have gone quite differently if Zimmerman had used his gun to bludgeon Martin to death.  If George Zimmerman didn't have a gun than night, he'd be uninjured and Trayvon Martin would be alive, because without a gun Zimmerman wouldn't have felt emboldened enough to follow someone was doing nothing more than peaceably walking through the neighborhood.

So what did we learn?  I learned that the arc of my legal career might have gone much higher had I been so fortunate as to try cases against California prosecutors in the 1980's and 1990's, and Florida prosecutors now.  Casey Anthony, and now this?  I didn't see much of the trial, but what I did see left me with the firm belief that this case is not going to serve as any more of a springboard for the prosecutors' legal careers than the O.J. Simpson case was for Chris Darden and Marcia Clark.

We also learned something about race and ourselves.  Mostly, that it's still kind of ugly.  The undercurrent of the entire trial was whether there'd be race riots if Zimmerman was acquitted, some pointing to the promise of King Samir Shabazz, nominal leader of the Black Panther Party, that "this time we're going out to Whitey's suburbs and burning down HIS community."  That's a vow to be taken with several tons of salt; over the past 40-some years, the Black Panther Party has proved spectacularly unsuccessful at anything besides getting its members killed by policemen.  Nonetheless, the conservative blogosphere went into overdrive in an attempt to vindicate those predictions, pointing to this store being looted here and a car overturned there, the entire national tab of injuries, arrests, and damage not coming close to what Ohio State students did to Columbus in the aftermath of the Buckeyes' 14-9 win over Michigan in November 2002. 

To be sure, the race hustlers were out, and one is left to idly speculate how things might have turned out if Al Sharpton were one-tenth the man that Martin Luther King, Jr. was.  But then Barack Obama, whose legal training has apparently taught him that he should use the presidential pulpit to expound views which could threaten a defendant's right to a fair trial, isn't FDR, either.  Giants have walked among us; they do not now.  That's part of the problem.  By the end Sharpton and others seemed to be merely going through motions, but for most blacks, especially as the evidence developed, the case was never about race on that simplistic a level.  It really was so much more than this case.  George Zimmerman was simply one more in a long line of Southern white men acquitted of killing a black man.

What the public learned about the criminal justice system is what we lawyers already know:  cases are messy.  The effort in some quarters to paint Martin's affinity for marijuana as equivalent to a proclivity for mayhem overreached, but Martin's halo was nonetheless tarnished.  So was Zimmerman's; there were the charges for domestic violence, resisting arrest, and battery on a police officer.   The evidence wasn't clean for the prosecutors, but some part of Zimmerman's story didn't mesh, either, like the positioning of Martin's body.  But that's what always happens.  Nobody walks out of a courtroom in a criminal trial looking as good as they did when they walked in.  Everybody gets dirty, and the case gets blurry, and oftentimes it comes down to not whether there's a doubt, but whether it's a reasonable one.  When a case boils down to which set of parents you're going to believe when they say it's their son screaming for help on the 911 call... 

It wasn't there.  Not as a legal case, and not as a symbolic one.  It became one, because that's what we do in this country any more:  everybody has to take to the barricades each time some issue comes up, and there's no reasoned discussion, everything is reduced to black and white.  In life and in law, it's just not like that.

Continue reading "Thoughts on the Zimmerman/Martin trial" »

What's Up in the 8th

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Did you know it's error for a judge to impose court costs on a defendant without telling him that his failure to pay the costs may result in him being ordered to perform community work service?  Well, courtesy of 8th District's decision last week in State v. Ayers, now you do.  So the judge has to do another sentencing hearing.  If the defendant's in prison, this means setting up a video conference with the prison, but if the defendant doesn't agree to do it that way, you have to bus him in from Mansfield or Ross Correctional or Belmont or wherever, appoint him a lawyer, tell him that his failure to pay court costs may result in him being ordered to perform community work service, and send him on his way.

Maybe it's just me, but I don't know if an intelligently-designed criminal justice system would work that way.  

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

Case Update

On the list of Things I Could've Watched Instead of Another Episode of The Walking Dead, we can add C-Span's coverage of Chief Justice John Roberts' remarks to the Fourth Circuit Judicial Conference a couple weeks back.  After opening with the joke about the two rabbis and a prostitute -- and yes, I'm making that up -- Roberts did let on with something I didn't know:  the justices don't discuss the cases among themselves before oral argument.   That came as part of his discussion about the growing problems with the justices dominating the argument; in certain cases, you could actually see justices framing their questions more to make an argument to one of their fellow members, usually Kennedy, rather than to probe the lawyer's case. 

The other thing noted by Roberts is the exceedingly narrow background of the justices:  none ever held elective office, and only one (Kagan) did not come from an appellate judgeship.  That contrasts sharply with prior courts:  William Howard Taft was a former president when he ascended to the Court, Earl Warren was a governor, and in the 1940's, three members of the Court had been senators.  Roberts acknowledged that this resulted in decisions focusing on legal reasoning rather than public policy.  You could spend a lot of time arguing about whether that's a good thing or bad.  Frankly, I think the bigger problem is that the justices are so far removed from the lives that ordinary people live that they have no idea of the practical impact of their decisions. 

Nothing from the Ohio Supreme Court, but there's a couple good ones in the courts of appeals, so let's take a look at those.

Continue reading "Case Update" »

Friday Roundup

So I lied.  Yeah, I know, on Monday I promised you I'd take a look at some of the final criminal decisions the Supreme Court came down with in the past few weeks, and a post on the 4th Amendment cases this past term, and instead you wind up with a two-part post on Missouri v. McNeely and implied consent laws.  So sue me.  Blame it on Mike Duff.  He's the sharp-eyed attorney in Lorain who spotted an Idaho case, no less, on the impact McNeely might have on implied consent, and gave me a call about it.  So I ran with it.  It's an interesting issue, and it's one where I think the logical implications of the decision went right by a lot of people.  Including the ones who made it.

Follow the money.  The Cleveland Plain Dealer recently started its annual push for a Pulitzer by running an above-the-fold front-page story on fecal transplants, accompanied by the puzzling but

fecal.jpgslightly unsettling picture at right.  Not the kind of subject you want to ponder over your cup of morning joe.  That might provide more comfort from the PD's recent announcement that its print edition is going to be published only three days a week, thereby sparing readers from having their breakfasts spoiled by reading about stool while they're sitting on one.

But there were also stories in the legal genre.  Not just ones about the Cleveland Indians pitcher who was busted for having a package of marijuana shipped to his house from California.  (He certainly wasn't impressed by the "Buy Ohio" campaign.)  Or those providing another data point on our glide path to societal implosion, like the one about a fight breaking out at a kindergarten graduation.  Sprinkled among those was one was on the common pleas court's commercial docket, initiated back in 2009, in which two judges were selected to handle all cases involving business disputes.  Yeah, I know, it smacks a little bit too much of "inside baseball," but stick with me here.

The idea behind it appears to be a good one:  those judges would accumulate expertise in those types of cases, thus decreasing delays and increasing the likelihood of a proper result.  This would make the region more attractive to businesses thinking of relocating here.  The program was up for renewal at the end of June, and there was a lot of talk that the judges would vote to scuttle it.  Not true, it turned out; they voted 21-13 to retain it.

But the story about the retention of the program offers some interesting insights if you read between the lines.  First, we learn that not only is the program going to be retained, it will be expanded:  the number of judges assigned to that docket will be doubled, to four, and terms for service on the commercial docket will be limited to three years.  Why?

Rotation of judges was in part a response to criticism that the commercial court -- which oversees business lawsuits that tend to have the most money at stake, handled by some of the region's most prominent attorneys -- is a privileged assignment that should be shared.

Why would it be a "privileged assignment"?  That clue is provided by a Franklin County common pleas judge, who told the PD that the reason that court last year voted to disband their commercial docket was due to the fact that it "became a political football because business litigation often attracts premier attorneys who can be generous donors to judges when they're running for election."

The discerning reader will note that if the purpose of having a commercial docket is to allow the judges on it to gain expertise in the area, it makes little sense to limit their terms to three years.  That point was noted by a local law professor, who opined that the limit was "perhaps a political compromise." 

Ya think? 

Judges run for election every six years.  It's not cheap; even a judge who's running unopposed has to pony up about seven grand just to be on the ballot sheet printed by the respective parties and mailed out to voters.  Go to any of the numerous judicial fundraisers which dot the calendar in even-numbered years, and who will you see?  Most of the attendees are criminal defense lawyers, having shelled out a hundred bucks for the privilege of eating lukewarm hors d'oeuvres in the hope that the next time that judge is in the arraignment room, he'll assign them a criminal case where they'll be paid $50 or $60 an hour, and then work for free once they hit the fee caps, which are among the lowest in the state.  (Only four of Ohio's eighty-eight counties pay less for assigned counsel in criminal cases than does Cuyahoga County.)  I'm not sure why a lot of defense attorneys regard that as a viable business model, but they do.

Now, change that to a room of lawyers wearing $2,000 suits, probably more than the entire wardrobe for the average criminal lawyer.  Wouldn't you rather be the judge at that fundraiser?

That's not to cast aspersions.  I've known both of the judges who are presently on the commercial docket for years, and they're men of impeccable integrity.  I know virtually all of the 34 judges on the common pleas bench, and I can't think of a single one who would even contemplate allowing politics or campaign contributions to influence the outcome of a case. 

I'd probably feel a bit more comfortable making that assertion if two judges here hadn't gone to Federal prison for doing just that a couple years back.

Here's the deal.  This is the system the voters want; they've rejected the idea of merit selection time and time again, to such an extent that Chief Justice Maureen O'Connor, in her latest proposal for judicial reform, didn't even bother including it.  Well, if you want to elect judges, they've got to raise money for their campaigns.  Being a judge on the commercial docket attracts "generous" campaign donors, so you can hardly fault the court for deciding to increase the number of judges and rotate them, thereby allowing more of them to drink from the Golden Chalice.

If you're a voter and are disturbed by this, tough.  Think of it as the cost of doing business.

Continue reading "Friday Roundup" »

McNeely and implied consent laws - Part II

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Yesterday we talked about how an alert reader had tipped me off to the possible impact of the Supreme Court's recent decision in Missouri v. McNeely on Ohio's implied consent law.  That law provides that anyone who drives a car in this state impliedly consents to having their blood tested for alcohol.  That's a little simplistic; the cop still has to have a reasonable suspicion of criminal activity to stop you, and probable cause to believe you're drunk to have you submit to a blood test.  But if he gets there, according to the law, the police can drag you to a hospital and tie you to a gurney while the nurse draws your blood.

In McNeely, the Court affirmed its previous view that a blood draw was a search for 4th Amendment purposes, and rejected the State's argument that the metabolization of alcohol in the body creates an exigency which dispenses with the warrant requirement.  

Continue reading "McNeely and implied consent laws - Part II" »

McNeely and implied consent laws - Part I

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So I'm sitting in the office pounding out yet another appellate brief - the sixth one in the last four weeks - when I get a call from one of my numberless horde of regular readers.  "Hey, I'm a big fan," he says.  "Who isn't?" I respond humbly.  "Listen," he tells me, "you've got to write a post about Ohio's implied consent law."

I'm skeptical at the outset.  For a variety of reasons, some of which make sense and some of which don't, I don't handle DUI cases.  (Although I'm guessing that if somebody walked into my office right now, told me, "Russ, I blew a .16 in Rocky River last Friday night, and I'm supposed to be in court tomorrow," and plunked twenty-five Benjamins on my desk, I could see my way clear to deviating from my standard practice.)   My initial reaction to his suggestion was that I'm as likely to write a post about implied consent as I am about Ohio's uniform partnership law, which, as best I can make out, requires partners to wear uniforms.  But, my reader tells me, the Supreme Court's recent decision in Missouri v. McNeely may have a major impact on the implied consent law. 

And he may just be right.

Continue reading "McNeely and implied consent laws - Part I" »

What's Up in the 8th

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The Supreme Court's decision in Lafler v. Cooper a couple years ago opened up new ground for ineffective assistance of counsel claims.  Cooper was charged with attempted murder, and his lawyer advised him to reject the state's plea offer and go to trial, telling Cooper the state couldn't prove intent to kill because all of his bullets had hit the victim below the waist.  (Yes, I know; that's like something we'd expect to hear from our clients:  "They can't convict me of attempted murder, I only shot him in th ass!")  When Cooper was convicted and sentenced to three times what he would have had on the plea, he blamed it on his attorney's bone-headed advice, and the courts agreed. 

The defendant in the 8th District's decision last week in State v. Hills tries to climb aboard the Lafler train; he claims his attorney was ineffective for not advising him take a plea which would have deleted the firearms specifications in the indictment.

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

Case Update

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The Supreme Court's recent decision striking down the
Defense of Marriage Act was decided by a 5-4 margin, with Justice Anthony Kennedy casting the deciding vote (and writing the majority opinion).  That's not an unusual position for Kennedy; in the Court's nine 5-4 decisions this past term, Kennedy was on the winning side in eight of them.  That was slightly better than he did in the 2011 term (in the majority in twelve of the fifteen 5-4 decisions), 2010 (fourteen of sixteen), 2009 (twelve of sixteen), and... well, I think you can see the pattern.  And while Kennedy has more frequently sided with the conservatives, he's been a solid vote for gay rights, authoring the opinions in Romer v. Evans (striking down a state law which sought to prohibit municipalities from extending anti-discrimination laws to sexual orientation) and Lawrence v. Texas (holding Texas' sodomy law unconstitutional).

Now, here's food for thought:  the reason Kennedy wound up on the Court was because the Democrats, fresh from regaining the Senate in the 1986 midterms, defeated Robert Bork's nomination to the Court the following year, and Howard Baker, Ronald Reagan's chief of staff, persuaded him to nominate a more moderate justice -- Kennedy.   

I'm going to finish up with some analysis of the Court's last few decisions on criminal law later this week, and next week I'll have my annual recap of the Court's criminal law decisions of this past term.  This was also a big year for 4th Amendment decisions -- no fewer than five of them -- and I'll have a post on that later this week, too.

I won't be doing any posts on Ohio Supreme Court cases; the court hasn't issued an opinion since June 18.  It did accept three new criminal cases for decision, one of which looks fairly interesting.  Let's say a judge sentences a defendant to community control sanctions, and also makes an error in the sentence, for example, in awarding restitution over the defendant's objection.  If the judge subsequently revokes the sanctions and imposes a prison sentence, can the defendant appeal the restitution issue at that point, or did he need to appeal from the original sentencing entry?

Okay, I said "fairly" interesting.  Let's check out the courts of appeals to see if we can top that.  I'm betting we can.

Continue reading "Case Update" »

What you need to know about gun specs

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You're probably going to learn something today.  A lot of lawyers, judges, and prosecutors don't know it.  Considering it can add three or more years to a defendant's sentence, it's something that you better know.

Your client Darnell takes offense from some imagind slight -- the driver of a passing car looked at him cross-eyed -- and decides to avenge the grievance by emptying a clip into the offending vehicle, which happens to be carrying three other people.  Darnell, being  long on pride but short on brains, is immediately apprehended and charged with four counts of attempted murder, all with three- and five-year gun specs.  The five is for shooting out of a car, and has to run consecutive to the underlying offenses and three-year specs, so you figured you've accomplished quite a lot to get the five-year specs dropped and the charges knocked down to four counts of felonious assault.  Darnell doesn't have a bad record, you've got a decent judge, and yes, you've still got the three-year gun specs, but as you explain to Darnell, they all merge because they arise from the same transaction.  You figure Darnell will get the middle range on an F2, about five years, plus three for the gun.  Considering what he was looking at before you walked in the door, eight years is a major accomplishment.

So you're a little non-plussed when the judge gives him the five years, then tacks on another twelve for the specs.

Continue reading "What you need to know about gun specs" »

What's Up in the 8th

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Two years ago, when the Ohio legislature amended the sentencing statutes in an attempt to reduce Ohio's prison population, one of the methods employed was the concept of "mandatory probation":   unless the defendant had a gun, caused harm, or violated the conditions of his bond, offenders with low-level non-violent felonies and no prior felony record couldn't be sent to prison.  The 8th District's decision last week in State v. Cargill could force a major re-examination of that provision.

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Case Update

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SCOTUS concluded its 2012 term last week, as usual holding
the big decisions -- on gay marriage, voting rights, and affirmative action -- for ast.  One of those rulings, Descamps v. US, is big for those who handle Federal criminal cases.  Under the Armed Career Criminal Act, a defendant who's convicted of a crime involving a firearm faces an additional minimum mandatory 15-year prison sentence if he's previously been convicted of three "violent" felonies.  Descamps had been convicted of burglary in California.  Normally, that would be an offense of violence under the ACCA, but California's statute was
unusual in that it didn't require unlawful entry; a shoplifter could be convicted of burglary.  Descamps argued that since the California statute didn't meet the generic definition of burglary, it didn't qualify as a violent felony. The judge looked at the plea transcript, though, found that the prosecutor proffered that the crime "involved the breaking and entering of a grocery store," and held that this was sufficient to make the crime an offense of violence.  The 9th Circuit affirmed, but in an 8-1 decision the Supreme Court reversed:  since the California statute didn't require unlawful entry, it didn't qualify, and the judge couldn't remedy that by finding that in this particular instance unlawful entry had occurred.  The decision has a good bit more significance than that, and in the next couple weeks I'll take a closer look at the case, and the ACCA.  I'll also do my annual recap of the Supreme Court's criminal decisions this past term.

Down in Columbus, only one decision of note.  State v. Steele presents a police interrogation gone way wrong.   Steele, a police officer, had a hankering for a particular woman, and so went to her child's school, forced a confession from him that he'd been involved in a robbery, then arrested him and kept him detained for nine days.  He invited the mother over to the apartment under the guise of talking about the son's case, and asked her to engage in sexual activities.  Whoa, dude, next time use Match.com.  This resulted in Steele's conviction of intimidation and abduction, and the upshot is (1) a police officer can be convicted of intimidation if he knowingly filed a false complaint to influence or intimidate a witness, and (2) he can be convicted of abduction if he "deprives a person of his or her liberty when a reasonable police officer would know that there is no probable cause supporting the detention, no matter how brief."  That's the court's emphasis, and 6-1 decision takes pains to "stress that we are in no way attempting to tie the hands of police officers in their broad authority to arrest and detain suspects."  Not to worry; Steele's conduct was so over the top that I don't see his case serving as a model for future prosecutions of police officers.

Several interesting decisions from the courts of appeals, and our new weekly feature for the Update: a lawyer commercial...

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Recent Entries

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