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September 2013 Archives

Case Update

The justices of the Supreme Court hold their first conference today; opening arguments scheduled for next Monday, marking the formal beginning of the 2013 Term.  Maybe; the Court issued an announcement last Friday that, in the event of a government shutdown caused by the Congressional impasse over the budget, it will continue its normal operations through October 4; after that, it's up in the air. 

There's a bit of irony in the fact that one of the cases scheduled for oral argument on Monday is Town of Greece v. Galloway, which features the question of the constitutionality of prayers before legislative sessions.  The genius of Madisonian democracy is the balancing of powers, essential to the prevention of tyranny.  But it requires compromise; otherwise nothing gets done.  The hyperpartisan nature of politics today precludes that, and anymore it feels like only divine intervention will prevent our political system from descending further into dysfunctionality. 

We now return to our regular programming.

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Assigned counsel reform - Update

The word for the day is "stultifying."  That's an apt description of the latest meeting on the proposed reforms to the assigned counsel system here in Cuyahoga County.

I did a number of posts on this a few weeks ago, starting here, but let's do the "in last week's episode" routine.  A guy named Dumbroff filed a federal lawsuit against the county, claiming that he sat in jail for five days without seeing a judge or a lawyer.  Earlier this year the county entered into a consent decree, basically agreeing that a defendant had to have an initial appearance within 48 hours of arrest.  As part of the decree, County prosecutor Tim McGinty tasked himself with the responsibility of coming up with a procedure to ensure this.  McGinty, never one to think small, took the opportunity to hire Dave Steelman of the National Center for State Courts to do a study on how the assigned counsel system in Cuyahoga County could be improved. 

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What's Up in the 8th

You remember the theory that, given an infinite amount of time, an infinite amount of monkeys with typewriters could produce the works of Shakespeare?  Something similar seems to provide the latest guidance in deciphering the current state of the law on consecutive sentencing:  if a judge talks long enough at the sentencing hearing, he's likely to say something that the appellate panel will construe as the findings necessary to support the imposition of consecutive sentences.

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Case Update

Phrase for the day:  "link rot."  According to this article from the New York Times, that's a current problem with Supreme Court opinions:  since 1996, the Court has cited to materials found on the Internet a whopping 555 times.  (Although it would certainly be more interesting to the tinfoil hat crowd if the number were 666.)  Half those links no longer work.  Like the one in a 2007 opinion which ruled against a driver's claim that the police had used excessive force in stopping him from fleeing the scene of a crime by ramming his car.  There was a video of the police pursuit submitted to the Court, and the opinion links to the video.  Scalia called it "the scariest chase I ever saw since the 'The French Connection,'" and Breyer suggested in a concurrence that readers watch it.  It's not there anymore.  Thank goodness, a consortium of law libraries is working on creating a permanent link that can be used by writers and courts, so it's quite possible that future generations will be able to read my musings here.

The Supreme Court kicks off the 2013 Term on October 7, and Burt v. Titlow is the lone criminal case scheduled for argument that week.  As I mentioned when I did my preview three weeks ago of the criminal cases on the Court's docket so far this year, Titlow presents a reverse-Lafler issue:  instead of claiming, as the defendant in Lafler did, that his lawyer was ineffective for recommending that he go to trial, Titlow contends that his lawyer screwed up by allowing Titlow to withdraw his plea, resulting in Titlow getting 20-40 years instead of 7-15.  It should be an interesting oral argument.

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Back with more

But not until tomorrow... On the road today. I'll have the Case Update tomorrow, the 8th District roundup on Wednesday, an analysis of the Crawford problems with cold cases on Thursday, and a look at a member of the "brutal" heroin gang that the Feds rounded up last week.

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From the Mailbag, Part II

The next time I decide to take a break, I think I'm going to do what Rush Limbaugh does when he goes on vacation.  No, not deal with my jones for painkillers; hire a guest blogger.  And I just might have Jack Stevens, a lawyer in Toledo, do that.  Jack took the time to write me a 3-page letter on the Supreme Court's decision in State v. Ricks, which I discussed last week.  He makes some interesting points, and it prompted me to take another look at the decision.  

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From the Mailbag, Part I

How quaint.  Two members of my unnumbered hordes of regular readers sent me missives this week, by snail mail no less.  Some good points on the Supreme Court's decision in Ricks last week, and another one suggesting I highlight the 8th District's recent decision in State v. RoscoeGood suggestions both, so let's take a look, starting with Roscoe.

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What's Up in the 8th

Which of the following verdicts should be reversed on appeal as being inconsistent:

  • A.  The defendant is charged with kidnapping and felonious assault, with the kidnapping being to "facilitate a felony," and is acquitted of the felonious assault but convicted of the kidnapping.
  • B.  The defendant is charged with aggravated robbery with a deadly weapon and a firearm specification, and is convicted of the aggravated robbery but acquitted of the firearm specification.
  • C.  The defendant is charged with rape and kidnapping with a sexual motivation specification, and is acquitted of the rape but convicted of the kidnapping.

As the defendants in State v. Price and State v. Lowe learned to their sorrow last week, the answer is "None of the above."  

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Case Update

Among the Supreme Court cases to anticipate next term are several dealing with the detritus left over from past decisions.  One, Schuette v. Coalition to Defend Affirmative Action, seeks to challenge Michigan's Proposal 2, which amended that state's constitution to prohibit any public government or institution from "discriminating against, or granting preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin."  That's pretty close to the language found in several portions of the Civil Rights Act of 1964, but the 6th Circuit struck down the Michigan amendment by an 8-7 en banc vote, along purely party lines.  The 6th has become a co-punching bag for the Court, along with the 9th - since the 2008 term, the Court has reversed the 6th in 24 out of 25 cases - and I don't imagine this case will break that mold.  The Court will also decide whether to hear Liberty University v. Lew, a challenge to the Affordable Health Care Act's mandate that employers provide a minimal level of health insurance for their workers; Liberty University is contesting the requirement that the insurance provide contraceptive coverage, claiming that violates its religious beliefs.

Freedom of religion is also at the forefront of Elane Photography v. Willock.  Willock had sought to have the shop do the photographs of her wedding, but when the shop found that Willock's intended was another woman, it backed out, the couple who run the company claiming that taking photographs of the wedding would conflict with their religious beliefs that marriage is union of a man and a woman.  The New Mexico Supreme Court rejected the argument, finding that refusal would have violated New Mexico's "public accommodations" law, the same way that a refusal to take photographs of an interracial marriage would.  There are some interesting First Amendment issues, and not only on religious grounds.   Elane Photography contends that there's a free speech issue here, too:  their work is a form of artistic expression, and requiring them to photograph the wedding is compelled speech.  We'll see if the Court takes it. 

Nothing new in the Ohio Supreme Court, so let's head over to the courts of appeals.

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Free speech and the loudmouth

It's fair to say that Johnathan Fonte was a pain in the ass for Julia Ruane, an assistant dean at Cuyahoga Community College.  He'd been dismissed on academic grounds, then contacted her in February of 2012 about readmission.  He needed to start full-time in the spring semester to qualify for student aid, but it was the school's policy to limit students seeking readmission to two courses, and neither of the ones Fonte wanted to take were being offered in the spring.  Fonte yelled into the phone that she was a "freaking idiot," used profanity, and told her that if she didn't help him, he'd "make her sorry" or "make her pay" because he was a "mentally ill person."  He told her that he was going to call the governor, the president, the TV news, and a lawyer, and sue the college and her personally.

He didn't do any of those things.  And he didn't get into the spring semester.  Or go full time.  In fact, all the exchange accomplished was to get him convicted of menacing.

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What's Up in the 8th

Lonnie McCoy is the biggest beneficiary of last week's batch of decisions from the 8th:  the court vacates his conviction for burglarizing an 88-year-old woman's house, finding the evidence insufficient.  A somewhat surprising result, given that a neighbor saw McCoy coming out of the house; the absence of any stolen items could easily be explained, as the dissenting judge surmises, by McCoy having abandoned his plan once he saw the neighbor approaching.  Still, the most interesting aspect of the case, for me, was that the purported victim was mowing her lawn at the time.  Gotta show this case to my wife. 

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The court takes a look at hearsay

Article VIII of the evidence rules deal with hearsay.  You'll find the definition of it, the exceptions to it when the declarant isn't available, the exceptions where it doesn't matter whether the declarant is available, special exceptions, like in child molestation cases.  One thing you won't find is the "investigatory" exception.  That arises with astonishing frequency in criminal cases, and it happened in Thomas Ricks' murder case.

There was no question that Aaron Gipson had murdered Calvin Harper, but Gipson claimed he didn't act alone:  he told the police that someone named "Peanut" had accompanied him.  The police drove him past Ricks' house, where Ricks happened to be standing outside, and not only did Gipson identify him as Peanut, the police testified that he appeared "upset and scared."  The police subsequently obtained a picture of Ricks and showed it to Gipson, who told them, "That's Peanut." 

The detective testified to all of this at trial; Gipson wasn't called.  The police had used the picture in a photo array they showed to other witnesses, who identified Ricks; thus, the judge ruled that Gipson's statements weren't being admitted for their truth, but to explain the course of the police investigation, namely, how the police obtained the photograph of Ricks.  The court of appeals affirmed, but last week the Ohio Supreme Court unanimously reversed.

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Case Update

Can the police search the contents of your smartphone without a warrant?  Four years ago, in State v. Smith, the Ohio Supreme Court said no, in a decision I described at the time as "so defense-friendly it has me looking for other signs of the Apocalypse."  In fact, the decision's a bit of an outlier; most courts have concluded that a warrantless search of a cellphone incident to the defendant's arrest is permissible.  The California Supreme Court came to that conclusion, and the US Supreme Court is being asked to take the case.  There's a good article on the amicus brief filed by the Constitutional Accountability Center (and no, I've never heard of it either) arguing that the contents of a cellphone fall within the purview of a person's "private papers," the protection of which was a key factor in the adoption of the 4th Amendment.  That's the kind of argument that could resonate with Scalia, who's taken a much more defendant-friendly approach on 4th Amendment issues recently, so we'll see what happens.

Mirable dictu!  The Ohio Supreme Court came down with a decision in a criminal case, two of them, as a matter of fact.  One, a key decision on the use of the "investigative exception" to the hearsay rule, we'll talk about tomorrow, and move the 8th District summary to Wednesday. 

The other, State v. Dzelajlija, also came out of the 8th, and did not show the district at its best.  As I explained when I wrote about the oral argument, and also when the appellate decision came down, the case has followed a tortuous path, which can best be summarized as follows:  Dzelajlija's conviction from his first trial was vacated for evidentiary errors, and his second trial was reversed because the Supreme Court had held in State v. Colon that failure to include the mens rea element in an indictment was structural error.  Just before Dzelajija's third trial, though, the Supreme Court reversed Colon in State v. Horner, so the trial court applied Horner and reinstated the conviction.  In Dzelajlija's third appeal , the court again reversed, finding that he'd raised an issue of manifest weight of the evidence which hadn't been resolved in his second appeal.  A few weeks later, though, the court reconsidered, and decided that the trial judge should have listened to its decision in the second appeal reversing the case on the basis of Colon.

The contention that a trial court should listen to what the court of appeals says, despite an intervening decision to the contrary by the Supreme Court, met the fate that you'd expect.  The Supreme Court reverses it and sends it back so the 8th can take a 5th whack at it, on the manifest weight issue.

A quick look at the decisions from the courts of appeals...

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The Coming Storm

Well, actually, the coming Supreme Court Term.  It begins on September 30th, with what is known as the "Long Conference," which poses the question:  when you have nine Supreme Court justices in a room, many of them noted bloviators, is there any such thing as a "short conference"?  Not likely.  Anyway, they take up consideration of the petitions that have accumulated over the summer, deciding which ones to add to the 72 to 80 cases they'll hear during the year.  The docket is over half-full already; the Court's accepted 44 cases.  Today we'll take a look at the criminal cases awaiting the Court's decision.

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What's Up in the 8th

Who's that adorable moppet in the video below?

Why, it's Ryan Gosling, fresh from his audition for the Mickey Mouse Club Musketeers.  (He doesn't look quite so adorable in this picture from his star turn in The Driver.)  


So, why are you reading this here?  Because it was probably that long ago that the State won three search cases in the 8th in the same week.

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Case Update

The Holy Grail for lawyers is the class action:  If you can figure out how somebody might have done something wrong, no matter how minimal, to a bunch of people, you could be in for a big payday.  Your clients, not so much, as typified by the suit against the makers of Grand Theft Auto, which I detailed here:   the plaintiff class would have received a total of $26,050, with the vast majority of them receiving a $5 coupon toward the purchase of their next video game, while the lawyers pocketed $1 million.  (Emphasis on "would have"; the court decertified the class, effectively ending the suit.)  The Supreme Court, which begins its 2013 Term in a month, might take a look at the situation in a case involving Facebook.  The company was the target of a class action for its Beacon program, which automatically broadcast users' purchases to other members.  The "parties" reached a settlement, but in this case that term apparently referred to the plaintiffs' lawyers:  they would receive $3 million, Facebook would pay $6.5 million to set up a charitable organization (which they'd control) to educate the public about Internet privacy, and the plaintiffs would get nothing.  The Supreme Court's been asked to review the case.

And a whole bunch of others; in fact, it's already granted review in about 50 cases.  We'll talk about the pending criminal cases on the Court's docket on Thursday.

I'm sure the Ohio Supreme Court will decide another criminal case in my lifetime, but that window is closing.  It came close last week, in In re D.S., which involved the question of whether the defendant's failure to respond to discovery tolled the time for speedy trial.  "Involved," not "resolved"; the court dismissed the appeal as having been improvidently granted.  O'Connor and O'Donnell dissented, the former's opinion providing a lengthy discussion of reciprocal discovery duties, and I probably would've read it more closely if it mattered.  Someday it might, and we'll discuss it then.

It's been three weeks since I did my last Case Update, so let's see what the courts of appeals have been up to in that time.

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