October 2013 Archives
Appellate lawyers will usually tell their clients that you can't tell what a court's going to do based just on the oral argument.
Oh, yes, you can. The Ohio Supreme Court swung back into action over the past couple weeks, holding argument in three criminal cases, and if there's a surprising outcome when the decisions come down in a few months, I'll be... well, surprised.
Given that the outcome in the vast majority of criminal cases is a sentencing -- over 95% of cases are resolved with a plea bargain -- it's not surprising that a lot of appellate cases deal with sentencing issues. Three decisions on that issue came out of the 8th last week, plus one on a search issue, and the coda in the Williams case on 404(B) evidence.
There were a number of questions left open by the US Supreme Court's decisions last year in Missouri v. Frye and Lafler v. Cooper, which extended the duty of effective assistance of counsel to plea bargaining. Both cases, along with the decision two years earlier in Padilla v. Kentucky, offered clear examples of affirmative misadvice or negligence, and in all three cases the State conceded the deficient performance prong of the Strickland test. That doesn't do much in the way of defining the lawyer's duty. Do I have an obligation, say, to advice my client, who is pleading to a child rape with a life sentence and parole eligibility of ten years, that the "ten years" is meaningless: he's going to do two to three times that, if he ever gets out. A judge doesn't have to tell a defendant in a plea colloquy of the possibility of consecutive sentences; does the lawyer have the obligation to tell his client of that? And if he doesn't, and the defendant gets consecutive sentences, can the plea be vacated for ineffective assistance?
Burt v. Titlow offered the potential to give some further definition of the lawyer's role. Titlow helped her aunt murder the aunt's husband, and her attorney negotiated a plea to voluntary manslaughter with a 7-15 year sentence, conditioned on her testifying against the aunt. A sheriff's deputy advised her not to plead guilty if she wasn't guilty, and this sage advice prompted her to retain a different attorney, who quickly withdrew her plea. Oops. The aunt went to trial and was acquitted, Titlow was tried and convicted of second-degree murder, and sentenced to 20 years.
Unfortunately, the simple question - can the lawyer's advice to withdraw the plea serve as a claim of ineffective assistance? - is beset with problems, as the oral argument last Tuesday demonstrated. The record's a mess; it's not even clear that the lawyer (who was subsequently disbarred, for this among other things) advised her to withdraw the plea. Plus, the case comes up on habeas review, with the attendant highly deferential standards for review by the federal courts. And even if Titlow was granted relief, it's not clear what that would be. In Lafler and Frye, the Court remanded for the trial court to determine whether the defendants there would have taken the plea deal. That's not an option here; the aunt died, and thus a key aspect of the bargain, Titlow's testimony against the aunt, can't be performed.
I'll write more about the case when the decision comes down, if that happens; a summary reversal could be in the works.
The Ohio Supreme Court had oral arguments, too, last week, with a case on wrongful imprisonment, double jeopardy, and the enticement statute. I'll have a rundown on those on Thursday. Thursday will also be my last day posting for two weeks; time for some R&R.
In the courts of appeals...
Over the last couple of months, I've written a number of posts about the proposed reforms to the indigent defense system here in Cuyahoga County. (For those of you who can't seem to get enough of my keen wit and lucid prose, click on Indigent Defense over in the bar on the right under Topics, scroll down to the post of August 8, and read up from there.) That's not the only proposal on the subject out there, though; there's a bill in the legislature that would radically change the way indigent defense is handled in the entire state. You can read the proposed bill here. (No keen wit and lucid prose, trust me.) You can read the legislative summary of the bill here. You can read my summary, and my take on it, here.
Your client is charged with drunk driving, with a prior conviction in the past twenty years. Actually, he's got three of them. The State has to prove one; that's an element of the offense. You offer to stipulate to one of the prior convictions, but the State says no, they want to put on evidence of the prior. Did we say "prior"? Oops, make that "priors." That's right, the State wants to introduce all three convictions.
Certainly this isn't fair, you tell the judge in your motion in limine. He doesn't have a problem with it, deciding that allowing the State to introduce all three convictions wouldn't "confuse the issues in the case, mislead the jury, or constitute unfair prejudice."
So you prepare the jury for that in voir dire, telling the jury about the three priors. They're going to find out about it, so you try to get across the idea that they'll need to set that aside.
And last week, the 9th District held in State v. Adams that it wouldn't even review the issue of whether the judge should have allowed the prosecutor to use all three convictions because you made a "strategic decision" to tell the jury about them, and that "because the jury was fully aware at the start of the trial that Adams had three prior OVI convictions, there was no unfair prejudice by admitting evidence of those convictions."
As they say in the movies, the following is based on a true story. Two gangs get into a fight; A fires into the crowd. B, a member of that crowd, shoots back, but winds up killing C, also a member of the crowd that A shot into. Can A be prosecuted for murder?
Hypothetical No. 2, also based etc. A and B kidnap someone. The police arrest A. Several hours later, they find B, who has the victim tied up in a car. B pulls away, trying to escape, and is killed by the police. Can A be prosecuted for the policeman's killing of B?
Welcome to the felony murder rule.
The only nondysfunctional branch of government begins its 2013 Term this morning. The Federal courts have enough money to run through October 10, and it'll be longer than that before they shutter the Supreme Court. But with the shutdown fight merging into the debt limit fight, there's that possibility.
There's an argument that the Supreme Court isn't functional, either, that it's far exceeded the role contemplated by the Framers. There's no little truth to the observation that for the past 25 years, America has been a country run first by Sandra Day O'Connor and then by Anthony Kennedy. Dahlia Lutwick has a superb article in Slate, outlining how O'Connor's replacement in 2005 by Sam Alito has shifted the court sharply right on five major areas of constitutional law: abortion, affirmative action, campaign finance reform, church/state relations, and congressional power to remedy discrimination. You could make a pretty good argument that 2016 will be one of the most important presidential elections in our lifetime, if only because the winner will very probably get to select the person who replaces Anthony Kennedy, who will be 84 when that presidential term ends.
And it's likely to get worse, assuming that a supposed democracy being run by nine people appointed for life is "worse." The Framers spent little time on the judiciary branch; perhaps the best indication is that the simple question of whether the Supreme Court can declare a law of congress unconstitutional seems to have escaped them. They were far more worried about the Executive branch seizing power, so they set up a complicated system of checks and balances with Congress to make sure that couldn't happen. But that means to get anything done, both sides have to work together. That's not happening, and barring some major event, I don't see that changing. Politics, like nature, abhors a vacuum; if the other two branches don't do anything, the Supreme Court, to the extent that it can, will step into the breach.
Nothing out of Columbus, so let's see what the courts of appeals have wrought over the past week.
Money woes. In the summer of 2012, when Congress couldn't come up with a budget, they decided to place six congresscritters from each party in a room to do so, with the threat if it didn't happen, sweeping cuts would be made in both defense and discretionary domestic spending -- which was called "sequestration" -- on the theory that nobody would want that, and the two sides would forge an agreement. As we all know, that's exactly what happened, along with world peace, and end to hunger, and the televised executions of the Kardashian sisters and Justin Bieber.
Well, no, it didn't happen, and a number of articles have been written about the disastrous effect sequestration has had on the public defender system. According to this article in the Washington Times, the government shutdown, which started two days ago, might have a similar effect on prosecutors.
Some FBI agents and federal prosecutors face furloughs if the government shuts down Monday night, and Attorney General Eric H. Holder Jr. said he would take a voluntary pay cut because of political "dysfunction."
That may not be the only source of worry for prosecutors concerned with career longevity: a few weeks ago, Holder ordered a shift in policy, instructing prosecutors not to indict on mandatory minimum drug cases if the offender met various criteria: they couldn't have ties to a cartel, didn't have a record of violent offenses, didn't use a weapon, and didn't sell drugs to children. I'm not sure how strictly the policy has been implemented -- I have one of the nearly six dozen defendants rounded up in the latest drug bust here in Cleveland, and he's 63 years old and sold a total of 7 grams of heroin -- but it could certainly have some effect. I ran into a federal prosecutor at a seminar recently who told me that his office expects to see 60% fewer drug indictments by next year.
One of the realizations from the Anthony Sowell case here in Cleveland back in 2009 was that the City Police Department didn't have a very positive view of women, especially those claiming to have been raped. Two years before the police would discover eleven bodies in Sowell's house and yard, a woman came to the police, alleging that Sowell had raped her. The cops went to Sowell's house, but did nothing otherwise to pursue the case; the police chief later told newspapers that although the officers found blood in the home, they couldn't tell who it belonged to, causing me to lament at the time that it was too bad science hadn't come up with a way to test that. Shortly after Sowell's eventual arrest came the news that the police department had several thousand rape kits, accumulated over the last couple of decades, which they'd never gotten around to testing.
Reading the week's 8th District's opinions can be an exercise in drudgery. (Hence, this blog's motto: We read the opinion so you don't have to.) That's not a slight on the judges; cranking out an opinion or two a week doesn't give rise to much occasion for creativity, and there's only so many times you can regurgitate the standard of review for manifest weight and sufficiency of the evidence, or explain what's required for consecutive sentencing, or recite one more time that a plea withdrawal has to be based on something more than a change of heart. It's not for nothing that one commentator called judicial opinions the worst body of literature ever produced in the history of mankind.
But this week we have three interesting opinions on three relatively uncommon issues, so while that might not exactly call for the donning of party hats and favors, it's something.
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