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November 2013 Archives

What's Up in the 8th

There are weeks when the 8th District comes down with a decision, maybe even two or three, which address major issues of law.  Other weeks, not so much.  Last week was an other week.  Still, the court's decisions usually provide a lesson, maybe even two or three.

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

Case Update

Well, that's a change of pace.  No oral arguments in the U.S. Supreme Court, and nothing happening other than a dissent to a couple of denials of certiorari.  On the other hand, the gang down in Columbus has come down with three - count'em, three - decisions in criminal cases over the past couple of weeks. 

The biggest was State v. Washington, which we'll talk about on Wednesday.  (Yes, I know I told you last Monday that we'd talk about it last Thursday, but then it's not the first time you've been disappointed in life, is it?)  State v. Holdcroft is the latest decision on the ever-fascinating topic of post-release control, and it features a new variation on what had become a clichéd theme.  Holdcroft was convicted of aggravated arson and arson in 1999, and received a 10-year sentence on the former and a 5-year sentence on the latter, to be served consecutively.  PRC was in its infancy then, with few decisions to guide trial judges, and as was so often the case, the judge screwed it up.  No one realized that problem until 2010, by which time Holdcroft had completed the sentence for the aggravated arson.  The judge nonetheless held a hearing and imposed the five-year mandatory PRC period for the aggravated arson, and the three-year discretionary period for the arson.

In numerous decisions, the court has held that PRC couldn't be imposed once the defendant had completed his prison sentence, but the trial court and 3rd District held that this didn't present a problem, since Holdcroft was still in prison.  But not on the aggravated arson, and so, by a 5-2 vote, the court holds that PRC couldn't be imposed on that count.  (Lanzinger concurs only in judgment, beating her well-worn drum that improper imposition of PRC shouldn't result in a "void" sentence.)

The impact of Holdcroft is obviously limited to situations where the defendant is serving consecutive terms, has completed one of them, and the uncompleted term involves a lesser PRC period than the completed one.  Completely unmentioned in Holdcroft is how the court determined that the aggravated arson sentence had been completed first.  As we'll see in a decision from the 8th District tomorrow, that's sometimes a tricky matter to determine.

RC 2945.75 requires that when the presence of additional elements makes an offense one of a more serious degree, the verdict must state either the degree of the offense or the additional elements; if it does neither, it serves as a conviction of only the least degree of the crime.  In its 2007 decision in State v. Pelfrey, the court held that the failure of a verdict form in a tampering with records case to include the fact that government were involved reduced the crime from a third-degree felony to a misdemeanor.  Last week's decision in State v. McDonald builds on that.  McDonald had led the police on a high-speed chase, and was indicted for failure to comply. 

That offense actually contains two sections.  The first simply prohibits failure to comply with an order of a police officer, and is a first degree misdemeanor.  The second prohibits operating a motor vehicle and "willfully" fleeing from the police after a signal to stop, and becomes a third degree felony if the jury determines that the operation of the vehicle caused substantial risk of serious physical harm to person or property.  The verdict form found McDonald guilty of "Failure to Comply with Order or Signal of Police Officer And Caused A Substantial Risk of Serious Physical Harm To Persons or Property." 

That's not enough for Pfeifer, who writes for the five-member majority:  "failure to comply" could mean a violation of either of the sections of the statute, and only the second can be a felony if elevated by the "substantial risk" element.  But French's dissenting opinion (O'Donnell dissented without opinion) has, I think, the better argument.  Jury verdicts aren't required to list all the elements of the offense; only when there is an aggravating element does that have to be included.  In short, the verdict form did not have to distinguish between the two sections, and since the aggravating element applied only to the second, and was found by the jury, that was enough.  Of course, the whole problem could have been solved simply by having the verdict form specify the degree of felony, and figure on seeing more of that.

Let's check out the courts of appeals...

Continue reading "Case Update" »

Crossing a judge

I pissed off a judge once.  Long time ago -- close to 30 years now.  I wrote something in an appellate brief about the "intellectual bankruptcy" of his position.  Cute phrase, huh? 

The judge didn't think so.  He found out about it, and suffice it to say that payback was a bitch.  And although he was theoretically only one of thirty-four judges, word gets around, and it was quite a while before I recovered from the damage.  I always wondered what it would be like if you were an attorney practicing in a small county that had only one or two judges.

Robert Bright found out the answer to that question. 

Continue reading "Crossing a judge" »

Let's Make a Deal

For a moment, it looked like Warren Caldwell had dodged a bullet.  He was charged with thirty counts of child molestation, including rape and kidnapping charges, the latter carrying sentences of 25 to life.  But the case wasn't a good one; there were any number of credibility problems with the alleged victim, Caldwell's stepdaughter, and so when the judge ruled that her previous false accusations of rape against an uncle would be admissible, the prosecutor cut bait, and the two sides presented a plea bargain to the judge:  Caldwell would plead to two counts of abduction and two of importuning, both third degree felonies, the latter requiring Caldwell's registration as a Tier I sex offender.

The judge refused to accept it.

The trial proceeded, and the prosecutor's fears as to the viability of her case proved well-founded:  the jury acquitted Caldwell of 28 of the 30 counts.  But it convicted him of one count each of rape and kidnapping.  The two merged, but that didn't really matter.  Off Caldwell went to do his 25 to life, instead of the maximum three years he would've done on any of the charges in the plea deal.

Last Thursday, by a 2-1 vote the 8th District held in State v. Caldwell that the judge abused his discretion in nixing the deal.

Continue reading "Let's Make a Deal" »

What's Up in the 8th

Joe grabs his twelve-year-old stepdaughter and runs his leg up her thigh as he tries to kiss her.  The stepdaughter pulls away, tells Mom, and Joe's charged with gross sexual imposition and kidnapping.  "Kidnapping" under Ohio law isn't what a layman would ordinarily think:  throwing somebody in a trunk, driving them across town, and sending a ransom note to the family.  Here, kidnapping is any restraint of liberty.  The jury, duly instructed, returns a verdict of guilty of both.  The gross sexual imposition is punishable by a maximum of three years; the kidnapping, by a sentence of ten years to life.  The State gets to elect which offense the defendant is sentenced on, and guess what?

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

Case Update

SCOTUS came down with one of its more liberal 4th Amendment decisions in 2006, holding in Georgia v. Randolph that the police can't use a co-tenant's consent to search a house if the other co-tenant is present and objects.  Last week, in the oral argument in Fernandez v. California, the defendant's attempt to expand that rule encountered substantial resistance.  When the police arrived at Fernandez' home in response to a domestic complaint, they found his girlfriend bruised and bloody.  Fernandez told them "I know my rights.  You can't come in."   The police arrested Fernandez for domestic violence, then returned later without a warrant and obtained the girlfriend's consent to search the house for evidence of a robbery, for which Fernandez was ultimately convicted.  Randolph was a 5-3 decision, and the same five-member majority is there, or with replacements (Sotomayor for Suitor, Kagan for Stephens) who would vote the same way, and those two plus Ginsberg expressed discomfort with the idea that the police can vitiate a co-tenant's objection by simply removing him from the scene.  But Kennedy and Breyer, who voted with the majority in Randolph, expressed deep misgivings about extending its reach, and it appears likely the Court will limit Randolph to physically present objectors.

The defendant in Rosemond v. US fared better in argument.  Rosemond had been convicted of aiding and abetting in the use of a firearm during a drug trafficking crime, and the instructions at trial allowed the jury to convict if he "actively participated" in the drug crime, and "knew his cohort used a firearm."  Everyone agreed that more is required, specifically, a showing that Rosemond had foreknowledge that a gun would be used.  Rosemond seems very likely to win on this narrow issue, but the Court's opinion could go a good bit further in defining what constitutes "aiding and abetting." 

The argument in Burrage v. US did not go well for the government, either.  Burrage was a heroin dealer, and after one of his clients died, he was prosecuted and convicted under a 1986 law which adds imprisonment up to life if the drug deal "results in death."  The doctors testified at Burrage's trial that they couldn't determine if the heroin caused the death, but the judge instructed the jury they could find Burrage guilty if the heroin contributed to the death.  Burrage's lawyer argued that the government had to prove "but for" causation - that the death wouldn't have resulted without the heroin use - and that it had to show that the death was foreseeable.  She fared poorly with the latter argument, but she had only to bat .500, and she seemed to:  the government's lawyer's insurmountable problem was that if the Congress had intended to allow the drug to be only a contributing cause, it could have plainly said so, instead of using the phrase, "results in death."

I'll have more on these when the decisions come out.

Down in Columbus, no oral arguments last week, but a bevy of them coming up.  Tomorrow will be Cuyahoga County Day, with two arguments scheduled on the intricacies of placing a defendant on community control  sanctions:  whether a court can impose a "time served" sentence -- releasing the defendant without placing him on supervision - and whether a pre-sentence report is required for to impose sanctions.  Thursday finds only one criminal case on the docket, but it's a bit more significant, especially to OVI practitioners:  a review of a 9th District decision affirming the trial court's determination that a motion to suppress in an OVI case wasn't sufficiently specific to warrant a hearing.

The court did come down with one decision, State v. Washington, its first real look at allied offenses since State v. Johnson three years ago.  We'll discuss that on Thursday.

In the courts of appeals...

Continue reading "Case Update" »

Coming Attractions

Doug Wine wanted to roll the dice.  When the judge presented the proposed jury charge in Wine's rape case, it included an instruction on the lesser offense of gross sexual imposition.  Wine's attorney objected, but the judge gave the instruction.  Sure enough, the jury acquitted Wine of rape, but convicted him of the lesser offense.  So last week, in State v. Wine (link is to video of oral argument, and that has links to briefs in the case, etc.),  the Supreme Court heard oral arguments on Wine's proposition:  that due process gives the defendant a veto right over whether an instruction on a lesser offense is given to the jury. 

The argument had some logical incoherence, because Wine's lawyer conceded early on that if the State had asked for the instruction, the judge would have been bound to give it.  Here, the judge had proposed the instruction sua sponte.  In fact, that appears to be the reason the court agreed to hear the case, and the lawyer's decision to concede that point was dictated by the fact that there are any number of decisions that say that the prosecutor has the right to seek one.  But it's tough to argue that your due process rights are violated if the judge gives the instruction on his own, but they're not violated if he gives it because the State asked for it.  From the looks of it, Wine's going to be hard-pressed to find any votes for his argument, let alone four.

Continue reading "Coming Attractions" »

Rolling the dice for your client

I'm wondering whether I should have just told Rico to take the case to trial. 

There was a lot at stake.  Rico, the police claimed, shot at some guy.  Rico was charged with attempted murder and felonious assault, both of which carried three year gun specs.  They'd merge, but that still meant that conviction of either of those offenses and the spec would mean a minimum of five or six years in prison.

But the case was garbage.  The physical evidence didn't match up with the victim's account.  The "victim" has been convicted of four drug charges, two of them trafficking.  His girlfriend claimed to be a witness, but she originally told the police that she had pulled into a neighboring driveway, from which she couldn't have seen anything.  There were two independent witnesses, but all they saw was a bunch of shooting, and from the way the report reads, it may have been the "victim" who was doing the shooting.

The deal was a plea to a count of attempted felonious assault, a third-degree felony, with no specs.  Rico had spent five months in jail already, and had only a couple prior misdemeanors.  Both of his brothers had been murdered, and he gave the prosecutor information on those cases; the prosecutor was going to come in and make a pitch for him.  And we had a good judge, so I was about as confident as I could be that Rico would get paper.

So what do I tell Rico?

And, depending on what I tell him, have I rendered ineffective assistance of counsel?

Continue reading "Rolling the dice for your client" »

What's Up in the 8th

I had an oral argument in the 8th a few weeks back, and one of the judges told me, "some of our cases indicate" something contrary to the position I was taking.  "That's one of the nice things about this district," I replied.  "You can find case law to support just about any position."  The judges laughed, because there's more than a little grain of truth in that.  Still, the judges are aware of their precedents, and seem to be developing consistency in various areas.

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

Case Update

SCOTUS issued its first criminal decision of the term last week in Burt v. Whitlow, which had offered the potential to expand upon the duties of a defense lawyer in plea negotiations, a duty the Court had established in a number of recent decisions.  Titlow had worked out a deal in a murder case to testify against the co-defendant in return for a 7-15 year sentence, but hired a new lawyer and withdrew her plea three days before trial.  Bad decision; she subsequently went to trial, was convicted, and was sentenced to 20 to 40 years.  The 6th Circuit held that her lawyer had performed deficiently by advising her to withdraw her guilty plea.

Unfortunately, as I pointed out when I discussed the case, there were all kinds of factual and procedural problems, not the least of which is that it wasn't clear her new attorney had advised her to withdraw her plea.  I said a summary reversal could be in the works, and it didn't come to much more than that; the opinions in the 9-0 decision (Sotomayor concurred, Ginsberg concurred only in judgment) clock in at a comparatively meager 15 pages.  Still, there's some interesting aspects in the opinions on the lawyer's obligations to his client regarding the plea/trial decision that are worth taking a look at, and we'll do that later in the week.

The Court also heard argument last week in Bond v. US, which I'd discussed before; the short version is that Bond, upset that her friend was having an affair with her husband, put some powder on her friend's doorknob, giving the friend a rash, for which Bond was prosecuted, convicted, and sentenced to six years in prison for violation of the Federal law implementing the Vienna Chemical Weapons Convention.  The justices found the case to be as absurd as the factual recitation indicates, with Alito noting that he might be prosecuted under it because he'd given out chocolate on Halloween; chocolate is poisonous to dogs, and the treaty bans chemicals harmful to animals as well as humans.

Liberals tend to be less troubled by the expansion of Federal government power in social policy, such as health and anti-poverty programs, but once you adopt a permissive attitude toward expansion of government powers, you find them expanding in areas you didn't anticipate.  The Federalization of criminal law has long been a concern, and It would be nice if Bond's case presented that single issue.  It doesn't; the central question is how far Congress can go in implementing a treaty.  Still, the decision to prosecute the case as a Federal matter was a moronic one, and if Congress' powers of implementation are curtailed as a result, that's fine by me.  Whoever gave the green light for this prosecution needs to learn what all prosecutors, who are vested with far more discretion than any actor in the criminal justice system, should:  you don't do something just because you can.

No decisions out of the Ohio Supreme Court, but there were oral arguments in a few, and the court accepted some new cases, so we'll talk about that later this week, too.  Let's head over to the courts of appeals and see what happened there.

Continue reading "Case Update" »

Teacher, teacher

You can't always predict the outcome of a case from the oral argument, but the operative word is "always."  Usually, you have a pretty good idea. 

Such was the case with Darius Clark.  He'd been convicted of abusing his 3-year-old son based on statements the boy made to detectives, social workers, teachers, and relatives.  The boy himself didn't testify; they judge found him incompetent.  The 8th District reversed, concluding that the statements should have been admitted, but the state appealed the exclusion of the teacher's statements, and the Supreme Court agreed to review it.

It fell to my buddy, John Martin of the Cuyahoga County PD's office, to defend the result, and his contention was a simple one:  since the teachers had a mandatory duty to report child abuse, they were agents of law enforcement, and therefore the boy's statements were testimonial under Crawford v. Washington

To say that John encountered resistance from the justices to this proposition is akin to noting that Custer ran into a few more Indians than he'd anticipated.  So hot was the reception Martin received that he quickly retreated to arguing that the statements should have been excluded under EvidR 807.  The topper, he told me, was when he came home that night, and was greeted at the door by his 9-year-old daughter, who had watched the argument on the court's cable station.  "Daddy, you lost," she merrily announced.

So last week, the Supreme Court came down with the decision in State v. Clark, and guess what?  By a 4-3 vote, they held that the statements of the teachers were excludable because the teachers, as mandatory reporters, were state agents under Crawford.

Continue reading "Teacher, teacher" »

What's Up in the 8th

My cup runneth over.  I come back from vacation to find that the 8th has used the interlude to do a decision dump:  some thirty criminal cases.  The court's timing was obviously motivated by the belief that I would be so overwhelmed that they might escape my scathing criticisms for another week.

I'm sure that was it.

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

Stay tuned

For the uncounted hordes of regular readers who have written me bemoaning the inability to satisfy their need for my regular musings about Ohio criminal law, good news:  come in off the ledge.  The paucity of recent posts has to do with three things:

Fat_Guy_Having_Trouble_At_The_Beach_2.jpg

1.  My vacation.  I've been gone for the last two weeks, in Maui.  We did the road to Hana, sunrise at Haleakala, and the blowhole at Mile 38 on the Honpaleani Highway (a sight, my wife confided to me, seemed vaguely reminiscent of someone she knew), and, of course, the beach.  I probably shouldn't have watched that rerun of Jaws just before I left; as this picture attests, even the combined efforts of these two beauties to coax me into the water proved unavailing.  Still, I've got a bitchin' tan, and you probably don't, so there.

2.  A transition with my blog.  I signed up with Justia to do a website and revamp my blog about a year ago, and, for a variety of reasons, it's proven to be an unhappy marriage.  (Something which, my wife confided to me, also vaguely reminds her of something.)  I'm going to be putting up a new website, and making some revisions to the blog.  Unfortunately, the transition has been a rocky one.

3.  To compound the problem, here at the office ago we switched to AT&T's uVerse internet service two weeks ago, which promised to provide twice the speed we were getting.  That promise fell short; on Monday morning, for example, we were getting no speed at all, and the tech they sent out has spent the day trying to fix it, finally declaring that the problem was in the line somewhere between our building and their main link, which apparently is located in some remote region of Paraguay.  They've promised to figure it out by Monday evening, but then again, see promise re speed, supra.

Anyway, we're starting the week a day late, but otherwise we're back in business.  The post below this is the Case Update, and tomorrow we'll have the 8th District summaries.  On Thursday, we'll take a look at the Ohio Supreme Court's surprising decision last week in State v. Tate, and on Friday... well, I'll come up with something.

Continue reading "Stay tuned" »

Case Update

No decisions from SCOTUS so far this year, but arguments in several criminal cases.  One was in Burt v. Titlow, which I discussed here.  The other was three weeks ago in Kaley v. US, which involves the increasing use of an "asset freeze":  if a defendant is charged with offenses which can result in criminal forfeiture, the judge can enter an order restraining the defendant's assets.  When the Kaleys, husband and wife, were indicted in a complicated case alleging that they planned to steal and then resell prescription medical devices, the judge froze their $500,000 certificate of deposit.  The Kaleys argued this prevented them from hiring the lawyers of their choice, and the issue is whether the trial court was required to hold a hearing to determine if there was probable cause for the indictment, and thus the restraining order.  The issue is more difficult than it might appear, because it allows the judge to essentially overrule the grand jury's finding of probable cause, and would also allow the defendants a shot at the government's case.  No clear outcome emerged from the argument, but Breyer's suggestion of a hearing of limited scope might find five justices in favor of it.

The Court granted cert in one other case, which should have substantial impact in death penalty cases.  Six years ago In Atkins, the Court held that executing the mentally retarded violated the 8th Amendment, but left it largely up to the states to implement the decision.  That's been an uneven process; Georgia, for example, requires the defendant to demonstrate retardation beyond a reasonable doubt.  Hall v. Florida, the case accepted two weeks ago, involves Florida's decision to implement a "bright line" rule:  the death penalty isn't prohibited unless a person's IQ is 70 or below.  Perhaps the most telling aspect of Hall's case, though, is not the issue of his mental capacity, but the fact that he's been in prison since shortly after the crimes were committed - 35 years ago.

The Ohio Supreme Court was also busy, handing down a decision last week in State v. Clark, involving the question of whether a 3-year-old's statements to his teachers about child abuse were testimonial under Crawford.  We'll break that down on Wednesday.  In another decision, State v. Wesson, the post-release control silliness raises its head again.  Wesson was convicted of aggravated murder with the specification that the crime was committed while the defendant was under detention, in this case, post-release control.  The conviction for which Wesson was placed on PRC was burglary, a second-degree felony, which would have required a mandatory three years of PRC.  Horror of horrors, the judge imposed a discretionary three-year period.  This meant that PRC wasn't validly imposed, which rendered its imposition void.  Last year, in State v. Billiter (discussed here), the court vacated the defendant's conviction for escape for failing to report to his parole officer because PRC had been improperly imposed.  The same logic applies to Wesson's case:  since Wesson's PRC was void, the specification that he committed the crime while under detention had to go, too.  Doesn't do Wesson any good; he was convicted of two other capital specifications, and the court affirmed his death sentence.

We've got about three weeks of appellate decisions to work through, so let's take a look...

Continue reading "Case Update" »

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