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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.

In State v. Brown, the police officer makes a valid traffic stop, and then has his drug-sniffing dog walk around the vehicle, as was his policy to do for every stop.  The 6th District upholds the search, finding that the stop was not unnecessarily prolonged; the sniff occurred about five minutes after the stop.  Hard to quarrel with the result, given that the courts have consistently held that a drug sniff is not a search within meaning of the 4th Amendment.  Earlier this year in Florida v. Jardines (discussed here), the Supreme Court threw out a search where the police had taken a dog up on the defendant's porch, but that was because, in the majority's view, the porch was part of the curtilage.  There's no curtilage in a car.

The 10th District confronts another recurring 4th Amendment issue in State v. Goodloe, specifically:  when does a consensual encounter become a stop?  When the police drove past Goodloe as he was waiting to cross the street, they noticed two bulges in his pockets.  They turned around, got out of the car, and went over and questioned him, eventually seizing a handgun he was carrying.  The trial court and the appellate panel relied heavily on the fact that one officer blocked Goodloe's path and the other came up to his side; this, the opinion concludes, "would communicate to a reasonable person that he was not at liberty to ignore the police and walk away," and would constitute a seizure.

There's currently a debate as to whether defense counsel has to object to the trial court's failure to make the statutory findings required to impose consecutive sentences; there's an argument that this means that the failure to make the findings can be reviewed for plain error.  That would be a problem, because plain error requires a showing of manifest injustice, and it might be a little difficult to show that running Joe Defendant's rape counts consecutively is manifestly unjust.  The 10th District gets around the problem in State v. Castlin by relying on its previous case law that imposing consecutive sentences without making the findings is plain error as a matter of law. 

You learn something new every day, in this case, what the "Bentley factors" are.  What happens if the judge fails to instruct the jury on accomplice testimony, and the defense doesn't object?  According to the 11th District in State v. Jackson, it's reviewed for plain error using the factors set forth in State v. Bentley, an earlier case from the district:  "(1) whether the accomplice's testimony was corroborated by other evidence introduced at trial; (2) whether the jury was aware from the accomplice's testimony that he benefitted from agreeing to testify against the defendant; and/or (3) whether the jury was instructed generally regarding its duty to evaluate the credibility of the witnesses and its province to determine what testimony is worthy of belief."  If the first factor and one of the other two are present, generally, failure to give the instruction will not be reversible error. 

Finally, a shout-out to the tough broads working at a Convenient Mart here in Cleveland.  As recounted by the 8th District's decision in State v. Gillepsie, Gillepsie walked into the store, pointed a gun at the clerk, and told her to give him everything in the register.  Instead, she slammed the drawer shut and yelled at him to leave.  Gillepsie wound up having to fight his way out of the store as that clerk and another tried to stop him.  He pled guilty to aggravated robbery and felonious assault, and the 8th District upholds the refusal to merge the offenses, deciding that Gillepsie's hitting the clerks was not done in furtherance of the robbery, but "were committed out of frustration due to the victims'reluctance to comply with appellant's demands."  

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