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Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


December 2013 Archives

Be back next week

Away for the holidays. I'll be back here on January 6. See you then.

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Four conversations

They've got a bunch of new prosecutors, and this one I hadn't met before.  My client Charlie and a friend had walked out of Macy's with merchandise worth $1,020, so I wanted a misdemeanor, a quest complicated by the 60 cycles on his rap sheet.  But then all that stood between him and that was a Jefferson, so when the discovery listed the items that were supposedly stolen, and each "price" was in round numbers -- $120, $300, $360 -- my suspicions were aroused.  I went up to Macy's and confirmed what any woman reading this post already knows:   In a store like Macy's, the price tag will always give the list price, and the list price will never be the price you pay for it; it exists only to persuade gullible customers that they're getting a really big deal by paying the "sale" price.  And I'd checked the statute before, and it describes value of retail or wholesale items as being the price the item is offered for sale.

So I was loaded for the bear for the pretrial:  had the pictures of the price tags on the stuff at Macy's, and a copy of the statute.  I sat down with the new prosecutor, prepared to regale her with why she needed to go back to her supervisor and tell him to give me the misdemeanor plea, because he'd never win the case at trial.  Our conversation was mercifully brief.  Before I could say a word, she said, "The file's been marked to a misdemeanor."

Charlie was sentenced on Monday to time served -- the two months in jail -- and I put in my fee bill right away.  I'd visited Charlie three times in the jail, I'd gone to four pretrials, and the trip to Macy's definitely put me over the cap of $500.

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What's Up in the 8th

The observation that the wheels of justice grind exceedingly slow is proven out by a pair of 8th District cases last week, State v. Nia and Cleveland v. WhiteState v. Jennings proves it's never too late to make an argument, while State v. Pettito proves that sometimes it is.  And State v. Bement and State v. Young prove that there are some cases judges just don't like.

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Case Update

While an opinion or two might be handed down before the end of the year, SCOTUS closed out its argument calendar last week, with White v. Woodall, being the lone criminal case.  At the penalty phase of Woodall's capital trial, the judge had refused to instruct the jury that they couldn't draw any adverse inferences from Woodall's failure to make a statement.  Something often missed by judges and attorneys is that a defendant's 5th Amendment right against self-incrimination survives a conviction, as the Court held in Mitchell v. USThat case, though, involved a judge drawing an adverse inference from silence in determining at a contested hearing the amount of cocaine Mitchell had distributed.  Here, the issue was remorse:  Woodall was contending that the failure to instruct the jury not to make any adverse inferences could lead them to impose the death penalty because they didn't believe Woodall was remorseful, and that's a mitigating factor.

Or could be; the argument meandered into issues like whether remorse was a mitigating factor or lack of remorse was an aggravating factor.  What's more, this was a habeas case, and although that word was mentioned only twice in the argument, it's likely to show up a lot more in the opinion.  Under the AEDPA, the habeas "reforms" passed by Congress in 1996, a petitioner must persuade a Federal judge not only that state court decision was wrong, but that it "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."  While Mitchell and several other cases have fiddled around the fringes of the question presented in Woodall, that the Court has never squarely addressed Woodall's situation might be the means of avoiding addressing it here.

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Holiday Roundup

Auto eroticism.  It was just what you needed to bust a big drug case:  a combination of fortuity, alertness, and teamwork.  Dayton Det. Raymond St. Clair was the one who spotted the suspect, Eric Flanagan, first.  He saw Flanagan driving on Xenia Ave., followed him in his unmarked car for ten or fifteen minutes, then watched as Flanagan pulled behind on industrial building.  It was about 8:20 in the evening, just when, as St. Clair testified, the sun was setting and it was "getting close to getting dusk." 

This wasn't the kind of thing a police officer would tackle on his own.  St. Clair stayed out of sight, approaching the south side of the building on foot, and peered around the corner, spotting Flanagan's car parked on the west side of the building.  Backup soon arrived in the form of three additional detectives.

They carefully plotted their attack, and all that tactical training at the police academy paid off.  St. Clair rushed the car on foot, while the other detectives raced up to it in two vehicles with their high beams on.

So how many kilos of heroin or crack or meth did the police recover?  Well, actually, all this wasn't done to nail Flanagan for dealing drugs.  It was to arrest him for getting a blow job in a car.

Charged with public indecency, Flanagan took the stand to deny that any sexual activity had taken place.  He explained that he and the young lady were friends and had simply gone behind the building to "talk privately and to drink beer," leaving unexplained why this would involve pulling his pants down to his knees, and having his ladyfriend with her head in his lap.  (The theory that she was merely resting took a hit from one detective's testimony that when he approached, the woman "became startled and sat up, exposing Flanagan's penis to the detectives.")

A jury convicted Flanagan, but it all goes away with the 2nd District's reversal last week in State v. Flanagan.  Noting that the statute requires that a defendant engage in conduct which "is likely to be viewed by and affront others who are in the person's physical proximity and who are not members of the person's household," the court concluded that there was "no evidence to support a finding that Flanagan engaged in such conduct under circumstances in which it was likely to be viewed by others," observing that only the "extraordinary efforts" of the detectives had allowed them to see it.

Besides the obvious profound precedential impact of Flanagan, one comes away from the case with several impressions:

  • Dayton detectives really, really, really do not have enough to do
  • The people in Dayton are a serious and hardy lot, because you couldn't get five minutes into this trial in Cuyahoga County without the lawyers, judge, and jurors giggling themselves stupid.

Here's a judge who never listened to Bob Dylan's The Lonesome Death of Hattie CarrollThere's a part of you that wants to feel sorry for Ethan Couch.  He's only 16 years old.  Then again, you definitely feel sorry for the families of Brian Jennings, Hollie and Shelby Boyles, and Breanna Mitchell.  Those are the four people Couch killed while driving with a blood/alcohol level three times the legal limit for an adult.

A lot of people are surprised to learn that the most you can get in Ohio for killing somebody while you're driving drunk is eight years in prison.  Of course, sometimes prosecutors get creative in their charging, or multiple victims allow consecutive sentences.  We've had a number of such cases here in Cleveland over the years; one woman drove the wrong way on I-71 for eight miles before plowing into a couple coming home from their wedding and killing them.  She wound up with 18 years, as I remember.  Couch is 16, but the newspaper stories describe one of the victims as a "youth pastor," and two of the four victims were in their early 20's.  Plus, a fifth passenger was left a paraplegic.  Frankly, I don't see Couch walking out of more than a handful of courtrooms across the street with less than a double-digit sentence. 

That's exactly what a Tarrant County, Texas, judge did last week, imposing on Couch ten full years -- of probation.

Various organizations annually anoint certain words as the new word of the year.  It was "hashtag" in 2012 for the American Dialect Society, while Oxford Dictionaries kept a stiff upper lip and designated "omnishambles."  I think it's safe to venture that "affluenza" will be on somebody's list for 2013.

That was Couch's defense:  he was raised by affluent parents who never set any boundaries for him, gave him everything he wanted, and never punished him for anything.  (The affluence part is undebatable:  one of the conditions of probation is that Ethan spend time in a $450,000-a-year treatment center, the cost of which will be borne by his father.)  The psychologist whored out by the defense used the term, and explained that as a result of his parent's gross over-indulgence, Couch lost the ability to behave responsibly.

The country was suitably outraged by the sentence, and I'm guessing Karma's going to come back with a roundhouse punch:  Couch was driving a truck owned by a trucking company, which is owned by Couch's father.  There are personal injury lawyers who would wet their pants at the prospect of trying a case like that. 

If this were an after-school special on the Disney Channel, the outcome would have been clear and simple:  The best way of teaching the vitally important lesson that actions have consequences is by showing that they do. 

But then life doesn't imitate art, it's the other way around.  And one of the things the Disney Channel doesn't teach you is that the man who said money can't buy happiness never sat in a courtroom.

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Judges and plea bargaining

I had a hearing a couple weeks back in Dayton, on a post-conviction relief petition I'd filed alleging ineffective assistance of counsel.  We'll talk about the details of that some later time, but what I found interesting was how the attorneys handle sentencings down there.  According to the attorney who handled my client's trial, he'll tell the client what he thinks the judge will do.  Then the judge will talk to the attorneys right before sentencing and tell everybody what he will indeed do.  If the attorney was off by a good margin -- prison instead of probation, near-maximum instead of minimum -- he'll ask the judge to vacate the plea, and the judge will.

I'd like to try that here in Cuyahoga County.  More on that later, too.

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What's Up in the 8th

Their time apparently occupied with exploring the various means by which turkey can be prepared, the 8th District's judges handed down only two decisions last week.  Both are worth a look, albeit the one barely.

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I'm moving the blog from one hosting service to another, so it was down for the last couple of days.  I'll have a post on the 8th District cases tomorrow, and the Case Update on Thursday,  We'll resume with the regular Monday through Thursday schedule next week.

Thanks for your forebearance.

Continue reading "Transitions..." »

Reading the tea leaves of State v. Washington

The Ohio Supreme Court's decision two weeks ago in State v. Washington was the first time the court's looked at the test it articulated three years ago in State v. Johnson for determining whether offenses were allied.  Washington is noteworthy not for what it holds, but for what it says. 

Let's get Washington out of the way first.  He'd led police on a wild car chase, then bailed after the inevitable crash and ran into the woods, where the police finally tackled him.  He was convicted of failure to comply and obstruction of justice, and at sentencing the State contended that there had been separate conduct - the failure to comply was the car chase, and the trek into the woods was obstruction of justice.  The judge agreed, and gave him consecutive time, but the 9th District, in a split decision, reversed, holding that the State couldn't argue that distinction at sentencing since they hadn't made it at trial.  That's an easy one:  allied offenses is a sentencing issue, not a trial issue.  The State isn't obligated to present evidence on the issue at trial.  The End.

Let's take a closer look, though.  We'll start with a...

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The vagaries of "harmless" error

Every appellate lawyer has his Harmless Error Horror Story, where the appellate court will discount the most egregious evidentiary ruling or instance of outrageous prosecutorial conduct on the "no harm, no foul" theory that the evidence was so overwhelming the error didn't matter.  A couple of weeks ago, in State v. Caldwell, a case I handled, I'd argued trial error in the admission of 404(B) evidence in a child molestation case.  The court agreed it shouldn't have come in, but  was harmless because of the "substantial testimony concerning the charges," an assessment brought into question by the fact that Caldwell had been acquitted of twenty-eight of the thirty charges against him.  (Not that I'm complaining; the court agreed with me that the judge had abused his discretion in refusing to accept Caldwell's plea to a handful of third-degree felonies, and ordered that Caldwell be allowed to enter that plea.  Whatever the sentence, it's going to be substantially less than the 25-to-life he had.)

I'm pretty sure that the 8th's decision last week in State v. Ceron is Terry Gilbert's Harmless Error Horror Story.

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What's Up in the 8th

I gave a presentation on constitutional issues at the OACDL's death penalty seminar a couple weeks back, and my advice on how to win 4th Amendment issues was simple:  move to Cleveland.  Combining a police force which has no more than a nodding acquaintance with the rudiments of search and seizure law with an appellate district which is the most 4th Amendment-friendly in the country is a sure-fire recipe for success.  For doubters of the latter point, take a look at the 8th's decision last week in State v. Fontaine.

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Case Update

As might be expected with the holiday, last week produced few decisions of note, or even of not-note:  only 81 appellate decisions, a full quarter of those from the 8th District; they'll provide fodder for my post tomorrow.  The big news from the Supreme Court was its acceptance of the "contraceptive mandate" case, determining whether the Affordable Care Act's requirement that employers providing health care insurance for their employees must have policies which cover contraceptives.  SCOTUSblog has a good analysis of the issues in the case, if you're interested.  Going forward, there's not much to look forward to:  the only argument in a criminal case this month pertains to the prosecution of a soldier for going on a military base after he'd been barred from entry by the commanding officer.  No, trust me, you don't want to know what the details are.

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