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.
The Ohio Supreme Court recently took in a case of mine, State v. Castagnola. I'd lost a motion to suppress down in Summit County, an event captured for posterity in this post, and the 9th District affirmed by a 2-1 vote. When the Columbus Seven accepted the case (by a 5-2 vote), I figured I was in good shape: why would the court accept the case if it was only going to affirm the lower court? And then last week the court came down with its decision in State v. Keck, unanimously affirming the 4th District's unanimous affirmance of Keck's conviction.
Actually, Keck suggests that the court's vetting procedures could use a tune-up. On the surface, it presented a key issue, on the scope of Crawford as it applies to scientific testimony, specifically, whether
The Confrontation Clause prohibits the State from introducing testimonial statements of a nontestifying forensic analyst through the in-court testimony of a third party who did not perform or observe the laboratory analysis on which the statements are based.
You could spend a lot of time talking about that, and the court's opinion does, but for little discernible purpose: the defense at trial had stipulated to the admission and content of the report. Well, that certainly changes things, doesn't it?
Still, Keck is cause for worry. SCOTUS has skirted around this issue since its initial holding in Melendez-Diaz v. Massachusetts that scientific reports could be considered "testimonial statements" under Crawford. The Court confronted an issue similar to Keck in Bullcoming v. New Mexico, holding that a report for a blood/alcohol test couldn't be introduced through the testimony of an analyst who performed similar tests, but who hadn't performed that one. Then two years ago in Willilams v. Illinois (discussed here and here), a plurality of the Court upheld the admission of a DNA profile done by an outside laboratory, without the testimony of anyone from the lab. Lanzinger's opinion in Keck spends a bit too much attention on Williams, and gives it a bit too much deference, given that (1) the plurality didn't decide the case on Confrontation Clause issues, but held that it was unnecessary to do so because the report wasn't being submitted for its truth, and (2) the other five Justices, including Thomas, who concurred only in judgment, thought this was just too goofy for words.
So, anyway, a cautionary note to keep my exuberance in check, and on to the courts of appeals...
The 9th District's decision in State v. Parham serves as a lesson on search and seizure law. The police got an anonymous tip that a black male was selling drugs to children near a certain address. They go to the scene and spot Parham, whose clothing matches the description given by the tip. They approached Parham, patted him down, and found a "prominent bulk" in the pocket of his vest, which turned out to be a bag containing packages of marijuana. On appeal, Parham argues that the bag could've been a legal substance, but the law is that if the object is "immediately identifiable" as contraband it can be seized, and the officer testified to just that.
So what's the problem? The cops had no right to make a stop, let alone a frisk; an anonymous tip can't furnish the basis for a stop unless the incriminating aspects of the tip can be corroborated by the police. That's never raised in the appeal, and what might have been is indicated in the opinion concurring only in judgment: "Based upon the limited argument advanced in the appellant's merit brief, the trial court did not err in overruling the suppression motion."
In adjudicating ineffective assistance of counsel claims, the courts give attorneys a lot of leeway in the area of "trial strategy and tactics," and just how much is demonstrated by the 8th District's decision in Cleveland v. Crutcher. Crutcher went to the Justice Center to turn himself in on a charge of domestic violence, and had apparently prepared for this by drinking intoxicants to the point of near-stupefaction. When told by the deputies that he'd have to go to the adjacent police headquarters, he left, only to return minutes later. He started throwing various items through the metal detector, and one thing led to another. As usually the case when some of the participants in those imboglios carry a badge and a gun, the "another" was Crutcher's arrest, for public intoxication, resisting arrest, and criminal trespass. The three deputies testified at trial - the only witnesses the city prosecutor presented - but defense counsel chose to cross-examine only one. The Court actually believed that none of the three were cross-examined, but nonetheless finds no problem: decisions about cross-examination are "strategic in nature and will not support an ineffective assistance of counsel claim," and "it is this court's opinion that there was nothing to gain from further questioning of the witnesses."
"Further"? How about "some"? "Any"?
The most interesting case I've read, though, was one from the 6th Circuit, US v. Ladeau. Ladeau had been charged with possession of child pornography, which was punishable by up to ten years in prison. After he won a motion to suppress, the prosecutor obtained a superseding indictment, charging him with conspiracy to receive child pornography, which was punishable by up to twenty years in prison, with a minimum of five. (Conspiracy to possess would have carried the same punishment as the possession charge, with no minimum mandatory.)
I've read plenty of decisions on judicial vindictiveness -- a judge giving a defendant a stiffer sentence after a successful appeal -- but decisions on prosecutorial vindictiveness are uncommon. If you've got a potential claim along those lines, Ladeau is a treasure trove of law on the issue. Critical to the outcome here were two factors: the increase in the severity of the punishment, and that fact that the government was relying on the exact same evidence it had had in its possession for the thirteen months that the case had been pending.
A Fistful of Dollars. In State v. Tyler, the police get a search warrant for a house after observing various indicia of drug trafficking, and when they execute it, they encounter Tyler, who flees and is apprehended shortly thereafter, hiding in a neighboring garage. His claim that he had nothing to do with the targeted house is rejected by the 8th District, the panel pointing to the damning evidence: on the mantle was a picture of Tyler "holding a lot of money in his hand with the sign 'Hood Rich' in the background."