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January 2014 Archives

Anonymous tips and drunk driving

For those of you looking for confirmation of the late Chief Justice Renquist's observation that search and seizure law is something other than a seamless web, ladies and gentlemen, I give you last week's argument in Navarette v. California.

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Review of sentencing goes bye-bye

A couple weeks back, I discussed the oral argument before the Supreme Court in State v. Bonnell, which focused on the issue of how to achieve meaningful appellate review of consecutive sentences.  Last week, in State v. Thompson, the 8th District came down with a decision which largely forecloses meaningful appellate review of any sentence.

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What's Up in the 8th

Imaginary conversation between Lorenzo Thigpen and his appellate lawyer:

"Well, Lorenzo, I've got good news and bad news."

"What's the good news?"

"The court of appeals has decided you get to represent yourself in your aggravated murder trial."

"Great!  What's the bad news?"

"You get to represent yourself in your aggravated murder trial."

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Case Update

Back in 2000, in Florida v. J.L., the Supreme Court held that an anonymous tip that a person was carrying a gun wasn't sufficient to allow the police to stop and frisk the individual without having observed some corroborating information.  Last Tuesday, the Supreme Court heard oral argument in Navarette v. California, on whether an anonymous tip that somebody was driving drunk could allow the police to stop the driver without having observed any corroborating evidence, such as erratic driving.  Although this would seem to fit clearly within J.L.'s framework, but when it comes to 4th Amendment law, there's not a whole that's "clear."  I'll have a post on the oral argument on Thursday.

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Domestic violence after McGlothan

Although the domestic violence statute was initially aimed at spousal abuse, the frequency of other "living arrangements" has led to it being applied in a broad range of situations.  The statute prohibits violence against a "family or household member," and that's defined to include a "person living as a spouse," which is then defined to mean a person who is "cohabiting with the offender."  Back in 1997, in State v. Williams, the Supreme Court defined what cohabitation meant.  Last week, in State v. McGlothan, the court refined that definition further.  Spoiler alert:  the defendant loses both times.

Let's take a look.

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What's Up in the 8th

Due in large part to "cold case" funding by the Feds, and the belated effort to clear up the backlog of rape kits that have been sitting around the Cleveland police evidence room for much of the past twenty years, we've had a big upsurge in rape cases here.  Two decisions by the 8th District last week could have a major impact on how those come out.

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Case Update

A big 4th Amendment battle looms at SCOTUS, the 8th District has a bad week in the Ohio Supreme Court, and appellate cases on reducing sentences, limitations on resentencing in allied offense cases, and good news/bad news for Tomas Aquino: he gets to stay in this country when he gets out of prison, but he has to stay in prison for a while longer.

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State v. Tate

You're defending a client charged with domestic violence, and he's got two priors for that crime, making it a third degree felony.  The prosecutor asks you if you're willing to stipulate to the prior convictions.

Before you decide, you need to take a look at the Ohio Supreme Court's decision yesterday in State v. Tate.  

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Drug Legalization


On your left is a document that probably won't make it into the National Archives, but maybe should.  It's the receipt for the first legal purchase of purely recreational marijuana in this county.  It was given to Iraq War veteran Sean Azzariti for his purchase of an eighth (about 3.5 grams) of Bubba Kush.  With tax, it cost $59.74.  That's a bit on the high side, no pun intended; according to Price of Weed, a web site created to provide a "global price index for marijuana" and allows users to anonymously submit data regarding their latest transaction, an eighth of high-quality marijuana is going for $50 in Lubbock, Texas, and Las Vegas.  And Bubba Kush doesn't quite fall into that category:  the good folks at StrainSpot give it only a 7.5 rating ("flavor" gets an 8.5, but "head effects" clocks in at a disappointing 6.4), below the 8.1 garnered by the Space Queen Marijuana Strain, which was only good for 6th place on StrainSpot's list of the top 10 of all time. 

The year before I graduated from law school, people were sentenced in Ohio to 20 to 40 years in prison for possession of a couple of joints.  How did we get from there to here? 

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What's Up in the 8th

Everybody loves a second chance.  Darrick Jones is going to get a third one, Reggie Lee ran out of them, Virgil Hill isn't going to get one, and Baltek Randhawa is going to get one, even though maybe he shouldn't.  

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Case Update

There's a tendency among criminal lawyers to focus on how substantially the US Supreme Court's decisions have affected their practice, but the Court's grant of certiorari in eight cases last week serves to remind us of the breadth of the Court's jurisdiction:  two patent cases, one involving Argentina's default on its debt, and one involving Internet streaming of television shows.  The closest thing to a criminal case is one involving whether a Federal Court has to hold a hearing to determine if the IRS can demand tax data by issuing a summons.   

In fact, the month ahead isn't going to offer much in the way of criminal cases, either.  There's one to be argued on Wednesday, US v. Castleman, about the Federal statute's bar on gun ownership by one convicted of a misdemeanor offense of domestic violence.  The statute defines a misdemeanor crime of domestic violence as one which has as an element "the use or attempted use of physical force."  As those of us who have handled such cases know, the "force" necessary for conviction can be minimal; as the district court in Castleman put it, many such statutes use "force as a scientific concept relating to the movement of matter."  That court, and the 6th, held that the statute requires "force in the sense of violent contact."  Haven't read the briefs, haven't heard the argument, but I'm taking the government and giving the points.

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Findings for consecutive sentences

It wasn't until the 13:52 mark in the oral argument before the Ohio Supreme Court in State v. Bonnell that anybody addressed the real issue in the case, in a question posed to Bonnell's lawyer by Justice O'Neil:  "Counsel, what you're really advocating here today is meaningful appellate review" of consecutive sentences.  Whether the court's ultimate decision will be a step toward that is anybody's guess.

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Gold Rush

Well, we got our raise.

The last time assigned counsel fee caps were increased in Cuyahoga County, the Berlin Wall was still standing.  The caps limit the amount of fees which can be paid on any particular case, regardless of how much time you spend on it, and the caps are among the worst in the state; only eight counties have lower ones.  The result is that you can spend a week in trial on a third degree felony and get 600 bucks for your trouble.  A lawyer in Dayton, Columbus, or Youngstown would get paid five times that much.

Everybody agreed that the rates were an abomination, even Prosecutor Tim McGinty.  When an independent study commissioned by him recommended that the caps be tripled, he conceded at a public meeting on the study that "anyone who thinks the fees shouldn't be raised doesn't know what he's talking about."  The CCDLA, the local criminal bar, had been working with the judges on the fees even before that, so it was just a matter of time and how much.

So the time's here -- or will be, on March 1.  So how much did we get?

Well, let's not figure on moving up your retirement date, Sparky.

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What's Up in the 8th

The average American spends a little over five hours a day watching television.  Malik M. Al-Dor should watch more of it, especially crime shows.  Criminal trial lawyers in Cuyahoga County are a sorry lot, at least according to criminal appellate lawyers.  And one other thing we learn from the spate of decisions from the 8th District over the past two weeks - besides the fact that the number of them in 2013 declined by 13% over 2012 - is that New Year's is a more... um... challenging holiday than Christmas:  the court spewed out 19 decisions the day after St. Nick's visit, but mustered the strength to dispense only one the day after the ball fell on Times Square.  Make of that what you will.

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Case Update

Just over four years ago, in State v. Smith, the Ohio Supreme Court held that the police couldn't search the cellphone of an arrestee without first getting a warrant.  It was a pro-Fourth-Amendment decision from a court that has not been noticeably solicitous toward defendants on that issue, made even more surprising by the fact that many courts which have considered the issue have come to the opposite conclusion.  SCOTUS may weigh in:  on Friday, the Court's first conference of the year, it will consider not one, but two petitions concerning that question.

The Court will be resolving one issue which has generated a lot of controversy.  At the end of the month, it will hear oral arguments in Navarette v. California (link is to the SCOTUSblog page for the case).  In 2000, the Court held in Florida v. J.L. that the police couldn't stop a suspect based upon an anonymous tip, unless they were able to corroborate some of the incriminating aspects of the tip.  The courts have nonetheless frequently ignored that when it comes to enforcing drunk driving laws.  That's what happened to Navarette:  the police received an anonymous tip about a possible intoxicated driver, followed the suspected offending car for five miles and, despite not observing any erratic driving, pulled the driver over.  Besides presenting an interesting 4th Amendment issue, the case illustrates that the route to the High Court can have humble beginnings; Navarette's lawyer is a sole practitioner, none of the decisions in Navarette's climb up the appellate ladder were even published, and the State of California didn't deign to file a response to the petition for certiorari.

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