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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 »


March 2014 Archives

Case Update

When is domestic violence violent?  That was the basic issue in the Supreme Court's decision last week in State v. Castleman.  Castleman had moved to dismiss his Federal indictment for possessing a gun while having been convicted of a "misdemeanor crime of domestic violence."  The District Court and the 6th Circuit bought his argument that the misdemeanor crime, which involves "the use or attempted use of physical force," requires "violent contact" to fall within the Federal firearm prohibition.  SCOTUS wasn't buying, though, and reversed.  The 6th Circuit had relied heavily on the Supreme Court's decision four years ago in Johnson v. US, in which the Court held that a conviction for simple battery did not count as a conviction of a "violent felony" under the Armed Career Criminal Act.   Sotomayor's opinion in Castleman, which is heavy on statistics about domestic violence and guns, easily disposes of that contention; among other things, while it's unlikely that Congress meant to incorporate the common-law meaning of "force" into the definition of "violent felony," it is likely that "Congress meant to incorporate that misdemeanor-specific meaning of 'force' in defining a 'misdemeanor crime of domestic violence.'"

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Friday Roundup

Block that metaphor.  Here's a tip.  If you happen to be pleading with the judge not to sentence you to prison for beating up your wife for the second time in three years, it's probably not a good idea to tell the judge you're "willing to fight the good fight." 

Here's another one.  If you're a prosecutor who's five months pregnant and you reject an offer where the three co-defendants would plead to different charges, you probably shouldn't say, "I don't think our office is willing to split the baby like that."

Honest to God.  Both of them in the same week.

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Attorney independence

Here in Cuyahoga County, indigent defendants are assigned a lawyer by the judge who's in the arraignment room that week.  Some judges, very few, just go down the list of lawyers who are on the assigned counsel list one by one.  Other judges pick whoever they want from that list.

County Prosecutor Tim McGinty sees this as a system where criminal defense lawyers make contributions to judge's campaigns in return for criminal assignments.  He's right.  That's exactly what happens.

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Rocking the boat

I'm going to file a motion for extraordinary fees in that rape trial I won last week, and I'm probably going to piss off a few criminal defense attorneys when I do that.

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What's Up in the 8th

If you lose your trial, you'll have a tough time getting that reversed on appeal.  If you lose your appeal, you'll have an even tougher time changing that outcome in post-conviction relief.  Reno Woodard, Maurice Jackson, and Matthew Warmus found that out last week. 

Marcus Blalock, though, might get lucky.

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A rush to death

Dennis McGuire was the last man to be executed in Ohio.  The manner of his demise generated debate.  McGuire was a guinea pig for the new drug Ohio uses to kill people, and things didn't go well:  according to witnesses, McGuire appeared to gasp and convulse for over 20 minutes before succumbing.   To the dwindling band of death penalty supporters, the problem was not what happened on the gurney, it was McGuire's lengthy route to it:  he'd committed the crime for which he was executed a full quarter century before.

Not that we haven't tried to shorten that.  Back in the 1994, Ohio passed the Death Penalty Appeals Amendment to the state constitution, which mandated that all death penalty appeals go directly to the Ohio Supreme Court, bypassing the district court of appeals.  Two years later, Congress passed the Anti-Terrorism and Effective Death Penalty Act (AEDPA), greatly limiting the availability of the "Great Writ" of habeas corpus, in an attempt to stop federal courts from putting up roadblocks to execution. 

And so we come to the oral argument two weeks ago in the oral argument in the Supreme Court in Hall v. Florida.  

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Friday Roundup

Isaac was charged with three counts of rape, one of aggravated robbery, and two of kidnapping, all with three-year firearm specs.  They were offering us one rape and one attempted robbery, each with specs.  The offenses wouldn't have merged.

If it hadn't been for the video, I probably would have told Isaac to take the deal.

The 21-year-old girl's version was that Isaac, a black boy of 17, came up behind her on the street and put a gun to her.  He took her purse, then told her to walk like they were a couple.  He took her behind a warehouse and raped her orally, vaginally, and anally, then walked her back out, where he let her go.  She ran to a local store, called her boyfriend, and he and his roommate picked her up and drove her home.  Her father called 911, EMS and the cops was there in minutes, and she was taken to the hospital.  Three months later, she picked his photo out of a lineup, saying she was 60% certain it was him.

Not the worst case to defend, except for the part where I have to explain why they found semen with his DNA in her butt.

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A new look at aiding and abetting

Joe and Larry go to make a drug deal.  The buyer carefully inspects the pound of marijuana Joe and Larry intend to sell him, but instead of paying for it, he punches Larry in the face, grabs the drugs, and takes off running.  Joe pulls out a gun and fires off a couple of shots at the fleeing would-be buyer, and that's when the cops show up.  Joe's charged with drug trafficking and felonious assault, each with a three-year firearm specification, and so is Larry.  After all, even though Larry didn't have the gun or fire the gun -- he may not have even known Joe had a gun until he discharged it -- he was an accomplice to the crime. 

Maybe not.

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What's Up in the 8th

Sometimes you win an appeal, and sometimes you WIN an appeal.  When you not only get the defendant's conviction and three-year prison sentence reversed, but get the case kicked out altogether, that's a WIN.  

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Case Update

A decision from SCOTUS in a criminal case, Rosemond v. US, in which Justice Kagan gives comprehensive, and at times colorful, treatment of the issue of complicity.  Although Rosemond was convicted under a Federal statute relating to use of a firearm in a drug trafficking crime, the opinion doesn't focus on that, instead honing in on the concept of mens rea:  did the defendant know, and thus intend, that a gun would be used?  It may well have broader application, to things like the firearm specifications under Ohio law.  We'll take a closer look at that later in the week.  (Speaking of which, only four posts this week:  I'm in a rape trial, have a brief due in the 8th on Wednesday and the Supreme Court the week after, and...  Oh, who am I kidding?  I'm going to kick back and binge-watch the second season of House of Cards.  So there.)

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Friday Roundup

They blinded me with science.  I've been hanging out on a political forum for the past twenty years, and it used to be that I'd have to go over to the library if I wanted to research some issue like gun control or capital punishment.  That's so fifteen minutes ago; if you can't find it with Google, it doesn't exist. 

And not just news or political issues.  Let's say, for example, that you wanted to find out whether that marijuana joint a day is not only slightly addling your mind and making a bag of Doritos seem like the Holy Grail, but increasing the risk of your getting lung cancer.  What you'd do is swing by the National Center for Biotechnology Information database, a search engine which allows you to download thousands of peer-reviewed papers on virtually any subject pertaining to "biomedical and genomic information."  In fact, get a box of Oreos, put some Zeppelin on, and kick back and prepare to become informed.  Because there's twenty thousand articles on marijuana alone.  And you'll be relieved to know that while your habit may make holding a steady job more challenging, you don't have to worry about spending your end days coughing up chunks of your lung.  The largest study ever done on the subject, which included people who'd smoked more than 22,000 joints over their lifetime, found that there was no association between Mary Jane and getting lung cancer.  In fact, not only is there no indication of correlation between the two, but smoking an occasional doobie might actually have a protective effect.  Just think:  toking away so you can engage in those pointless hours-long debates about which was the worst rock group of the 1980's will also protect you from the Big C. 

So here's the head of the National Institutes of Health, which runs the Biotech Information database, speaking at a dinner last week:

We don't know a lot about the things we wish we did [with respect to marijuana].  I've been asked repeatedly, does regular marijuana smoking, because you inhale deeply, increase your risk of lung cancer? We don't know. Nobody's done that study.

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Ethically dishonest

There are a lot of ways to tell when a marriage just isn't working out.  You don't talk anymore, you don't share experiences, there's a lack of intimacy, you grow more distant from each other...

Two felony domestic violence cases in three years is also a pretty good indicator.

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What's up in the 8th

It's become more common in appeals from guilty pleas to see an assignment of error that the judge failed to inform the defendant of the effect of pleading guilty, and so it is in State v. WilliamsI've always had a hard time following this if, as here, the claim is unaccompanied by any reference to the transcript where the defendant expressed some lack of comprehension.  I mean, you're pleading guilty.  What, you think it means you're going to win a toaster?  Williams nonetheless provides one of the two "wins" for defendants this week; the State concedes that Williams' offenses, attempted murder and felonious assault, should have merged.  Since the sentences were run concurrently anyway, it's unlikely that Williams will be breaking out the party hats.

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A facelift

For the blog, not me.  Sorry for the downtime.  Below this you'll see the Case Update, and below that the Friday Roundup.  (Yes, that's back, and we're back to posting five days a week.)  The comment feature now works, too.  Glory days.

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Case Update

The decline of our civilization accelerated last week with the oral argument in the Supreme Court in Octane Fitness v. Icon Health and Fitness.  Not the case itself, which dealt with attorney fees in patent cases; it is extremely unlikely that you will ever see those four words in this blog again.  Nor was the defining event a spectator, Noah Newkirk, using the occasion to stand up and protest the Court's 2010 ruling in Citizen's United.  Such outbursts, while rare, are not unheard of, the last coming eight years ago when a protester started yelling about Jesus Christ during an argument in an abortion case.  No, it was the fact that Newkirk's demonstration was secretly recorded.  The Court doesn't even unsecretly record their sessions.

Oh, the humanity!  Newkirk got out a couple of sentences before he was trundled off by the gendarmes, to be charged with violating a Federal law banning a "harangue" or using "loud threatening or abusive language" in the Supreme Court building.  Good luck with that.  Free speech much?

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