April 2014 Archives
The anonymous tipster has always been the bastard child of law enforcement sources. The identified citizen informant is, of course, the gold standard; just about anything he says will be deemed reliable. The snitch -- somebody who operates in the criminal milieu and who trades information for money or leniency with his own case -- is a step down; there, the police have to make some showing that the informant is reliable, such as that he's proven reliable in the past.
The anonymous tip, however, is symbolized by the Supreme Court's 2002 decision in Florida v. J.L. There, the cops had received an anonymous tip that a young black male in a plaid shirt standing at a bus stop was carrying a gun. The police went to the bus top, and lo and behold, there was a young black male in a plaid shirt; the cops frisked him, and found -- wait for it -- a gun.
The Court tossed the search, and the takeaway of many from that decision was that the police had to be able to corroborate some incriminating aspects of an anonymous tip. That takeaway pretty much goes away after the Supreme Court's 5-4 decision last week in Navarette v. California.
When I was assigned Maurice Freeman's appeal, I approached it with the goal of making him a free man. It's a nice goal to have, especially when you don't know anything about the case.
That boat, it turned out, had sailed long ago.
Looks like this will be 4th Amendment Week at The Briefcase. Not as much fun as Happy Hour at Tiffany's Cabaret, but the food is better. SCOTUS came down last week with its decision in Navarette v. California, holding that an anonymous tip can serve as the basis for a traffic stop for drunk driving. Tomorrow, we have oral argument in the cases involving whether the police can search a cell phone without a warrant. We'll talk Navarette on Wednesday, and the cellphone cases on Thursday. That's a big week, so we'll take a break on Friday, and actually do some work.
The Court also decided Paroline v. US, on restitution for child porn victims. As I explained a couple of years ago, the 2004 Victims Rights Act passed by Congress requires courts to award victims of child sex abuse "the full amount of the victim's losses." "Amy," the nom de litige (yeah, I know, I just made it up, but it sounds good, no?) of the "Misty" series, a compilation of the girl taken by her uncle when she was 8 to 10, has been filing restitution claims against anybody who's caught with her pictures on his computer. She's claiming a total due of $3.4 million, and she claimed that she was entitled to an order of the full amount from Paroline, who had only two of her pictures on is computer. The 5-member majority decided that the district court should calculate how much to assess against each defendant personally, while expressing hope, probably unfounded, that the district courts can come up with a way to do this. Three justices - Roberts, Scalia, and Thomas - wouldn't have made any award against Paroline, arguing there was no valid formula set forth in the law. Sotomayor dissented, arguing that the full amount had to be awarded against each defendant.
Matthew Gunner made a choice, and wound up with a ten-year prison sentence. Last week, the 6th Circuit held in Gunner v. Welch that this was likely his lawyer's fault. In doing so, the court held that the case "raises a significant issue regarding the obligation of assigned appellate counsel in Ohio."
That got my attention.
Sometimes the biggest victory is when you don't lose, and that's probably the feeling among the defense bar about the Ohio Supreme Court's decision last week in State v. Codeluppi.
As I've mentioned before, the 8th District leads the league in Gallaghers. Sean's been there since 2003, Eileen A. Gallagher joined the bench in 2010, and Eileen T. Gallagher was elected in 2012. I was going to figure out what the chances were of getting all three on the same panel -- a sure way to win some bar bets -- but then I remembered that one of the reasons I went to law school is they promised there wouldn't be any math. Must be a pretty small chance; it happened in a criminal case for the first time last week.
It's the last month for oral argument in the Supreme Court's 2013 term, and next week features a big 4th Amendment issue: in two cases, the Court will consider whether police need a warrant to search the contents of a cellphone incident to the owner's arrest. This week features argument in ABC v. Aereo, Inc., where the Court will consider the copyright laws to see if Aereo can offer streaming of TV shows to people who pay them a fee, without Aereo having to pay the broadcast companies anything. Could be huge, at least for couch potatoes.
Down in Columbus, a big victory for the defense bar, especially those who defend drunk driving cases. We'll talk about that one in detail on Wednesday. In the meantime, let's head over to the courts of appeals, where several interesting cases are on tap.
The nice thing about the car ride from here to Columbus is it gives you time to think. That is, if you can take your mind off the breathtaking vistas that the magnificent landscape in that stretch offers.
The Ohio Public Defenders Commission publishes the standards for attorneys who take assigned criminal cases. They figured it was time for a re-write, and I was invited to be on the committee to do that. So that's what I spent the ride thinking about.
Well, so much for that. My buddy Paul Kuzmins of the County public defenders once hiked the Appalachian Trail. That was a walk in the park -- okay, not such a good metaphor -- compared to the reception he received in oral argument in the Supreme Court last week in State v. Tate. Tate had met several young girls in a library and enticed one to follow him outside, where he propositioned her for sex. The 8th District's reversal of his conviction seemed pretty cut-and-dried, too: the prosecutor hadn't asked any of the witnesses to make an in-court identification of Tate, so the panel tossed it on that basis.
As even Kuzmins had to concede, the law does not absolutely require an in-court identification, so long as the circumstantial evidence is sufficient to establish that the defendant was the one who committed the crime. And there was oodles of it in this case, including Tate's admission that he was the one in the library surveillance video. Even better was the fact that Tate had given the girl he propositioned his business card, and as the police were questioning him, another officer dialed the number on the card. Guess who answered?
Kuzmins' main argument was that this was simply error correction. The problem is that the court's typical response to that argument is, "Yeah, we don't do error correction, but as long as we're here, we might as well correct some error." We're not even going to handicap this one. The only good news for Tate is that the 8th District didn't address any of his other assignments of error, so the case will go back for that.
You know things are getting bad when for the second week in a row the only win for defendants in the 8th District's cases is getting driving privileges to work.
The W comes in State v. Semenchuk. Semenchuk was convicted in 2007 for drunk driving, emphasis on "drunk": the police found Semenchuk driving in circles in a parking lot, with his pants pulled down after having urinated on himself, and determined he was too intoxicated to take the field sobriety tests. He was given a lifetime drivers suspension, but applied for occupational driving privileges seven years later. The statute specifies that one can seek "modification or termination" of a lifetime ban, but only after 15 years, so the judge denies it. But earlier this year in State v. Manocchio the Supreme Court held that a grant of limited privileges wasn't a "modification" within the meaning of the statute, so Semenchuk is able to drive to work, and we can only hope that they have bathrooms on his job site.
If you're still crying in your beer because your March Madness bracket cratered - the ones in Warren Buffett's $1 billion challenge didn't even get out of the first round - cheer up. You've got a chance to recoup your losses with SCOTUSblog's Supreme Court challenge: picking the right outcome in six upcoming Supreme Court decisions. Be forewarned: only one criminal case in the six, with the others pertaining to patents, copyright restrictions, and one "involving post-judgment discovery and the Foreign Sovereign Immunities Act of 1976." (Time out while you try to temper your enthusiasm.) My picks on those would be dictated by coin flips, because I'd rather pluck out my eyeballs than (a) read up about those cases, or (b) go back to law school, which seems to be the requirement for entering the challenge. You also have to predict whether the Court will grant cert in six other cases, and at least four of those - two dealing with the 6th Amendment, one with the 4th, and one with the 2nd - look vastly more interesting. Maybe they'll take in one of those cases and I can write about that, instead of making up stuff about basketball tournaments.
The Toledo police arrested Brian Hoffman on a misdemeanor warrant. In doing so, they discovered evidence linking him to a murder. They got a warrant, and found more evidence.
So far, so good. But there's a problem. The misdemeanor warrant was "issued" by the clerk of courts. There's case law that says a clerk can be the "neutral, detached magistrate" contemplated by the 4th Amendment, but he's still required to make a determination of probable cause. He can't simply rubberstamp a warrant that says no more than that the police officer believes that the defendant committed a particular crime. That's exactly what happened with the misdemeanor warrant in Hoffman's case.
So on Tuesday, everybody got together for oral argument in the Ohio Supreme Court to decide if there was anything wrong with that.
There are cold cases, and then there are frigid cases. Back when the Cleveland police finally discovered Anthony Sowell's House of Horrors - over a period of several years, he kidnapped, raped, and killed eleven women, hiding their bodies in his house and yard - they also discovered that there were about three thousand rape kits sitting in their evidence room which had never been submitted to BCI for testing. Many were nearing two decades old, so the rush was on to test them before the statute of limitations expired.
The 8th District made those cases a lot easier to prove in their decision last week in State v. Bowleg.
You know defendants are having a tough time in the 8th District when the only favorable decision is one that allows a guy who killed two people while driving drunk to get his license back.
The march toward plutocracy continues with the Supreme Court's decision in McCutcheon v. Federal Election Commission, striking down the aggregate limits for contributions to candidates for federal office. That's not an unreasonable position; it's hard to make the argument that my $2,600 contribution to one congressional candidate will not be corruptive, but my $2,600 contribution to each of twenty congressional candidates will be. (Note to congressional candidates reading this: the check's in the mail. Really. No, really.) Still, the decision occurred with the backdrop of John Kasich, Scott Walker, Chris Christie, and Jeb Bush trundling off to Las Vegas to curry favor with Sheldon Adelson, the world's eighth-richest person, who'd announced that he was looking for a Republican candidate to back in the presidential contest in two years. That announcement wasn't taken lightly; Adelson contributed $93 million in 2012.
The oral argument on whether police need a search warrant to examine a cell phone's contents is coming at the end of the month. We're still waiting the decisions in several other criminal cases, so maybe we'll have something to talk about before then.
I'm a morning person. I'll get to the office a little after five in the morning. It gives me some "free time" -- no calls, nobody else -- which is good thinking time. This is when I usually do my posts. And sometimes, when I think about what I'm going to write about on the drive down, I have an epiphany of sorts.
I had one today.
It was, "Jesus, am I a crappy lawyer."
It's one of life's great historical ironies that generations from now, Antonin Scalia will be remembered for being a staunch advocate for the rights of criminal defendants. His opinion in Blakely v. Washington revolutionized the concept of jury trial, and his opinion in Crawford v. Washington did the same for the right of confrontation.
Last week, the Ohio Supreme Court in State v. Maxwell tackled one of the many questions left open by Crawford, and doing so underlined the inherent conflict in Crawford.
Sal's got two problems. The first is the Federal drug case I'm representing him on. The second is the case he has out in Oregon. When the cops picked him up on the Federal warrant, he was sitting on top of a duffel bag containing 112 grams of meth.
The Assistant U.S. Attorney and I got on the phone with the Oregon prosecutor to see if we could work out something that would take care of both cases. Sal was looking at the minimum mandatory five years here, and if the Oregon case was less serious, folding that up into this one, and having Sal do concurrent time, looked like the best solution. I asked the prosecutor what Sal would be looking at on a conviction out there. "The sentencing guideline's 39 to 46 months," he said.
I wondered what would have happened if the Fed case had been out in Oregon, and Sal had been picked up here. What would one of the prosecutors here tell someone about what Sal would be facing if he got convicted in the courthouse across the street from me?
I'm constantly amazed by how many of my client's friends, relatives, or fellow inmates possess law degrees. I'll work out a plea bargain, only to find on the day of sentencing that my client's cousin or one of the guys in his pod has told him that it's a crappy deal and he'd be better off going to trial, and the client wants to withdraw the plea. Such was the case with the defendant in State v. Barrett. Barrett's first claim is ineffective assistance of counsel; his attorney, he says, failed to properly advise him that the State's case against him was based on a theory of complicity. But that goes nowhere. Hint to judges: it helps to make a record, and here the judge did exactly that at the plea hearing, making extensive inquiries of the State and having them explain the factual basis for the plea. As for the second claim, that the judge should have allowed him to withdraw his plea, the court finds that this "seems to be predicated upon a change of heart based on the fact that he received advice from non-lawyer acquaintances."
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