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What's Up in the 8th

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.  

Back in 2001, to be precise, when he was convicted of aggravated murder and sentenced to twenty to life.  But in all the hubbub over the aggravated murder conviction, the judge had forgotten to impose post-release control over the accompanying conviction for weapons under disability.  In 2012, in response to the latest flurry of motions by Freeman, she'd sought to do just that, putting on a nunc pro tunc entry giving him five years of post-release control.  The 8th District reversed, determining that she couldn't do it by nunc pro tunc entry and that, besides, the period of PRC for weapons under disability was three years, not five.  It went back for correction, the judge held the hearing, and entre moi:  she assigned me to do the appeal from the resentencing.

Perspiration, as well as preparation, is often the key to victory, and so I spent hours perusing the 14-page transcript, looking for something, anything.  Exhaustive research, which consisted of looking up two statutes, led me to the key to victory:  the prosecutor had told the judge that weapons under disability carried a three-year mandatory period of post-release control, when it was actually a three-year discretionary period. 

I retired to my office - referred to by my colleagues as "The Place Where the Magic Happens" - to craft the complex arguments necessary to win the case.  Pummeled by the logical precision of my prose, the prosecution crumbled, conceding error, and in State v. Freeman the panel agrees, although for some reason its encomiums to the brilliance of my research and writing skills didn't make it into the opinion's final cut. 

Although admittedly the decision's precedential value is somewhat limited, it's hard to overstate its significance to Freeman:  if he does get out of prison, he will be serene in the knowledge that he may wind up doing a year on PRC, or none at all, instead of a mandatory three.  Of course, he'll still be on lifetime parole for the aggravated murder conviction, but still...

There were other decisions from the 8th last week, although obviously none so momentous.  The defendant in State v. Montanez claims in a bench trial that he was acting in self-defense when he killed one person, shot another, and failed to shoot a third only because he'd run out of bullets.  The judge agrees, to a point, finding that the affray began when the three people, to whom Montanez was going to sell drugs, tried to rob him instead.  But the moral of story is that you can't shoot people who are lying on the ground after you've already shot them, people who are unarmed, and people who are cowering on the ground hoping you won't shoot them.

State v. Garvin lays down some rules for what a judge must consider in determining whether offenses are allied and should merge.  Garvin pled guilty to sexual battery and gross sexual imposition, but the court reversed the case and sent it back down for hearing to determine whether the offenses should have merged.  The defense requested that victim be brought in to testify, but the trial judge denied it and found that the offenses were committed with a separate animus.  It goes up on appeal again, and this time we learn that when panel said "hearing," it didn't mean "a hearing where evidence is taken," but "a hearing where the prosecutor gets up and says something and the judge decides to believe it." 

Speaking of being pummeled, the prosecution takes another beatdown in a search case in State v. WilliamsThe police get an anonymous tip that there's a drug deal going down between people in a white Chrysler and a black Aero on E. 144th St.  They respond to the scene, but don't see anything.  They nonetheless drive around, and ultimately find three guys standing around a white Dodge Charger parked three blocks away, so they put on their sirens, conduct a stop, pat one of the guys down because he "looks nervous," and find several small bags of marijuana.  The officers testify that it's not unusual for drug dealers to drive around, but apparently don't venture an opinion on the likelihood of drug dealers being able to transform their car into an entirely different vehicle.

The case offers a quick primer on stop and frisk, and further proof that Cleveland police have no more understanding of the 4th Amendment than they do of the law of adverse possession.  It's unlikely that the patdown would have passed muster; as the court notes, the cops need more than "the guy looked nervous" to conduct one.  But go back to the initial encounter.  If the police simply park, then walk over to where the trio is standing by the parked car, that's a consensual encounter, and reasonable suspicion isn't necessary.  But the flashing lights converted that into a detention, and there's no way that an anonymous tip about a white Chrysler provides reasonable suspicion that people in a white Charger three blocks away are up to no good.

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