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May 2014 Archives

Computers and the 4th Amendment

Pretty much as I figured, the best arguments I came up with before the Supreme Court in State v. Castagnola were on the ride back from Columbus on Wednesday.

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I lied

Remember how I told you I wasn't going to be posting on Fridays?  Well, I am.  Tomorrow, anyway.  Actually, it's going to be the post I had intended to write for today, except that I didn't get a chance to. 

So I'll do one tomorrow, and it'll either be about my Supreme Court argument yesterday (my initial take:  using sock puppets to summarize the Framer's arguments on the 4th Amendment was probably a tad over the top), or the appeal I handled where the 8th District reversed a conviction last week for ineffective assistance of counsel.

So tomorrow will be It's All About Me Day.

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What's Up in the 8th

If one needed further proof that the wheels of justice grind exceedingly slow, look no further than State v. A.S.   The defendant was charged with rape back in 1994, but a year later was allowed to plead guilty to one count of contributing to the delinquency of a minor.  In 2002, he filed for expungement.  The trial court promptly ordered the probation department to prepare a report in 2002.  And again, in 2004.  The State responded a year later, opposing the motion, but in 2013, the court granted it.  A.S.'s decade-long wait goes for naught, though; expungement can't be granted if the victim of a felony or first-degree misdemeanor is under 18, and contributing to the delinquency of a minor - minor being the operative word - is a first-degree misdemeanor.

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Case Update

Another death penalty case took center stage in the Supreme Court this past week, with the Court granting a stay of the execution of Russell Bucklew until the 8th Circuit has an opportunity to rule on his 8th Amendment claim.  Bucklew was sentenced to death for killing his ex-girlfriend's new boyfriend, and taking her captive and raping her.  During the time he's spent on death row, though, he's developed a rare disease known as cavernous hemangomia.  His lawyers allege that the condition, which results in vascular tumors, creates a "substantial likelihood" that the drugs used in the execution process will result in Bucklew suffering "hemorrhaging, choking, obstruction of his airways, and suffocation."  That's certainly no way for the State to kill someone, so the lower courts will sort it all out, and five gets you ten that before they do, Bucklew will have succumbed to cavernous whatever.

Down in Columbus, only a couple of decisions on disciplinary matters, but the court hears two oral arguments.  On Tuesday, the court will tackle the definition of "enterprise" in Ohio's Corrupt Practices Act (the state's counterpart to the federal RICO statute) in the appeal from the 2nd District's decision in State v. Griffin.

On Wednesday, I take to the podium to argue State v. Castagnola.  The facts of the case were immortalized in my post three years ago.  Basically, the police got a warrant to seize Castagnola's home computer after he told a wired informant that he'd egged a prosecutor's car after he'd found the prosecutors' address "online."  (And yes, they used a wired informant in an egging case.)  Trouble was, Castagnola had never said the word "online"; that was the invention of the detective who prepared the affidavit for the warrant.  The case poses interesting questions about the warrant process and the requirement of particularity, and we'll probably have an opportunity to discuss it further, unless I bomb in the argument, in which case it will never be heard of again.  I'm thinking of accompanying my argument with a PowerPoint presentation entitled, "Your Friend, the Fourth Amendment," but I confess to having second thoughts.

While I'm pondering that further, let's check out what happened in the courts of appeals...

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Reforms in capital punishment

Back in September of 2011, Chief justice O'Connor and former Ohio State Bar Association President Carol Marx appointed a task force, consisting of 22 judges, lawyers, and "policymakers," to study Ohio's death penalty and make recommendations.  While I normally subscribe to the French philosopher's observation that a committee is an alleyway down which ideas are lured to be strangled, that certainly can't be said for the Task Force, which last week issued its report, with no fewer than 56 recommendations on how to improve the way the State goes about killing people.  (Oddly, making sure that those people didn't writhe around on the gurney for nearly half an hour before succumbing didn't make the list.)

The Ohio Prosecutor's Association has already sounded the alarm, contending that adoption of the recommendations would undermine the very foundations of the public, or at least make it almost impossible to impose the death penalty in Ohio. 

It's going to make it a damned bit harder, that's for sure.

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What's Up in the 8th

Okay, here's the situation.  You're the county prosecutor, and you've made it one of your big priorities to prosecute the companies running Internet cafes, which feature on-line gambling.  In fact, your lead prosecutor on the subject is presently engaged in a hearing on one of the cases, dealing with whether the lead detective in the case put false information into a search warrant affidavit.  You learn that lobbyists representing casino interests, which regard the Internet cafes as competition, have arranged for a hearing before an Ohio Senate committee which is considering a bill to ban the cafes.  The lobbyists want your lead prosecutor to come down to Columbus (in the middle of the trial) and testify before the committee, and to bring along the lead detective whose integrity is presently being challenged in the court hearing.

Is this a

    • Good idea?
    • The dumbest thing you've ever heard of?

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Case Update

When the Supreme Court struck down the Defense of Marriage Act last year, Scalia's biting dissent promised that the ruling, despite the Court's protestation to the contrary, would inevitably result in attacks on state laws banning gay marriage.  That's proved prophetic; judges in Idaho and Arkansas declaring bans in those states unconstitutional in the past few weeks, running the record of opponents of same-sex marriage to 0-14.  The justices may eventually have to wade into the discussion, but right now, one of the chief reasons for the Court's exercise of its discretion to hear an appeal - resolving disputes between the lower courts - is missing.

No decisions from the Court last week in criminal cases.  There are only a handful still to be resolved:  Bond v. US (discussed here), Hall v. Florida, on executing mentally retarded defendants, and the two cases on cellphone searches which were just argued.

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Happy Birthday!

8 birthday cake.JPGThat's right, it's birthday time again.  Not mine; I'm older than eight, even in dog years.  No, it's birthday time for the blog:  Eight years ago, a boy with a dream said, "Gosh darnit, I'm going to do a blog.  It will be written with elegance and style, providing deep and provocative insights into Ohio criminal law, maybe with a special section for prosecutors where I'll tread  lightly on the case analysis in favor of more pictures and some nifty word puzzles."

I'm not sure anything after "eight years ago" in that sentence was true.

In any event, I've been doing this for exactly eight years now.  I don't see me doing it for another eight, to be sure.  Hell, for all I know, eight years from now the highlight of my week might be the day they serve sloppy joes in the dining hall at the nursing home, because I don't have to put in my teeth to eat it.  

But I'll be doing it for a while.  I enjoy it, and it keeps me sharp.  I'm only going to be doing it four days a week, though, Monday through Thursday.  I've got a lot of stuff on my plate anymore, what with appeals and trials and moonlighting as a hand model.  (Take that, George Costanza.)  True, I've been able to get more done since I went to a 30-hour day and eight-day week, but time to do four posts a week is about all I can really manage comfortably.

So, I'm off to the party.  I'll be back with the Case Update tomorrow, What's Up in the 8th on Wednesday, and whatever comes to mind on Thursday.

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A blank check for misconduct

If you're a death penalty supporter, Anthony Kirkland is Exhibit "A."  Over a period of four years, he raped and killed two girls, 13 and 14, and two women, then burned or dismembered their bodies.  There wasn't much to the trial -- Kirkland had made a full confession -- and the jury easily convicted him of the aggravated murder of the two girls, and sentenced him to death.  (At the beginning of the trial, he had pled out murder in the killings of the two women.)  On Tuesday in State v. Kirkland, the Supreme Court easily affirmed his conviction. 

All seven justices agreed not only on Kirkland's guilt, but agreed that the prosecutor had engaged in numerous instances of misconduct in the penalty phase which "prejudicially affected Kirkland's substantial rights."

That's where the unanimity ended.  Four justices decided that Kirkland should die nonetheless.

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"May I see your ID"?

A police officer comes up to you on the street and asks for your ID.  Do you have to give it to him?  As I wrote in a post four years ago discussing the 8th District's decision in State v. Houser, the law on that isn't exactly crystal clear.   But as the 8th District missed in Houser, and 10th District caught last week in State v. Westover, the key question is what happens after the cops ask you for identification.

Continue reading ""May I see your ID"?" »

What's Up in the 8th

As Wojciech Buzanowski can tell you, when you ask a girl how old she is and she tells you she's "old enough to party," that's not good enough. 

Buzanowski's legal odyssey, as recounted by the 8th District's decision last week in State v. Buzanowski,  began just two days before Christmas in 2009, when he invited a 17-year-old acquaintance, Megan, to come over to his house and hang out.  (Buzanowski was 23.)  Megan brought over two of her friends, Allison and Heather, both of whom were 15.  (The opinion gives the initials; I made up the names.)  Heather would later testify that she told Buzanowski her age, but the other three, and Buzanowski's friend Banic, who was also there, testified that Heather used the "old enough to party" line.

Continue reading "What's Up in the 8th" »

Case Update

No oral arguments anymore in SCOTUS' 2013 term, and the only case decided last week was the 5-4 decision permitting prayer at the outset of town hall meetings.  The justices will be getting together for a conference on Thursday to pick cases for next term - 15 are already on the docket - and it's likely that at least one Crawford case will emerge.  No fewer than 11 of them are in the certiorari phase, with the issue centered on whether one person can testify about forensic results achieved through testing by another person.  That takes various forms, such as coroner's reports, DNA tests, and blood/alcohol readings.  The Court's been building toward a decision on that since Melendez-Diaz v. Massachusetts five years ago, so we'll see how that plays out, and talk about it more in the coming weeks.

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The problem with competent lawyers

Sometimes the best way of representing your client is incompetently.

Someone we'll call Lissa warned me about the appeal I'd been assigned to handle for someone we'll call Mike.  The State's version was that Mike walked up to a woman we'll call Angel, who was sitting on top of his mother and punching her, and kicked Angel in the face.  The jury bought it, but Mike wasn't around to hear the verdict.  There'd been a fire alarm at about two in the afternoon, and everybody had to leave the building.  Mike didn't come back.

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Complicity and gun crimes

Back in March, the Supreme Court decided Rosemond v. USRosemond and a co-defendant had gone to make a drug deal, but the prospective buyer, instead of paying, punched the co-defendant in the face and took off running, whereupon the co-defendant pulled a gun and fired off some shots.  Rosemond was convicted under 18 USC 924(c), which prohibits using or carrying a gun during a drug trafficking crime, but the Court reversed his conviction because the trial court didn't instruct the jury that it had to find Rosemond had advance knowledge that his co-defendant had a gun.

When I discussed the case, I pointed out that the Court's opinion wasn't based on its interpretation of the Federal statute, but on common-law principles of intent and aiding and abetting, and suggested it might have some application to Ohio law.  The 8th District came to the same conclusion last week in State v. Shabazz.

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What's Up in the 8th

There's probably nothing more important at sentencing than an appropriate and heartfelt expression of remorse by the defendant, especially toward the victim.  The defendant in State v. Mathis chose a different course; after the judge sentenced him to prison for 18 months for domestic violence, he yelled at his wife, who was sitting in the courtroom, "Stinkin' bitch, I'm gonna' kill you when I get out.  I'm gonna kill your black ass.  I'm gonna' kill that bitch. My whole life is destroyed because of your dumb ass."    

As might be expected, this did not favorably impress the judge, who prompty doubled the sentence.  

Continue reading "What's Up in the 8th" »

Case Update

The big news out of SCOTUS this week was that Justice Antonin killed somebody.  Well, he didn't, but you wouldn't have known it from the all the hullabaloo over the mistake he made last week in his dissenting opinion in EPA v. EME Homer City Generation.  The 6-2 decision approved the EPA's cross-state pollution control rules, and Scalia used the occasion to criticize the EPA.  (I'd try to explain what the whole thing was about, but it would only want to make you stab yourself in the head.)  The problem was that Scalia used a 2001 decision to make his point, and the earlier decision said the exact opposite of what he claimed it did.  The bigger problem was that Scalia himself had written the opinion in the 2001 decision.  The knives came out quickly, Talking Points Memo calling it an "Epic Blunder," and the Daily Kos headlining it, "Scalia Screws Up Royally.  Time to Retire."  I'm not a big Scalia fan, although after Blakely, Crawford, and some of his recent 4th Amendment opinions, I'm reassessing that evaluation.  Still, a lot of the criticism seems overwrought. 

On the other hand, I remember writing a post a few years back about how Supreme Court law clerks get snapped up by big firms, usually with starting salaries above the people they recently clerked for.  I'm guessing that the future for one of them isn't so bright.

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Cellphones and the expectation of privacy

J.K. Rowling may have been right in her observation that the best way of measuring a man is to see how he treats his inferiors, but the best way of learning everything about him is to spend a couple hours going through his computer.

Or his cellphone.   

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Recent Entries

  • January 11, 2018
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  • January 5, 2018
    Search and seizure in the digital age
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  • January 3, 2018
    What's Up in the 8th
    We talk about me a lot, but there's some other stuff, too
  • January 2, 2018
    He's baaaack
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    Plea withdrawals (again), sexual predator hearings, and an appellate law question
  • November 7, 2017
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  • October 24, 2017
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    Trying to change the past
  • October 16, 2017
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