July 2014 Archives
On August 30, 2012, the 8th District released its decision in State v. Richmond, holding that a judge was required to obtain a presentence report before placing a felony defendant on community control sanctions.
On August 30, 2012, the 8th District released its decision in State v. Amos, holding that a judge was not required to obtain a presentence report before placing a felony defendant on community control sanctions.
Last week, the Ohio Supreme Court decided that the Amos court was right in holding that the judge shouldn't have to get a report, but the Richmond panel was right in concluding that the judge was required to get one.
So what does a trial judge have to do to give a defendant consecutive sentences?
The Supreme Court sought to provide an answer to that question last week in State v. Bonnell, the first time it's addressed consecutive sentencing since the passage of HB 86. That bill, effective in 2011, revived the requirement that in order to overcome Ohio's presumption for concurrent sentences, the judge has to make certain findings.
Bonnell did provide some answers, although you might not be happy with them. (Spoiler alert: I'm not.) I'll start by telling you the basics of the case, then I'll provide some of that penetrating commentary you're paying the big bucks for.
I ran into one of the countless legions of my regular readers over in the Justice Center last week, who said, "I thought you were on vacation." Ah, taking a break from here and taking a vacation are two different things, I'm afraid. Anyway, I've got two weeks of 8th District decisions to go through, and there are probably several which will be of great interest to you trial practitioners, giving you the extra knowledge which will allow you to get that child molester or gang killer off.
Well, as they used to say in the car commercial, "Not exactly."
If you're jonesing for some news from SCOTUS, now that it's out of session until October, SCOTUSblog lifts that monkey off your back by advising us that there are fifteen new books on the Supreme Court in the works, including The Enigma of Felix Frankfurter. Frankfurter was the counterpart to David Souter: a staunch liberal when appointed by FDR, he became decidedly conservative on the bench, refusing, for example, to apply the Constitution to the states. Probably his most egregious opinion was Minersville School District v. Gobitis, which upheld the expulsion of Jehovah's witnesses from school because they refused to say the pledge of allegiance, a decision the Court overruled just three years later. Frankfurter also refused to hire Ruth Bader Ginsberg as a law clerk because she was a woman, despite the recommendation of the Dean of the Harvard Law School, where she had graduated at the top of her class.
I think I'll wait for the movie.
Down in Columbus, the court was busy spewing out decisions in criminal cases. One case that didn't make the cut was State v. Laber, which involved the issue of whether "terroristic threats" under RC 2909.23 - in Laber's instance, speculating to another coworker about which fellow employees he would shoot, and where he'd position bombs in the workplace - implicates the First Amendment. Well, it would have involved that issue, had it been raised in the lower courts. It wasn't, leaving only the issue of sufficiency of the evidence. After the oral argument, I wrote that "why the court even took the case is a mystery," and it proved a mystery the court couldn't solve, either; last week, it dismissed the case as having been improvidently allowed.
But the court did hand down three decisions. State v. Limoli deals with the application of the sentencing provisions of HB 86 to crimes committed before its passage, and, I believe, provides further support for my argument here a couple weeks back that HB 86 governs sentences in "cold cases," and thus a defendant convicted of a 1994 rape faces a 3 to 11 year sentence, rather than 10 to 25 years. In State v. Amos, the court resolved a split between the 8th District and the 8th District: two different panels had come out with on the same day, one holding that a judge had to get a presentence report before placing a defendant on community control sanctions, and one holding that she didn't. Spoiler alert: she does.
The last decision was probably the most significant: in State v. Bonnell, the court sought to clarify the requirements for imposition of consecutive sentences. Spoiler alert: they didn't. In any event, we'll talk about Bonnell on Wednesday, and Limoli and Amos on Thursday.
In the courts of appeals...
Taking a few days off -- a week, to be precise -- to spend some time with three of my closest friends in a parallel universe. (One in which, quite obviously, I age much more gracefully.) I'll be back next Monday with more of my keen wit, lucid prose, and incisive commentary. See you then.
Every year I do a recap of the US Supreme Court's decisions in criminal cases over the past term. This is the one for 2013-2014. You can find these by typing "supreme court review," followed by the year of the term, in the search box on the right. The list below gives the decision (with a link to the opinion), and a brief summary of the case. If I've done posts on oral argument or the decision itself, there will be links to those as well.
Since the Cleveland police discovered that they had 3,000 untested rape kits lying around their property rooms and belatedly sent them off to BCI, we've had a rash of "cold case" rape prosecutions. There have been innumerable people indicted on the 7,305th day -- 20 years -- since they allegedly committed the crime. In several cases, the State didn't have a name for the defendant, just a DNA profile, so they indicted the profile as "John Doe."
There are a number of legal issues that crop up in these cases: pre-indictment delay, Crawford... And a big problem is sentencing: most of the cold cases are from 1993 and 1994, which was two major sentencing reforms ago. People are scrambling to find out what the sentence for a particular crime was back in 1993.
I think that the relevant question is what the sentence for the offense is now.
For the first time in a month, we have several reversals in the 8th District.
One of them was an affirmance.
And yes, I know that doesn't make any sense.
Much of the talk about the Supreme Court's 2013 term continues to center around the Hobby Lobby decision, in which the five of the Court's male justices, all Catholics, decided that corporations have souls which might face eternal damnation if forced to allow their health insurance companies to provide certain contraception coverage to women, at no cost to the company. On the other hand, my many California readers can take comfort in the fact that the Court might soon redress the Golden State's citizens' inability to get goose liver; in Association des Éleveurs de Canards et d'Oies du Québec v. Harris, the plaintiffs are asking the court to address the state law which bans importation of foie gras because of the manner in which it is produced.
On Thursday, I'll do my annual Supreme Court recap of the past term. No force-feeding involved.
Today's Helpful Hint. If you're a sex offender who's reading this, keep in mind that if you become destitute, you're legally required to tell the Sheriff that your address has been changed to the homeless shelter, and they'll come out and check to make sure.
The State wins a search case last week, and State v. Moore provides our Moment of Eeeeewww: the judge has to choose whether to believe cops' story that as they patted down Moore, bags of heroin fell out of his pants legs, or Moore's story that they retrieved the bags from his anal cavity. <Your joke here.> Since this happened on an Interstate after a traffic stop, I'm figuring that either the cops are telling the truth, of passersby had an unusually bad ride to work in the morning.
SCOTUS' term has come to an end, but that doesn't mean we have to stop talking about it. The Court was much less divided this year; only 14% of the 67 decisions were by 5-4 votes, half of last year's rate, and the lowest since 2005. A full two-thirds were by unanimous vote, similarly the highest percentage, by a significant margin, in years.
All that, and much more, comes courtesy of SCOTUSblog's annual Stat Pack. That'll give you the statistical breakdown, but for a review of the Court's criminal decisions in the past year, you've come to the right place: here. I'll have my annual review of those decisions in the next week or so.
About two years ago, police from a Lake County township were called by neighbors concerned about the absence of 77-year-old Eleanor Robertson. The cops found her body stuffed beneath a mattress. She'd been stabbed ninety-four times with a screwdriver.
Two hours later, Euclid police found Danna Weimer and her son Zachary in a car stuffed with items taken from Eleanor's home. They linked Zach's footprint to the mattress on top of the body. The killing had actually taken place the evening before. Beginning about 4:40 the following morning, video surveillance at Danna's place shows the two getting rid of Eleanor's van, burning a bunch of the stuff that was taken from the house, and loading cleaning supplies and then leaving. They were arrested trying to pawn some the loot.
No murder case is complete without a jailhouse snitch, and that arrived in the form of Raymond Gould. He told who told the jury in both trials that Zach had admitted the crime to him, telling him that "he and a buddy broke into the woman's home." The "buddy" was never specified, but that link was filled in by the prison letters sent by Danna to Zach referring to him by that term. And, of course, the general seediness of the two -- despite a thirty-year age difference, they often did drugs together with Zach's friends -- provided a motive: they needed money to buy drugs.
They were both convicted. The judge gave Zach life without parole, and gave Danna 44 to life.
Aaron Baker, the lawyer who tried the case, got me assigned to the appeal for Danna. Both cases were argued last December. Zach's conviction got affirmed within a month. On Monday, the 11th District reversed Danna's.
Antonin Scalia, of whom I once said, cribbing Molly Ivins' line, that I preferred to read his opinions in the original German, is one of the great Supreme Court justices in our history. His opinion in Blakely revolutionized the right of jury trial, and Crawford did the same for the Confrontation Clause. More significantly, he's been inordinately successful in promoting originalism -- what reasonable persons living at the time of the Framing would have thought was the ordinary meaning of the text -- as a theory of constitutional interpretation. District of Columbia v. Heller, the case recognizing the Second Amendment as granting an individual right to bear arms, was a 5-4 decision, but both sides argued on Scalia's turf: the dissenters, as much as Scalia, looked to the original meaning of the Amendment.
But that only takes you so far, as we find out in the Court's decision last week in Riley v. California.
Sometimes I'll find a surprise when I read the 8th's opinions every week. It may be a groaner, like the time two different panels of the court ruled different ways on the same issue on the same day. Or it may be to see that a judge, despite having to write nine opinions a month -- and trust me, that's a lot -- has taken the time to write a particularly thoughtful one.
And then there's the surprise, a thoroughly unsettling one, I got from reading the 8th District's opinion in State v. Jones: I find out that the Cuyahoga Metropolitan Housing Authority police has a SWAT team.
Be afraid. Be very afraid.
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