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August 2014 Archives

Prejudice and pre-indictment delay

So you and your woman have been going through some tough times, and she goes down to the police station and lays a rape charge on you.  Says it happened right there in your friend's apartment:  you pushed her into the bedroom and forced yourself on her, while a couple of your friends were sitting there in the living room the whole time. 

So you bring the friends in, they testify they never saw anything of the sort, and also get across the idea that you've had a very stormy relationship with this woman, and she's got some axes to grind.  Your investigator checks friends of hers to see if she's said anything inconsistent with her story.  The cops came and took pictures of the apartment, which shows there's nothing out of the ordinary, no overturned vases, broken furniture.  It's an eminently defensible case.

Except for one thing.  The charge is that you did this twenty years ago -- exactly twenty years ago, to be precise.  The one friend's dead, you have no idea where the other one is.  You don't know who her friends were back then, and even if you did, the chances of them remembering anything are zilch, the cops never came and took pictures...

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Backtracking on Nia

While a judge has pretty much unfettered discretion as to what prison sentence to impose, he doesn't have unfettered discretion to run them consecutively.  At least that's the theory; R.C. 2929.14(C)(4) requires him to make certain findings to do that.  The findings are fairly elastic - that consecutive sentences are necessary to protect the public or punish the defender, that they're not disproportionate to the seriousness of the offense and to the danger to the public, and that either the defendant committed the crime while on a judicial sanction, his criminal history shows the need for consecutive sentences, or the harm he committed was so great or unusual that a single sentence wouldn't reflect the seriousness of that conduct. 

And the judge doesn't have to give reasons for them.  But in the 8th District, he does have to make the findings.  The court will hold him to it, requiring strict compliance.

Until last week's decision in State v. Evans.

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What's Up in the 8th

I found a new way to win appeals in the 8th District:  have an incompetent (ex) bailiff.  I "saved" the defendant in State v. Francys nine years off his prison sentence because the bailiff had written up the journal entry to impose a twelve-year sentence on a 4th degree felony, instead of the twelve months the judge had imposed at the sentencing hearing.

Unfortunately, that seems to be about the only way to win an appeal in the 8th any more.

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Case Update

Nothing from SCOTUS this week, except for a stay of the 4th Circuit's decision declaring Virginia's ban on gay marriage unconstitutional.  State officials had urged the Court to accept the stay application as a formal petition for the Court's review to allow the Court "to decide the constitutionality of the Virginia's ban as quickly as possible.  Not so fast; the Court declined to do so, it's order stating that the lower court ruling is "stayed pending the timely filing and disposition of a petition for a writ of certiorari."  That's Courtese for "we'll take our own sweet time on this one, Sparky."

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Coming Attractions

Looks like SCOTUS will start off its October term with oral argument in a case which might have earned an appearance on this blog's Bullshit Traffic Stop of the Week.™  The defendant in Hein v. North Carolina ran afoul of the law by having a malfunctioning right brake light; that led to a stop and a subsequent search which turned up a plastic baggie containing cocaine.  It certainly looks like a good search:  the Court has repeatedly held that any traffic violation provides a justification for a stop.

One problem:  there wasn't a violation.  While North Carolina law requires cars to have a "stop lamp," no state court had ever interpreted this to mean that both brake lights have to be functioning.  Nonetheless, the North Carolina Supreme Court upheld Hein's conviction, holding that even though there wasn't an actual violation of the law, the officer's determination that there had been was "reasonable."

It's going to be interesting to see what the Court does with this.  A number of other courts have held that an officer's mistake of law can still provide a valid basis for a stop.  (That seems to be the minority view, though.)  On the other hand, the Supreme Court has always stressed that the police officer's conduct is to be viewed objectively; the subjective motivation for a stop is irrelevant.  This might call for an application of the precedent established in Goose v. Gander:  a stop is not "objectively reasonable" if it's based on a police officer's subjective believe in a non-existent violation of the law.  Besides, it's hard to see why ignorance of the law can't provide an excuse for the ordinary citizen but can for a police officer.

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The real story?

You want the narrative to be clean.  You want the players to be clearly identified, the good guys and the bad guys.  You want the moral of the story to be clear.

It never is.

It seemed to be at first, when the news came out of Ferguson, Missouri:  unarmed black man, a teenager in this case, shot by white cop.  But then some of the protesters turned violent, and then the video emerged showing Brown, only a few minutes before he died, shoving a store owner aside and walking out with a stolen $50 box of cigars.  The autopsy report showed all the bullets hitting him from the front, which refuted one witness' claim that he was shot in the back, and was at least consistent with the theory that he was charging the officer.

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What's Up in the 8th

You wouldn't need to look at the Ohio Supreme Court's latest stats to know that around 97% of criminal cases are resolved by pleas.  Last week, of the eight criminal decisions the 8th handed down, only one involved a trial, and that was to the bench.

That came in State v. Gaines, where the defendant, who had some mental issues - he walked up to an 84-year-old man and punched him for no reason, putting him in a coma for two months - claims that the judge should have inquired whether he was taking his medication before accepting the jury waiver.  Unfortunately, while the judge has to conduct a colloquy with a defendant before taking a plea, a jury waiver requires only that the defendant sign the waiver in open court.  Worse for Gaines, the judge did conduct a colloquy.

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Case Update

Only another six weeks until the Supreme Court's "long conference," their session the Friday before the term officially starts, where they weed out the petitions that have accumulated over the summer, trying to determine who's naughty or nice.  There's a case where a judge is accused of murder, another involving a disputed kidnapping, some with international implications...

Whoops, that's the fall movie previews!  I suppose I could tie this all in to the unwanted emergence of the Dumb and Dumber sequel, but let's not go there.  Still, the Court has already accepted forty cases for review, including several criminal ones of note.  We'll take a look at those later this week or next.

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One for two

If you happen to be suffering from too much self-esteem, here's the remedy:  start handling Federal habeas corpus cases.  There were two decisions out of the 6th Circuit within the past couple of weeks.  McCarley v. Kelly presents a nice Crawford issue, and shows that you can win these cases.  Williams v. Bauman shows just how hard it is to do that.

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What's Up in the 8th

Let's say you're a probation officer, and you've just finished your first meeting with a fairly attractive defendant who's been assigned to you.  As she's walking to the parking lot, you text her, "you look really sexy in that dress."

What are the chances of that ending well?

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Things I learned last week

I normally do the Case Update on Monday (which got moved to today for various reasons, none particularly good).  But it's two months until SCOTUS' next term, and two weeks since the Ohio Supreme Court's last decision, so we'll try something different today.

"Sealed" doesn't necessarily mean "sealed."  So here's Ian Dolphin, accused of burglary.  No identification, no witnesses, no stolen goods recovered from him.  Looks like the State's got a pretty bad case, right?

But wait!  How does Dolphin go about explaining how his fingerprint came to be found inside the burglarized home?  The homeowner doesn't recognize him, or even his name, so there's no reason his fingerprints would have been found.  Now it's looking kind of grim for Dolphin, right?

But wait!  How did the cops get his fingerprints?  From the Miami Valley Regional Crime Lab, which ran the fingerprints it had through the national database.  Problem was that the fingerprints were taken from Dolphin's arrest in an earlier crime, and he was acquitted, and the records of the arrest, including the fingerprints, were sealed.  There are a few exceptions where people, including law enforcement, are allowed to get those records once they're sealed, but an ordinary police investigation isn't one of them.

So Dolphin walks, right?  Not exactly.  He gets convicted, and in State v. Dolphin, the 2nd District affirms his conviction, finding that just because the records weren't allowed to be unsealed doesn't mean they have to be suppressed; in fact, the very statute that allows them to be sealed says the violation of that statute doesn't provide the basis for suppression of improperly unsealed records.

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Thursday Roundup

Something to ask about the next time you buy an office desk.  The Costanza Defense is an infrequently used, and even more infrequently effective, arrow in the defense lawyer's quiver.  It gets its name from the Seinfeld episode where George Costanza is confronted by his boss with the accusation that he's been having sex on his desk with the cleaning lady.  After inquiring as to the source of the boss' information - it's the cleaning lady, it turns out - George assumes a puzzled expression and asks plaintively, "Was that wrong?"  Of course, that defense gets you only so far; it's tough to argue that your client didn't know that the law frowned upon popping a cap in somebody during a driveby. 

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Hard time

For whatever reason, I waited until last year to apply for the CJA panel, which is how you get assigned Federal criminal cases.  It's been an interesting experience.  There are some notable differences.  The building's a lot nicer.  The Federal courthouse here in Cleveland was built about a decade or so ago, and "spacious" isn't quite the word; the judge's chambers in the Justice Center aren't bad, but the first time I walked into a judge's chamber over in the Federal courthouse, I could see her just over the horizon. 

It's better money, a lot better.  None of this spending eight days in a rape trial, like I did earlier this year, to earn $1,000.  Yeah, I have to schlep out to Youngstown to see my clients -- that's where they keep Federal inmates awaiting trial -- and that's a three-hour round trip, but I've found a dearth of other people willing to pay me $126 an hour to drive my car.

It's a more leisurely pace.  I had a plea hearing yesterday which took an hour, with the judge going over just about every word in the 17-page plea agreement.  Only one out of the 34 judges in Common Pleas court relies on written plea agreements, and it's not uncommon for a judge to have as many as four or five defendants pleading out at the same time, to completely separate cases.  And it can be done in a tidy five minutes.   

There are some other key differences, too, especially in sentencing.  Jay Nagy can tell you all about that.  

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What's Up in the 8th

Only five criminal decisions out of the 8th District this week, two of them on misdemeanors.  One, Cleveland v. Rini, demonstrates that some Cleveland Municipal Court prosecutors and judges haven't gotten the memo on Crawford; why anyone would think that having as the only witness at trial the cop who wrote the ticket, based not on his own observations but on what another cop told him, would pass constitutional muster remains a mystery. 

And you'd think after the raft of baby-left-in-car stories this summer, figuring out whether that constitutes child endangering - assuming that baby makes it out alive - would be a simple matter.  Turns out it's not, as the 8th District's decision in Cuyahoga Heights v. Majors shows.  The decision discusses four cases in which children were left in cars, and by a 2-1 vote decides that the Majors' act of leaving their 10-month-old baby sitting in an unlocked car on the street in front of their house falls tips the Convict-O-Meter into the red.  It probably didn't help that it took the Majors several minutes to answer the door when the cops showed up, and that they were apparently using their "alone time" for drug-related activities.

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Case Update

It's now been six years since the Supreme Court revolutionized 2nd Amendment law in District of Columbia v. Heller, holding that the amendment provided an individual, rather than collective, right to bear arms.  That was followed two years later in McDonald v. Chicago, which extended Heller to the states.  The chattering class provided all sorts of predictions of where this was all going to take us, with predictions that the Supreme Court would have to define what restrictions on firearms could be imposed, and what sort of test - strict scrutiny versus "intermediate" scrutiny - would have to be employed in making those determinations.

Since then, though, the Court has been remarkably gun-shy, most recently declining to hear cases involving bans on concealed carry for persons under 21, and how much discretion officials have in granting concealed carry licenses.  That may change with the decision last week by a district court judge in D.C., striking down the District's complete ban on carrying guns in public.  (Illinois' ban met a similar fate last year.)  Court-watchers have speculated that the reason for the Court's reticence to re-examine the gun issue lies in uncertainty on how Justice Anthony Kennedy, who presently rules the country, replacing Sandra Day O'Connor, might vote on the issue; the belief is that he voted with the 5-4 majorities in Heller and McDonald only after Scalia made changes to the opinion allowing for "reasonable restrictions."  Neither side wants to take the chance that he'll come down the wrong way on the next decision on the subject, but it may be that the odds of avoiding that are dwindling.

So exhausted was the Ohio Supreme Court in handing down three criminal decisions in two weeks that the best they could do was muster the strength to issue an opinion the chief justice had made in a judicial disqualification case almost two months earlier.  So let's wander over to the courts of appeals and see what's shaking there.

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