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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.

The full story.  There are judges who won't tell you a thing about what they're going to do at sentencing.  There are judges who will give you some idea.  They'll talk in generalities:  your client is "a good candidate for probation," or "we're looking at the middle" of the sentencing range.  And then there are judges who will tell you exactly what they're going to do. 

I had a judge like that the other day.  The prosecutor and I go back into chambers and lay it all out for him.  Felonious assault and domestic violence, bad injuries, the defendant had a record, so he's going to prison, and it's going to be more than the minimum.  He was pleading to the third degree felony.  Gets a discount from the 36 month maximum because he's pleading.  My guy wants 18, the judge won't give that to him, the prosecutor wants 30, we all settle on 24 months. 

I'm not sure it would have worked out otherwise; I had a difficult client, he was a believer in the "she's not going to show up for trial" theory, and he might not have pled if he thought there was a possibility of doing the three years.

There are arguments against that, to be sure; it can get rough if something turns up in the presentence report that the judge didn't anticipate.  Still, plea bargaining is a contract, we always say, and the more certainty there is to the terms of the contract, the easier it is to arrive at one.  You'd never buy a house if the realtor told you that the purchase price was going to be somewhere between $150,000 and $250,000, and a third party would decide what it was.  The most essential term in a plea bargain is the sentence, and the more vagueness there is to that term, the harder it is to arrive at one.

The Federal side.  Of course, if you've got a pretrial in a Federal case and you amble over to the bailiff and tell him that you think it might be a good idea if you and the prosecutor can talk to the judge in chambers about sentencing, they'll drop you out a window.  The Federal rules prohibit a judge from any participation in plea bargaining.  It's not that big a deal, though, because the Federal sentencing guidelines give you a pretty good idea of what the sentence is going to be.  Ohio judges have full, and largely unfettered, discretion in sentencing.  Federal judges don't.

For that reason, there is such a thing as meaningful appellate review of sentencing in the Federal system, and I ran across an interesting case on that a few weeks ago, the 6th Circuit's decision in US v. Musgrave

Musgrave was an accountant, and got caught up in a business venture that went south, costing him $300,000 of his own money.  He'd made some statements in various loan applications which were a little south of true, and so he wound up being convicted of several counts of wire and bank fraud.  The guidelines range was a sentence of 57 to 71 months imprisonment, and the government recommended 30.

The judge gave him one -- day, that is.  Musgrave had no prior criminal record, and the judge observed that he'd been through "four years of hell":  he'd lost the $300,000, he'd had to pay attorneys, he owed $1.7 million in restitution, he was going to lose his CPA license, and he'd have a felony record for the rest of his life. 

The 6th Circuit decided that didn't cut it, for a couple of reasons.  First, there's a general prohibition against considering collateral factors, like having a felony record or suffering humiliation among family, neighbors, and colleagues, because that "would tend to support shorter sentences in cases with defendants from privileged backgrounds, who might have more to lose along these lines."  Second, the penal goal of dissuading others from committing the crime is particularly significant for white-collar crimes:  "Because economic and fraud-based crimes are more rational, cool, and calculated than sudden crimes of passion or opportunity, these crimes are prime candidates for general deterrence."

I'm not saying I agree with the court.  A large part of the district judge's decision was apparently based on the fact that Musgrave's cohort in crime, and who played a much larger role in it, was allowed to plead guilty to a single count of misprision of felony with a three-year probationary sentence in return for his testimony against Mulgrave.  I think there are some problems with the result, but the reasoning was interesting, and it beats hell out of reading Ohio appellate opinions where the panel basically says that as long as the judge doesn't make a reference to "needing to lock up colored people" during sentencing, anything he does is just fine.


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