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What's Up in the 8th

If you want to understand the concept of "consequential damages" in contract law, ask the airlines.  If they bump you from a flight because they sold 180 tickets for a plane that carries 167 people, you get back the money you paid for the flight.  You don't get back the money for the hotel room that you booked and didn't use, or for the rental car you prepaid for and didn't drive.  Same thing in restitution, as the victims in State v. Plant learn.  Plant had thrown a defective Molotov cocktail -- and how you screw up putting gas in a bottle, sticking a rag in the opening, and lighting it I don't know -- at their home, smashing a window, which cost $700.42.  The judge tacked on an additional $3,424 for the installation of a security system, but no can do:  restitution is only for direct, not consequential, damages.

Judges have varying approaches to their participation in voir dire, some doing no more than asking basic questions, and others going farther.  Sometimes, much farther:  there's one who spends about two days on voir dire, and there's absolutely nothing for the prosecutor to say after he gets done.  That raises an issue in State v. Brabson.  Not content with the statutory definition of reasonable doubt, the judge told the jury,

So there's always some imaginary or possible doubt.  And there's always going to be some doubt because you're depending on what other witnesses are telling you.  You have to decide whether they're accurate, whether you believe them. So there will always be some doubt.

Back in 1992, the Supreme Court cautioned against amplifying the statutory definition, but upheld the charge anyway.  In that case, though, the only amplification was telling the jurors that they had to be "firmly convinced" of the truth of the charge.  This seems to be a ways beyond that:  telling the jurors that "there will always be some doubt" -- twice in two sentences -- undercuts the idea that to convict they shouldn't have any reasonable doubt.  The panel nonetheless affirms, while repeating the caution.  One might argue that the affirmance undercuts the caution, too.

Dueling co-defendants is the theme of State v. Dues.  The police go to Dues' apartment with an arrest warrant on a misdemeanor assault charge, but things take a turn for the worse.  For Dues, anyway; in response to their knock, the police hear people scurrying around in the apartment, and go out on the adjoining balcony just in time to see Bullitt, Dues' eventual co-defendant, tossing off what turns out to be $22,000 in cash and over 100 grams of coke.  Just before trial, Bullitt's lawyer announces that he intends to argue that it was Dues who jettisoned the cash and drugs, and requests a separate trial, a motion quickly joined in by Dues.

There's a huge preference for joint trials, either of charges or defendants, but one way of overcoming that is to show that the defenses of the co-defendants are antagonistic, to the point where the trial is nothing more than the two pointing fingers at each other.  But "mutually antagonistic defenses are not prejudicial per se," and here the court finds that not the case.  The right call; neither co-defendant testified, and so the only evidence presented was that Bullitt was the one who tossed the stuff, and it's hard to see how Dues was prejudiced by that.

Christopher Willard was caught with child porn, pled out, and got five years of community control sanctions, with a 20-year sentence -- one year on each count, run consecutively -- hanging over his head.  One of the conditions was that he wasn't permitted to use computers.  After Willard was found to have a cell phone with pornographic pictures, the judge found him to be in violation, and sentenced him to eight years in prison.

A problem:  remember that one year on each count?  Those were second degree felonies, carrying a minimum two years in prison.  So Willard claims that the original sentence was void, and so was the imposition of the sentence for the violation.   The panel agrees.  Willard wants the five-year sanctions period reinstated, but that's now how it works:  a void sentence requires a re-sentencing, so the panel reverses and sends it back for a de novo sentencing.

What happens next?  The concurrence asserts that "the trial court, upon resentencing, is not bound by any aspect of the original suspended sentence because that sentence is void."  There's some Ohio case law to support that, but I'm not sure it's valid:  if the judge were to impose a full twenty-year sentence, for example, I think you could make a decent argument that that's a vindictive sentence under North Carolina v. Pierce; it would clearly be in retaliation for Willard's appeal.  One of the exceptions to Pearce is that the judge can impose a harsher sentence if new information comes to light, and the concurrence mentions this, too.  I don't think that would be applicable, either; here, the "new information" was Willard's use of a cell phone, but that was considered by the judge in imposing the eight-year prison term.  Still, I don't see Willard coming out any better than he did, and there's a distinct possibility that he'll wind up worse.

Finally, in Cleveland v. Alexander, the defendant tries to get out from under his conviction for domestic violence by tossing his attorney under the bus, pointing to all manner of supposed deficiencies in his representation.  None bear fruit, but we do have this nugget: 

As to counsel's failure to object to the prosecuting attorney's comments that defendant was "manipulative, nasty" and a "bully," we note that when a defense attorney fails to object to a prosecutor's repeated "pejorative ranting at his client's expense," such performance falls below an objective standard of reasonable representation.

Hmmm.  Here I thought that was the purpose of the prosecutor's closing argument.  Henceforth:  "Your honor, note a continuing objection to the prosecutor's pejorative ranting at my client's expense."

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