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January 2015 Archives

Not crazy after all these years

It was a drug deal gone bad, and about as bad as it could be, at least for Shane Gulleman:  he'd driven from Indiana to Cincinnati to buy Oxycontin from Joseph Harris -- what, they don't have Oxycontin in Indiana? -- and a couple days later they found Gulleman's body in his car, dead from multiple gunshot wounds.

Harris was charged with the murder, and asserted he was incompetent to stand trial and also entered a plea of not guilty by reason of insanity (NGRI).  A psychologist from the court clinic evaluated Harris, and determined he was neither incompetent nor insane. 

She also determined Harris was faking it.  The State called the psychologist as a witness in its case-in-chief, and she was allowed to testify that Harris was malingering, was "feigning some systems and probably exaggerating others."

The Supreme Court's decision last week in State v. Harris was supposed to resolve the question of when a defendant's statement to an examining psychologist could be introduced at trial.  And, by a unanimous vote (French concurred only in judgment), the court held that the psychologist's testimony shouldn't have been admitted.  But from the facts of the case, that was a pretty easy call, and it's questionable whether the decision will have much broader application.

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Dog sniffs - again!

The cop pulls you over for speeding.  He gets your license and registration, checks you for warrants, and gives you the ticket.  The whole thing takes ten minutes.  Just as he's giving you the ticket, another cruiser pulls up, with a drug dog.  Man's so-not-best-friend walks around the car, which takes about two minutes.  Have you been unreasonably detained?

Same scenario, except the cop holds up giving you the ticket for eight minutes, during which time the drug dog arrives.  Same question.

Same scenario, except the cop asks you all sorts of questions -- where are you coming from, where are you going to, you wouldn't know anything about the burglaries that have been happening around here, would you?  It takes twenty minutes to ask you this and get your driver's license information, and just before the officer gives you the ticket, the drug dog arrives.  Same question.

That's the question the Supreme Court has to answer in Rodriguez v. US.  From the looks and sounds of the oral argument last week, it may already have.

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What's Up in the 8th

The bodies are stacking up like cordwood in Cleveland; the seven cases decided by the 8th District last week involved two shootings and an attempted strangling.  A Batson case gets fine-tuned, an interesting decision on expungement, and we take a behind-the-scenes look at how the judges on the court craft their opinions.

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Case Update

One of the things we learned last week is that there is a Federal statute prohibiting making "a harangue or oration, or uttering loud, threatening, or abusive language in the Supreme Court building."  No, it wasn't Antonin Scalia who was the target of the law because of his latest biting dissent, but eight individuals belonging to 99Rise, who stood up in the gallery on Wednesday just after the justices took their seat and loudly declaimed the Court's 2010 decision in Citizens United, which removed limits on campaign donations by corporations and thus provided another waypoint on our glide path to plutocracy. 

The Court did manage to hand down two decisions last week, of no particular interest to me or presumably you (multidistrict litigation and whistleblower protections), but it also heard argument in yet another dog-sniff Fourth Amendment case, Rodriguez v. US.  We'll talk about that on Wednesday.  It also agreed to hear a challenge to Oklahoma's three-drug protocol the state now uses for executions.  Four inmates had contested the procedure, and two weeks ago the Court, by a 5-4 vote, refused a stay.  One inmate was executed, and the next is scheduled to be killed on Thursday.  No stay has yet been granted.  Well, that's one way to moot a case.

The Ohio Supreme Court was busy, too, coming down with a big case on the use of statement a defendant makes while being examined for incompetency or evaluated for his NGRI plea.  We'll talk about that one on Thursday. 

We haven't checked out the courts of appeals in a while, so let's do that now.

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Forfeiture reform (?)

Demetrius Harris can tell you all about "adoptive forfeiture" and "equitable sharing." Back in May 2010, Mayfield Heights cops stopped Harris' car and found $15,000 in a paper bag on the front seat.  They turned the money over to the DEA.  Harris filed a replevin action against the city seeking return of the money, but the trial court granted summary judgment to the city, and the 8th District affirmed

Here's how it works.  The city had no possibility of retaining the funds under Ohio's forfeiture law, because it would have been required to prove that the funds had been "involved in the offense," and Harris was only charged with driving under suspension.  The Federal forfeiture laws are much less demanding; basically, the money is forfeited unless the defendant contests it, and if he does he has the burden of proving that it wasn't contraband.  (As a result of those hurdles, about 80% of Federal forfeitures go uncontested.)  And under Federal law, a Federal agency can accept any items that were seized by a state or local agency, at which point fiction is created that the Feds were the ones to have received it.  That's what happened to Harris:  the court held that the city no longer had the money, the Feds did.

That's where equitable sharing comes in:  the Feds will return about 80% of the money "seized" in that fashion to the state and local agencies.  So the City of Mayfield Heights police department, which couldn't have taken a dime of Harris' money under state law, got about $12,000 of it.

Last week, Attorney General Eric Holder put an end to that. 


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Mistakes of law and the 4th Amendment

One of the first oral arguments in the Supreme Court's 2015 term was Heien v. North Carolina.  The Court handed down its decision a month ago ("Gosh, Russ, why are you just now getting around to writing about?"  "Shut up," he explained), and when I wrote about the oral argument, I said "I'd expect a decision upholding the search, but on narrow grounds.  Frankly, I think that's the best we can hope for."  Well, that's pretty much exactly what we got.  Let's take a look.

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What's Up in the 8th

So when is an encounter consensual?  No, I'm not talking about my long-ago dating life, I'm talking about when The Man comes up to you on the street and starts asking questions.  The 8th District handled two of those this past week, with different results.  That, and an extended discussion (again) of allied offenses, are worth a look.

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Case Update - Supreme Court Edition

The big news from SCOTUS this week was its agreement to decide the issue on same-sex marriage.  If this were a blog devoted to social issues of national import, we'd discuss it at length, but it's not, so I'll direct you instead to SCOTUSblog's first page, where you can parse through the issues at your leisure.  Since this blog is about criminal law, we'll focus on the decision last week in Jennings v. Stephens, and the argument in Mellouli v. Holder.

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Thursday Roundup

A different definition of "gun nut."  In the wake of District of Columbia v. Heller and McDonald v. Chicago, the recent SCOTUS decisions holding that the 2nd Amendment guarantees an individual right to bear arms, rather than a collective one, a number of commentators, including Your Faithful Correspondent, anticipated a wave of cases striking down gun laws as being overly restrictive, and legal debates as to whether any law infringing on gun rights had to be subjected to "strict scrutiny," the same as, for example, a law impinging on First Amendment rights.  That didn't happen.

Until maybe now.  Three weeks ago, in Tyler v. Hillsdale County Sheriff's Department, the 6th Circuit struck down a Federal law which prohibited 73-year-old Clifford Tyler from possessing a gun because he'd involuntarily spent a short time in a mental institution thirty years ago.  The court did apply the strict scrutiny test, even though one of the judges acknowledged that the law would've flunked the less demanding heightened scrutiny test.   

This is the first time a Federal court has applied strict scrutiny, or struck down a Federal gun statute post-Heller, and it raises some interesting questions, not only about Federal gun laws but state ones as well.  Giving a friend a joint is a fourth degree misdemeanor in Ohio, but conviction of that will disable you from possessing a gun for the rest of your life, and doing so is a third degree felony.  Would that survive strict scrutiny? 

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Sex offenders and out-of-state convictions

When Jonathan Collier was 29, he had sex with a 16-year-old girl.  That earned him a conviction of aggravated criminal sexual abuse in Illinois.  When he moved to Ohio 10 months later, that came with him, and landed him in hot water almost immediately; at the end of the year, he was indicted in Cuyahoga County for failing to register as a sex offender.  He pled to that and was given community control sanctions, but five years later, he picked up another case for failing to notify of a change of address.  He did two years in prison for that one.  But two years after he got out, he was again indicted for failure to notify of change of address, and failure to verify the address.

That could have led to a lengthy prison sentence.  Instead, the trial court decided that he never had a duty to register as a sex offender in Ohio, and last week, the 8th District not only affirmed the dismissal of the indictment, but ordered his two previous convictions vacated as well.

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What's Up in the 8th

The 8th District's New Year starts not with a bang, but a whimper, the whimper coming from James Varholic, who finds the court has affirmed the denial of his motion for return of forfeited property.  A surprising result only to Varholic, and I'm not even sure about that;  the pickup truck at issue was ordered forfeited back in 2007, and Varholic didn't raise the issue through his first three appeals.  Let's put it this way:  when your appeals get Roman numerals, like Super Bowls or bad movie sequels, if by the time Varholic IV comes out and you raise an issue that you didn't raise in I, II, or III, you're out of luck.

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Case Update

While Congress might not do much anymore, it has done a very good job of coming up with laws that will send you to prison for a long, long time.  One example is the Armed Career Criminal Act, which tacks an additional fifteen years in prison onto the sentence of a Federal firearms offender who has three prior convictions for a "violent felony."  The law defines a violent felony as one that involves the use or threatened use of physical force, as well as burglary, arson, extortion, or use of explosives, and adds what's known as the "residual clause":  "otherwise involves conduct that presents a serious potential risk of physical injury to another."

The Court's handed down four decisions on the residual clause in the past ten years, with differing rationales and results:  attempted burglary and fleeing from the police qualify, drunk driving and "failure to report for incarceration" don't.  A fifth case loomed this term, with Johnson v. US presenting the query of whether possession of a sawed-off shotgun qualifies.  The Court heard oral argument in November, but last week ordered the parties to brief the issue of whether the residual clause is unconstitutionally vague, as Scalia had contended in a dissent three years ago.  The case will be reargued in April.  Stay tuned.

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Good faith and "binding" precedent

Detective Hackney of the Butler County Sheriff's Department got a tip that Sudinia Johnson was bringing seven keys of Columbia's major non-coffee export from Chicago, and would be transporting it in his van.  He went out that night and attached a battery-powered GPS tracking device to the undercarriage of Johnson's van.  He tracked Johnson's movements over the next five days, and that resulted in Johnson's arrest and conviction for drugs.  Of course, the whole thing gets thrown out because the US Supreme Court, in US v. Jones (discussed here), held that police needed a warrant to attach a GPS device to a car, right?

Well, no.

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Meaningful adversarial testing

There are a variety of criminal defenses which defendants vigorously pursue, with little record of success.  One is the belief that the jury will discount their criminal history if they take the stand and explain that in all those other cases, they pled guilty because they were guilty, and in this one they're going to trial because they're not.  Another is the claim that nobody would be stupid enough to consent to a police search of their person knowing drugs would be found, or commit a crime in front of plenty of witnesses who could easily identify the perpetrator, and so forth.

Yet another is the big dick defense.

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What's Up in the 8th

If I were industrious, I'd do a year-in-review post on the 8th District's body of work, and if I were smart, I'd do a what-to-expect post, giving my prognostications of how the law might develop in the coming year.  I'm neither, at least not this morning, so we'll stick with highlights from the 8th's decisions over the past fortnight, one which was not particularly good for defendants.  Or, for that matter, for the court.

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Case Update

The Supreme Court's original jurisdiction, in lawsuits between states, is usually exercised in cases involving water rights or some border dispute.  Not so with a case Nebraska and Oklahoma are asking the Court to hear, which seeks to block part of Colorado's legalization of marijuana.  The states contend that since marijuana is still illegal under Federal law, the Federal government should force Colorado to obey it.  Several commentators have called this "fair weather Federalism," noting that the attorneys general in Nebraska and Oklahoma had been rabid in their opposition to Obamacare, especially the requirement that states expand Medicaid.  Even though the Federal government would pay for expansion, the Supreme Court struck down the law as an invasion of state's rights.  Ilya Somin at the Volokh Conspiracy notes that if the two states prevail, they "will also have set a very dangerous precedent - one that conservatives are likely to rue in other areas." 

Only one criminal case up for argument this month, but it's a big one:  Rodriguez v. US presents the question of whether an officer can extend a completed traffic stop for a canine sniff.  We'll have more on that when it comes up.  Those playing the home version of "Can You Top This?" in the category of stupid immigration law enforcement will have added fodder on January 14, when the Court hears argument in Mellouli v. Holder.  Mellouli has been removed from the country and faces permanent banishment from his American fiancée, by virtue of hiding four Adderall tablets in his sock, which earned him a conviction of drug paraphernalia under Kansas law.  The Court has previously rejected removal for possession of a small amount of marijuana and a single tablet of Xanax, so there's some hope that reason will prevail.

Down in Columbus, the only news of consequence is the resolution of several cases in the wake of the court's November decision in State v. Johnson, in which it held that the good faith exception saved the use of a GPS tracker on a car prior to SCOTUS' decision in US v. Jones requiring a warrant.  The "resolution" consisted of sending four cases back to the courts of appeals for reconsideration in light of Johnson.  We'll delve more deeply into that on Thursday.  The court does resume oral arguments this month, but with the exception of a death penalty case next week, no criminal cases are on tap until February.

Continue reading "Case Update" »

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Recent Entries

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    What's Up in the 8th
    When not to decide cases on allied offenses and pre-indictment delay
  • January 11, 2018
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  • January 10, 2018
    To the barricades!
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  • January 5, 2018
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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
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  • November 7, 2017
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