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February 2015 Archives

Another round on Padilla

Back in 2010, the Supreme Court ruled in Padilla v. Kentucky (discussed here) that an attorney's failure to properly advise a non-citizen client of the potential ramifications of a guilty plea on his immigration status constituted ineffective assistance of counsel.  Prior to Padilla, the 8th District had been very good at vacating pleas of non-citizens.  Oddly enough, after Padilla, the 8th became much less lenient in that regard.

Last week, in State v. Ayesta, the 8th took another shot at the issue.  As is the case with so much of life, there's good news and bad news.  

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What's Up in the 8th

Sometimes, my reading of the 8th District's decisions each week leads to bafflement.  Bafflement about how the court came to a particular decision, or why the State or the defendant made a particular argument on appeal, or even why a case arose.  This week I hit the trifecta.

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Scheduling change

Due to an extremely bad case of brief-writing, I'm delaying blog posts for a couple of days.  The Case Update will be postponed until next week, and the 8th District roundup will be postponed until Wednesday.  I'll have some ruminations on Thursday and Friday, which could change your life, or not.

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Thursday Roundup

The social network.  There's a case in the Supreme Court, Elonis v. US, which was argued in December and should be coming out soon.  Elonis was convicted of making threats in interstate commerce by posting rap lyrics on Facebook threatening his wife.  There are some First Amendment issues at play, but for the most part it's a case of statutory interpretation:   Elonis contends that the government should have to prove he intended to threaten his wife, while the government argues it only has to show that the average person would have objectively viewed the statements as threatening.  I was hoping to learn in oral argument that Scalia was on Facebook so that I could friend him, but that didn't happen.

The use of rap lyrics as evidence against Elonis is unusual, because he's white.  It's become routine for prosecutors to use rap lyrics to convict black defendants of crimes or prove that they were in gangs in order to add extra prison time under "gang enhancement" statutes.  Last June, Vonte Skinner was convicted of attempted murder in New Jersey, based largely on notebooks full of lyrics he'd written, including this one:  "Two to your helmet and four slugs drillin' your cheek to blow your face off and leave your brain caved in the street."  Not for the squeamish, but the state supreme court reversed, finding the evidence more prejudicial than probative, pointedly noting, "One would not presume that Bob Marley, who wrote the well-known song 'I Shot the Sheriff,' actually shot a sheriff." 

Don't expect prosecutors to back off.  As one commentator observed, "I don't know if there's any probative value. The only value it has is to scare the hell out of white juries, and it's effective."

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Indigent assignments and the "Top 20"

Tim McGinty is nothing if not persistent.  For years, as a common pleas judge here in Cuyahoga County, he railed that the system of assigning counsel for indigent defendants was "corrupt":  judges would assign lawyers cases in return for campaign contributions.  He took up the cudgel when he became county prosecutor two years ago.

McGinty's argument gained traction this past year when one judge, locked in a heated race for re-election, spent ten weeks, instead of the ordinary one or two, on the arraignment bench doling out case assignments.  He fired off a five-page public records request to the court, demanding every scrap of paper concerning the assignment system over the past five years.  The resulting brouhaha with John Russo, the court's administrative judge, attracted the attention of Chief Justice Maureen O'Connor, who "persuaded" the parties to kick the whole thing over to the Commission on the Rules of Superintendence.  And last week, a sub-committee of the commission heard statements by McGinty, Russo, and two representatives of the Cuyahoga Criminal Defense Lawyers Association, one a current president and one a past president.

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What's Up in the 8th

We're talking about money:  three of the 8th's cases last week dealt with that, two of them in the child support context and one concerning mandatory fines.  That wasn't the highlight, though.  The yin was provided by a reversal of an attempted murder conviction on the basis of erroneous admission of 404(B) evidence, and the yang by a case allowing victims to testify by way of Skype.

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Case Update

SCOTUS coverage continues to be focused on its upcoming oral arguments on the Affordable Care Act and gay marriage.  On the latter front, Alabama Supreme Court Justice Roy Moore got spanked with the same Supremacy Clause paddle that was used against some of his brethren who sought to claim that Federal district judge decisions on desegregation had to take a second seat to state laws on the subject; his "order" to state probate court judges to refuse to issue same-sex marriage licenses was mostly ignored after the Supreme Court denied a stay of the decision, and the Federal judge reinforced it with an order directing the probate court judges to grant the licenses.  The challenge to Obamacare is more complex, but recent concerns have emerged that the plaintiffs in the case may lack standing.

During the oral argument a few weeks ago in Rodriguez v. US (discussed here), Chief Justice Roberts said at one point, "Usually, people have told me, when you're stopped, the officer says, 'License and registration.'"  Laughter followed, and the attorney played along, saying, "I've had friends that say the same thing, Mr. Chief Justice."  An article on Slate suggests that the Roberts may not have been kidding, and that his naivete about what a police stop entails may lead to some sloppy decision-making by the court.  An interesting read, although the observation that the justices lack the common touch isn't exactly earth-shattering.  

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Of corroborating evidence and trash pulls

I was going to talk today about the oral arguments in the Ohio Supreme Court last week, but why talk about that when there's some actual decisions to discuss.  Two of them, in fact:  State v. Bevly and State v. JonesAnd, at least for the criminal bar, there's good news and bad news.

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What's required by Anders

I filed my first Anders brief about fifteen years ago.  The defendant, an employee at Sears, had swiped some clothing.  When she carried the stuff out to her car at the end of her shift, the security guards followed her.  She jumped in the car and took off, bumping one of the guards with her door.  She skidded on some ice in the parking lot and hit another car.  That led to charges of aggravated robbery, felonious assault, aggravated vehicular assault, and theft.

The jury convicted her of theft, and acquitted her of everything else.  I called up the lawyer, and she said she might have screwed up:  she couldn't remember whether there was proof that the amount of the goods was over $500 (this was back before it was upped to $1,000), so it may only have been a misdemeanor.  I wrote about a ten-page Anders brief, explaining all this, suggesting that the only potential assignment of error was ineffective assistance of counsel for not arguing the amount, but pointing out that it was pretty absurd to suggest that the attorney who'd gotten that astonishing result was a dullard, and besides, one of the witnesses from the store had indeed testified to the amount.

Turns out, according to the 8th District's decision last week in State v. Taylor, what I wrote wasn't good enough.  But neither was how the court handled it.

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What's Up in the 8th

Two defendants figure they're better off without a lawyer, and for one that proves to be true, at least for now.  Somebody doesn't read the fine print, and the court decides to lighten its work load, but it remains to be seen how that will turn out.  The court makes the right decision on a Padilla issue -- finally.  By the time we get to the decision about Anders briefs, we're too tuckered out, so we'll kick that to tomorrow.

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Case Update

With most of the buzz from SCOTUS this week centering on the arguments a month from now on the Affordable Care Act (didn't we do this before?) and the gay marriage cases, an under-the-radar tidbit emerges from Justice Kagan's admission that goes hunting with Justice Scalia.  Well, better him than Dick Cheney, I suppose. 

The Court's argument docket has been filled for March, and one of the first cases up is Ohio v. Clark.  As my numberless legions of faithful readers know, the Ohio Supreme Court in Clark (discussed here), much to the astonishment of anyone who watched the oral argument, upheld the 8th District's decision that teachers' testimony about a child's statement concerning sexual abuse violated Crawford, because the teachers were "state agents" by virtue of their duties as mandatory reporters.  I explained the issues in Clark when SCOTUS accepted cert, I'll talk about the oral argument when it happens, and I'll favor you with my sage insights when the decision comes down.  Because that's the kind of guy I am. 

I'm not the kind of guy who's going to write about last week's Ohio Supreme Court decisions, because there weren't any.  Any that I'd want to write about or you'd want to read about, in any event.  There were four criminal cases argued last week, though, and we'll talk about one or more of them on Thursday.

In the courts of appeals... 

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Revisiting Pepper Pike v. Doe

Back in 1978, a woman filed charges claiming that her husband's ex-wife had assaulted her.  The charges were bogus, and the case was dismissed on the day of trial.  The defendant filed a motion to have the arrest and all other records of the case expunged.  The Supreme Court, in Pepper Pike v. Doe, decided that given the "unusual and exceptional circumstances" of the case, the court had inherent authority to expunge the records.

That led to the passage of RC 2953.51, which allows for the sealing of an arrest record if the defendant is acquitted or the charges are dismissed.  What we learned from the Supreme Court last week is that the expungement statutes for sealing an arrest record or a conviction now define the court's authority, regardless of what "unusual" or "exceptional" circumstances exist. 

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What's Up in the 8th

Christopher Dowen caught a break from the jury.  He'd gone over to Prentice Deitrich-Smith's house to resolve a dispute about a woman, and according to several witnesses, Dowen was last seen chasing Dietrich-Smith.  That was shortly before the latter was found lying in the street, stabbed in the stomach.  And shortly after that, Dowen gave a friend a pen-knife, and the friend hid it under the seat of Dowen's car.  Nonetheless, the jury acquitted him of the murder charge, convicting him only of reckless homicide and tampering with evidence.

The trial judge and the 8th District didn't show him nearly as much love.

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Case Update

Three years ago, in Miller v. Alabama, the Supreme Court held that the Eighth Amendment prohibits a legislature from making life without parole a mandatory sentence for a juvenile homicide defender.  One of the questions left open was what to do with the more than a thousand juvenile homicide defenders who'd already been sentenced to life without parole.  The Supreme Court granted cert this term to possibly answer that question, in Toca v. Louisiana.  But last week Toca, who'd spent 30 years in prison for a murder he committed when he was 17, made a deal with the state:  he'd plead to two counts of aggravated robbery, the murder conviction would be vacated, and he'd go free.  That almost certainly moots the case.

SCOTUS didn't come down with any decisions last week, but the Ohio Supreme Court did, with four criminal cases, one of which we talked about on Thursday.  Two others, State v. Radcliff and State v. Vanzandt deal with sealing of convictions, and we'll talk about them on Wednesday.  

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