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March 2015 Archives

What's Up in the 8th

You've worked out a good deal for your client, to say the least.  You two charges of aggravated robbery, two of kidnapping, plus an aggravated murder and a felonious assault, and worked that down to one count of aggravated robbery and one of involuntary manslaughter.  So what's the client do?  A few days before sentencing, he tries to back out of the plea.

There's plenty of case law which says you don't have to file a motion to withdraw the plea if you don't think it would be in his best interest.  (Why that's the law, I'm not quite sure; that seems to be the role of a guardian ad litem, not a defense attorney.)  So you tell him that if he wants to file the motion, go ahead, but you're not going to help him.

Turns out he can't file the motion, either.

Continue reading "What's Up in the 8th" »

Case Update

There are estimates that as many as 50% of those charged with crimes are mentally ill, and mental illness was the feature in two Supreme Court cases a week apart.  Today, the Court will hear argument in Brumfield v. Cain.  Brumfield was convicted of murder and sentenced to die in 1993, and he argues that the Eighth Amendment requires that there be a separate hearing focused solely on whether the defendant is mentally disabled, and thus cannot be executed under the Supreme Court's decision in Atkins v. VirginiaAtkins came nine years after Brumfield was sentenced to die, so there's some merit to the point that the hearing then wouldn't have been informed by Atkins.  Whether Brumfield is even mentally disabled is arguable, at least to the state:  they point out that he "was subjected to six evaluations before the age of 18 and not one diagnosed him" as disabled.

A week ago, the Court heard oral arguments in San Francisco v. Sheehan.  Police responded to a call that Sheehan, who was also mentally disabled, was causing a disturbance in her home, and found her highly agitated and holding a small bread knife.  So they shot her five times.  She lived, which is somewhat unusual; hundreds of mentally ill people are killed by the police each year, as Sotomayor highlighted in the argument.  The issue before the Court was whether the police should have to take such a disability into account, and use a less confrontational method.  But no sooner had the lawyer for San Francisco opened her mouth, when Scalia chimed in with his view of how the issue should be framed:  whether the law protects "armed and violent suspects who are disabled."  Well, now that you phrase it that way... 

By the way, if you're in D.C., you might want to stop off and catch a play called The Originalist, focused on Scalia, which the author explains is intended "to use this combative, almost operatic figure to explore how two people on opposite sides of a political, social, and even legal spectrum can take a step toward one another, begin to listen, learn to hear and respect the other's argument."

I'll wait 'til it hits Redbox. 

We talked about the lone Ohio Supreme Court decision last week, State v. Ruff, on Thursday, so let's head over to the courts of appeals...

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The Supreme Court clarifies allied offenses

Kenneth Ruff was charged with aggravated burglary and the rape of three women.  DNA evidence foreclosed the contention that he wasn't the one who did it, leaving him with only the argument that the sex had been consensual.  That was a tough sell, given that the three women were a 74-year-old, one living in a group home because of mental illness, and a diabetic who used a wheelchair because her feet had to be amputated due to the disease.  His trial resulted in the inevitable conviction, and the judge ran each of the rape charges consecutive to the aggravated burglary, for a total of 40 years. 

The 1st District vacated the sentence and sent it back, finding that the aggravated burglary and the rapes were allied offenses:  the aggravated burglary was indicted under the "causing serious physical harm" subsection, and that wasn't complete until the rapes had occurred, so the two offenses were committed by the same conduct.  The Supreme Court decided this would be a good opportunity to clarify the "same conduct" test it announced in 2010 in State v. Johnson, and yesterday, in State v. Ruff, it did just that.

If only.

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An innocent man

Texas prosecutor John Jackson is facing charges of "obstruction of justice, making false statements, and concealing evidence" favorable to the defense in obtaining the conviction of Cameron Todd Willingham, who, by virtually every objective measure, was innocent of the crime he was convicted of.  Jackson can take some solace that the charges against him are being brought by the state bar, and the worst Jackson faces is the loss of his law license.  Willingham lost his life.

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What's Up in the 8th

Joinder, of defendants and crimes, is the subject of two cases from the 8th District last week.  Brandon Spates flunks the pencil test, but it's more disastrous for him than having to wear one of Frank Costanza's manssieres.   The court does clear up on option on sentencing which involves a gun spec, but nary an encouraging word is heard:  defendants get shut out this week.

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Case Update

A few years ago, I served as a moot court judge, and what I learned from the experience is that I don't want to be a moot court judge again.  The issue was whether a state which allowed private groups to buy a license plate with a special message could limit the plate's content, consistent with the First Amendment.  I wound up wading through about sixty pages of briefs and "background materials," although I do admit it was interesting stuff.  One of the judges on the panel did patent work, and the other had been retired for six years.  Go figure.

Maybe SCOTUS will ask us to sit in as guest justices for the oral argument this morning in Walker v. Sons of Confederate Veterans, which features that precise issue:  whether the State of Texas could refuse the group's request to issue a license plate featuring a Confederate flag.  With the special insight gained from my brief tenure on a pretend bench, I'll keep you posted.

Otherwise, the Court's gearing up for two momentous decisions:  the possible fate of Obamacare, in King v. Burwell, to be argued at the beginning of April, followed up at the end of the month with two cases on same-sex marriage, one on the power of states to ban it, the other on the power of states to refuse to recognize gay marriages granted in other states.  There'll be a total of two and a half hours of argument on those, one and a half on the former and one on the latter, with seven attorneys taking part.

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Thursday Roundup

Crime and... punishment?  Since the Supreme Court reinstituted the death penalty in 1977, Ohio has sentenced 419 defendants to death.  In the span of that near half century, it has executed precisely 52, about one in eight.  Another 136 still await their date with the gurney, but 231 -- nearly five times the number executed -- were removed from death row:  183 had their sentence or conviction overturned, 22 had their sentence commuted, and 26 died in prison before the sentence could be carried out.

That's not unusual, it turns out; nationwide, the chances of a capital defendant's sentence being overturned on appeal are more than twice the chance of them being executed, and when you throw in the two other outcomes, the chances of execution are one in four. 

Those are some of the details from a review of all death sentences handed during the "modern era" of capital punishment.  Actually, Ohio's about middle of the pack; California has executed just 13 of the 1,013 people it's sentenced to death, while Virginia has been much more efficient, executing 110 of the 152 who were given death sentences.

We often hear about how the death penalty affords closure to the victim's family, but the authors of the study make a good point in the Washington Post article announcing the results:

Ultimately, the American system of capital punishment arguably creates unnecessary suffering for both those defendants sentenced to death and the surviving family members of the victims of the crimes for which the defendants were convicted. A system that ensures prolonged court time, automatic appeals for the convicted inmate - most of whom are eventually successful - and only a small chance of actual execution is a system built on false promises for everyone, and indeed one that seems to verge on torture.

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Sex offender registration and the 8th Amendment

The wheels of justice turn slowly, but grind exceedingly fine.  And sometimes they grind people up.  We're going to find out whether Travis Blankenship is one of those people.

Blankenship, 21 at the time, had sex with a 15-year-old girl.  He wound up pleading guilty to an information charging him with one count of unlawful sexual conduct with a minor, a fourth degree felony.  That earned him ten days in jail.  It also earned him a Tier II sex offender status, which requires him to register for the next quarter century.  Last week, the Supreme Court held oral argument in his case to wrestle with the question of whether that registration requirement constituted cruel and unusual punishment.

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What's Up in the 8th

St. Patrick's Day in Cleveland is a holiday just a rung below Christmas, and on a court which features no fewer than three Gallaghers, we can anticipate that the 8th District will be represented in the parade.  As the judges march through the brisk mid-30's temperature, they can take comfort from the fact that I have not an unkind word about any of their decisions over the past couple weeks.  That, and green beer:  what more could you want?

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Case Update

SCOTUSblog informs us that "Monday's decisions in Perez v. Mortgage Bankers Association, holding that amendments to interpretative rules do not require notice-and-comment rulemaking, and Department of Transportation v. Association of American Railroads, holding that Amtrak is a governmental entity, continue to spawn coverage and commentary."  Not here; on the off chance that you read this blog after you're done perusing the Federal register on your ride in to work on Amtrak, you'll have to check out their coverage.  Our motto here at the Briefcase, "We read the cases so you don't have to," is hereby modified to add, "but not all of them."  The former case nullified the D.C. Circuit's rule that Federal agencies had to engage in notice-and-comment rulemaking, which was known as the Paralyzed Veterans doctrine.   Nice name.  The Court did accept one new case in its latest conference, concerning Florida's death penalty sentencing scheme, but that's not slated for argument until next term.

A long time ago, I had a jury come back with a not guilty verdict, only to have the judge berate the jurors for what he believed was a wrong outcome.  That's a pretty lousy thing to do:  you drag people to court and pay them $15 a day to do a job, then tell them what a crappy job they did.  Turns out it's against the judicial rules, too, as Judge Amy Salerno of the Franklin County Municipal Court learned.  After a jury returned a not guilty verdict in a misdemeanor assault case, she told them, in front of others in the courtroom, "Ninety-nine percent of the time, the jury is correct.  Now it's 98 percent. You got this wrong."  Four of the jurors complained to the administrative judge, and last week the Ohio Supreme Court publicly reprimanded her.

The court also heard oral argument last week in a bevy of criminal cases, one of which involves the question of whether requiring someone to register as a sex offender can be a violation of the 8th Amendment.  We'll talk about that one on Wednesday.

On to the courts of appeals...

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Vacation time

relax.pngNothing from SCOTUS this past week, nothing from the Columbus Seven, and just five 8th District decisions, only one of which bears extended discussion.  So it seems like a good time to take my quarterly vacation from the blog.  I'll see you next Monday.

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Reefer madness

The State of Washington allows residents to grow marijuana for recreational and medical use.  Of course, marijuana is still an illegal drug under Federal law.  The Department of Justice has issued two directives instructing US Attorneys not to prosecute cases against patients using medical marijuana.  But the US attorney for the eastern district of Washington announced his intent to "vigorously" target individuals "even if such activities are permitted under state law."

And that's exactly what he did.  In August of 2012, Federal agents raided the rural home of Larry Harvey, 70, and his wife, Rhonda Firestack-Harvey, 55.  The two, along with their son, daughter-in-law, and a friend had a small marijuana plot in a remote corner of their 33-acre property.  The Feds seized plants, $700 in cash, and some legally owned firearms.  The "Kettle Falls Five" were indicted for five felonies involving the manufacture and distribution of marijuana, despite the fact that the government couldn't point to a single instance of any of them selling the drug.  They were also charged with possession of a firearm in furtherance of a drug trafficking crime.  Conviction would result in a 10-year minimum mandatory prison sentence.

Only three of the five wound up going to trial.  Just before the trial started, the government dismissed the charges against Harvey because he was dying of pancreatic cancer.  The friend copped a plea and agreed to testify against the defendants in return for a 16-month sentence.  The judge ruled that the remaining defendants couldn't argue that their actions were in compliance with state law.

The jury came back with a conviction -- on the manufacture of marijuana charge.  It acquitted on the other four counts, the ones which involved mandatory prison time.  The prosecutor immediately asked the judge to remand the defendants until sentencing.  One of the spectators could be heard muttering, "Are you kidding?"  The judge denied the request. 

Sentencing is set for June 10.  The US Attorney said that the verdict would do nothing to change the way his office prosecutes these cases.

I'm old enough to remember the trial of the Panther 21.  The Black Panthers were a paramilitary group of black activists back in the 60's and early 70's, whose contributions were two-fold:  they were extraordinarily successful at scaring the living hell out of white people, and at getting themselves killed by each other or by the police. 

In 1969, the Panthers decided to conduct a coordinated attack on two police stations, several department stores, and an office building in New York City.  An extraordinarily inept organization, they put less thought in how to do so than I spend on preparing my weekly jaunt to the grocery store.  Twenty-one were caught and indicted.  The government spent eight months trying the case, relying primarily upon informants (one of whom had been diagnosed as a schizophrenic and pathological liar), in front of a grossly biased judge who did nothing to conceal his contempt for the defendants and their attorneys.  The culmination of all this was the prosecutor suffering the ignominy of sitting there while the jury foreman intoned "not guilty" to each of the 156 counts of the indictments. 

And so it is with political trials.  There were a lot of those in the 60's:  the Chicago Seven, Angela Davis, the Camden 28, Bobby Seale.  None stuck; the convictions of the Chicago Seven were reversed on appeal, and Davis, the Camden 28, and Seale were acquitted.  And, like the Panther 21, their acquittals were probably the result of jury nullification, the jury's repulsion at the government's use of the criminal law to press a political agenda.

There's an old saying that there are four boxes which protect our liberty:  soap, ballot, jury, and cartridge.  The Kettle Falls Five would certainly appreciate that.

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Another go on Crawford

On the surface, Ohio v. Clark presents a simple question.  A three and a half year old son came to school one day with some serious bruises.  The teacher asked who did it.  The boy said that Dee -- Darius Clark, his mother's boyfriend -- did it.  At trial, the teacher's statements, along with the boy's statements to various family members, the social worker, and the police, came in.  The boy's testimony did not; the judge ruled he was incompetent to testify.  Clark was convicted and sentenced to thirty years in prison.

The 8th District reversed, finding that the statements to the family members didn't qualify under EvidR 807, and that the statements to the others were "testimonial" under Crawford v. Washington.  The statements to the police and social worker were easy calls there, but the court also held that teachers, by virtue of their statutory duty to report abuse, were "government agents," and thus statements to them were testimonial as well.  The Ohio Supreme Court affirmed, and the Potomac Nine took it in, and heard argument on the case on Monday, on the simple question of whether the teachers should have been regarded as "government agents."

Of course, it wasn't that simple.  My takeaways, in order of importance:

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What's Up in the 8th

A couple of weeks ago, I suggested that the separate panels in State v. Fuller and State v. Latimore had obviously gotten together in the opinion-writing stage:  in both decisions, released the same day, using much of the same language, the two panels held that while a court can't go beyond the indictment in ordering restitution of a child support arrearage, it can order payment of the entire amount due as a condition of community control sanctions.

Maybe there should have been some collusion between the panels in State v. Ayesta and State v. Yapp.  

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Case Update

Ohio has contributed is fair share of significant Supreme Court decisions in criminal cases -- Mapp, Terry, and Roberts among them -- and it's slated to add to that collection with oral argument today in Ohio v. Clark.  If you put "'state v. clark' Crawford" in the search box on the right, you'll get my bloviations on the subject.  If you're not so inclined, the short version is that Clark's conviction for child rape was reversed because two teachers were allowed to tell the jury what the victim, who was declared incompetent to testify, told them about the abuse.  Both the 8th District and Ohio Supreme Court held that the teachers, by virtue of their statutory duty as mandatory reporters of abuse, were "government agents" for Crawford purposes, thus requiring that the child's statements be excluded as testimonial.  The Court's never ruled on the precise question of whether Crawford is limited to statements made to government agents, let alone who would be included as an agent.  I'll add to my bloviations with a post this week about the oral argument, and another when the decision comes down.  Your cup runneth over.

The Court did decide one criminal case last week, Yates v. US.  State and Federal wildlife officials had inspected Yates' fishing boat and found 69 grouper were too small.  They ordered him to port, but before he got there he tossed the fish overboard.  This resulted in is prosecution under the Sarbanes-Oxley Act, which makes it a crime to destroy "any record, document, or tangible object with the intent to impede, obstruct, or influence" a Federal investigation, even one that hasn't yet begun.  The case offered some opportunity to address prosecutor overreach and the Federalization of criminal law, but the Court, in a 5-4 decision, holds that Congress intended the phrase "tangible object" to include only an object "used to record or preserve information," and calls it a day.

In the past two weeks, the Ohio Supreme Court has issued three criminal decisions:  State v. White, State v. Brown, and State v. Black.  I am not making this up.  Black and Brown are simple:  the latter holds that a probate judge can't issue a search warrant (and I'm trying to figure out why anybody thought they should), and the former holds that the Interstate Detainer Act, which allows an incarcerated person to demand he be brought to trial on any pending charges, applies to a person held in a jail, as well as a state prison or correctional facility. 

White's a bit more complicated, and we'll talk about that later in the week.

On to the courts of appeals...

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