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...
Post-conviction work is not for those with self-esteem issues, so I was more than a little surprised at the outcome in State v. Mackey. Mackey filed a petition for post-conviction relief, seeking to reopen his 16-year-old conviction, attaching affidavits from two witnesses at his trial recanting their testimony. The trial judge denied it without a hearing, and there's plenty of case law saying that a judge has discretion to discount an affidavit. The 2nd District nonetheless reverses, finding that the judge should have held a hearing -- on whether Mackey was "unavoidably prevented" from discovering the recantations earlier, and thus was permitted to file a late petition. That's not the only weird thing about the case. Mackey was sentenced to 28 years in prison -- for "trafficking in drugs with a schoolyard specification, two counts of possession of drugs, one count of having a weapon while under disability, and one count of possession of criminal tools." Then, when he appealed the case, his lawyer never filed a brief, and the appeal was dismissed. Mackey filed a motion to reopen the appeal, but that was denied.
Ever have a client refuse a plea deal because he's sure the witnesses aren't going to show up? This week, I mean. In State v. Gott, it's the lawyer who harbors that belief. Damned if the witnesses are there on the day of trial, so he counsels Gott to take a plea. Gott does, then files a motion to vacate the plea, arguing that the only reason he copped was because his lawyer hadn't done anything to prepare for trial. And the lawyer readily agrees: he didn't hire an investigator, or talk to any of the 15 to 20 people identified as witnesses in the police report, nor to the two alleged victims, because he thought the case was going to be dismissed. The trial court denied the motion to withdraw, but the 6th District reverses, finding that counsel's failure to investigate the case constituted ineffective assistance of counsel, and warranted the grant of a motion to vacate the plea. A big factor was that the lawyer retained to file the motion to vacate had hired an investigator, who came up with some evidence that Gott might be innocent.
We all know that polygraph results aren't admissible in court absent a stipulation of the parties, but just mentioning it can create problems. In State v. Hamon, the defense lawyer tried to get the court to order the State to stipulate to a polygraph Hamon had taken. That went nowhere, so on cross-examination of the detective the lawyer elicited that Hamon had been asked to take a polygraph. The judge declared a mistrial, and Hamon subsequently contended that the indictment should have been dismissed because there was no manifest necessity for the mistrial. The 5th District affirms the denial of the motion, holding that the standards for declaring a mistrial are less when its prompted by improper conduct of defense counsel, and notes that if defense counsel's question in Hamon were proper, "the state would be permitted to use a defendant's refusal to submit to a polygraph test after being offered one as consciousness of the defendant's guilt."
Finally, this little tidbit from State v. Brown, on a motion to reopen an appeal, where "Brown now argues that his appellate counsel was ineffective for failing to raise 'winning issues.'" So that's the trick...