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May 2015 Archives

Another look at Batson?

Batson v. Kentucky is the Supreme Court case holding that you can't use peremptory challenges to excuse people from juries for reasons of race.  This portion of an Ohio Supreme Court case explains how it works; basically, if you've got a black defendant and the prosecutor removes a black from the jury, you can object, and the prosecutor has to come up with a race-neutral explanation.

That's how it works in theory.  In practice, well.... The 8th District did grant a rare reversal on a Batson challenge last year in State v. Strong (discussed here), but other than that, the only reversal I can remember in this county is one where the judge sua sponte sustained a challenge to the defense attorney's removal of a white juror.  SCOTUS did seem to tighten things up with its 2008 decision in Snyder v. Louisiana (oral argument, and facts, discussed here), seeming to indicate that appellate courts should be less deferential in their review of trial judges' rulings on Batson challenges, but backed off of that three years later in Thaler v. Haynes.

The problem, of course, is with the "race-neutral" explanation.  How it works in practice is that unless the prosecutor is dumb enough to say that he doesn't want "coloreds" on the jury, everybody's going to let it slide.

Or unless he's dumb enough to write down his plan of making sure there aren't any blacks on the jury.

Continue reading "Another look at Batson?" »

What's Up in the 8th

As the man said in The Friends of Eddie Coyle, life is hard, and it's a lot harder if you're stupid.  James Jackson seeks to elevate stupid to an art form.  After releasing Jackson on bond after a plea to having a weapon under disability, child endangering, and theft in three separate cases, the judge warned Jackson that "people who pick up new cases while on bond to me suffer severe penalties."  It took Jackson less than two weeks to accomplish that feat, which resulted in another plea to burglary.

But not to worry.  Why?  Because, as Jackson explained to various people, he'd conned the judge into believing that he had a drug problem so as to gain the judge's mercy.  This explanation, unfortunately, came in numerous calls Jackson made from the jail.  You know, the calls that begin with a voice telling you they're being monitored.  After they were played at the sentencing hearing on all four cases, mercy was nowhere on the judge's agenda; he meted out over seven years in consecutive sentences, and in State v. Jackson, the 8th District tells Jackson there's not a damned thing they're going to do about it.

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Case Update

SCOTUS justices returned from a two-week vacation to issue decisions in six cases last week, only two of which pertained to criminal matters, even tangentially.  The first, Henderson v. US, dealt with someone convicted of a firearms offense.  Henderson had surrendered his firearms on arrest, and the conviction meant he couldn't have them back.  He made arrangements to have them transferred to a third party, but the trial court and Eleventh Circuit held this couldn't be permitted because of the doctrine of "constructive possession":  although the police retained physical possession of the guns -- and certainly to the exclusion of Henderson -- the courts held that Henderson was still the actual equitable possessor.  The Supreme Court unanimously disposed of this nonsense in a brisk eight pages.

In San Francisco v. Sheehan, the police responded to a call at a home for the mentally ill, forced their way into the room of the woman being complained of, and observed her armed with a knife and making death threats.  So they shot her.  The Court found the officers had qualified immunity because it was not established at the time that the Fourth Amendment requires officers to take precautionary steps to accommodate a mentally ill person.  Although it had granted review on the issue of whether the Americans with Disabilities Act required accommodation of a mentally ill arrestee, it left that issue for another day.

Huh?  I'm certainly not a fan of the apparent willingness of some police officers nowadays to use deadly force as a first, rather than last, resort, but I'm confident that nobody who debated the ADA in Congress in 1990 had the faintest idea that it would potentially govern police-citizen encounters.  

Continue reading "Case Update" »

The good faith exception and other stuff

The cops walk past a hotel room, and through the open window they spot a bag of drugs lying on the bed.  They knock on the door, the occupant opens it, and they seize and arrest him, and which point one cop takes two steps into the room and picks up the bag.

Good search or bad?  That's the situation presented in the 10th District's decision last week in State v. Thomas, and it's worth a walk through it.

Continue reading "The good faith exception and other stuff" »

Selling judges

I remember seeing an ad about twenty years ago for a common pleas judge who was running for the appellate bench.  It showed him slamming the door of a jail cell occupied by some evil-looking miscreant, the obvious implication being that the judge's rulings would heavily disfavor the criminal class.  A bit over the top, but those types of ads in judicial campaigns were exceedingly rare; most simply featured the candidate and his Stepford family in front of a somewhat modest but well-kept house, with him telling us how he was diligent and trustworthy and had several other attributes normally attributed to the Boy Scouts.

That was then.

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What's Up in the 8th

Eighteen decisions this week from the 8th District in criminal cases, and only two were wins for the defense.  And the outcome in one, State v. Rodriguez, was governed by binding precedent in the form of the en banc decision in State v. Mace:  a journal entry saying that post-release controls are imposed "for the maximum period allowed" doesn't cut it.  Let's hit the highlights.

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

Case Update

Oral arguments are done in SCOTUS, and now we're just awaiting the decisions:  thirty-four of them, to be precise, or about a half of the Court's docket for the term.  In addition to the biggies on Obamacare and gay marriage, there are over a half-dozen criminal decisions still pending, the most significant of which is probably Ohio v. Clark (oral argument discussed here.)  In other Court-related news, Natalie Portman has been chosen to play Ruth Bader Ginsburg in a movie about Ginsburg's fight for equal rights for women.  Yes, Natalie Portman.  Lest that give you pause, Portman graduated from Harvard undergrad; Ginsburg graduated from Harvard Law, where she was one of nine women in a class of 500.

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Friday Roundup

Going the extra mile.  A couple of weeks ago, I wrote about the oral argument in the Supreme Court in Glossip v. Gross, which involved the latest development in the evolution of the death penalty in America.  We've come a long way, baby, since Gary Gilmore was executed by firing squad in 1977, the first person to suffer that fate after the Supreme Court re-legitimized capital punishment in Gregg v. Georgia, overruling its decision four years earlier in Furman v. Georgia.  (What is it about Georgia?)  Glossip presents an important issue.  Over 85% of all executions in America since 1977 have been performed by lethal injection, but the drugs which were commonly used for that purpose are no longer available, because the companies which manufacture them don't allow it.

That's prompted several states to look for other methods; in fact, Oklahoma's governor just signed a bill allowing the use of nitrogen gas should Glossip come out the wrong way for the State.  Let's just hope nobody who's in charge of making those decisions got any ideas from the story the other day:

North Korea's Defence Minister Hyon Yong-chol has been executed for showing disloyalty to leader Kim Jong-un, South Korea's spy agency has told parliament.

MPs were told Mr. Hyon was killed on 30 April by anti-aircraft fire in front of an audience of hundreds, the Yonhap news agency reports.

Now, I realize that over the past 60+ years North Korea has been run by dictators who make Joe Stalin look like Mr. Rogers, and Jong-un, the current one, takes bat-shit crazy to a whole 'nuther level.  But still:  anti-aircraft fire?  (And keep in mind that Yong-chol's display of disloyalty took the form of falling asleep during one of Jong-un's speeches, an understandable faux-pas since I'm guessing that "Jong-un" and "silver-tongued" has never appeared in the same sentence.)  But apparently in North Korea, when they're not coming up with different ways to cook bark, they're figuring out different methods of executing people who commit some real or imagined offense against the Supreme Leader.  Death by mortar fire is another favorite.   No, I am not making that up.  I think.

A year ago, Dennis McGuire's execution here in Ohio went seriously bad when it took him 23 minutes to die, with him spending his final minutes writhing on the gurney.  If Ohio's legislators had been willing to go a little more over the top, all that bad publicity could have been avoided.  Just sayin'.  

Continue reading "Friday Roundup" »

Getting the mark

The education of the criminal bar continues apace, and they just don't understand how things work here in Cuyahoga County.

I belong to the Ohio Association of Criminal Defense Lawyers, and they have a nice listserv:  a great place to go if you need a boilerplate motion, some advice about a search issue, or who you can get as an expert on a particular issue.  Last week somebody wrote in saying they had a case here where the client was charged with a felony four drug possession.  He'd tried to get a misdemeanor or a felony five, without success:  the file had been marked to the felony four, and the prosecutor was unwilling to request a change.  The lawyer wanted to know if the mark was likely to get better on the day of trial.

And the response was, "what is this 'mark' of which you speak?"

Continue reading "Getting the mark" »

What's Up in the 8th

I'm handing an appeal of a perjury case, the first time I've had a case involving that charge in all my years of practice.  The 8th District's decision last week in State v. Smith confirms how rare a prosecution for perjury is:  they constitute about half of one percent of Federal prosecutions, which, ironically, is probably about the same percentage of trials that go without somebody lying under oath.  The opinion asserts that you have a better chance of being struck by lightning than being prosecuted for perjury, although the source it sites gives a discomfiting 1 in 12,000 lifetime chance being struck by lightning.  In other words, you have a better chance of being struck by lightning on your way to buy a lottery ticket than you do of winning the lottery.  Ironies abound...

Anyway, as the opinion puts it, why did lightning strike Smith?

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

Case Update

On Thursday, it'll be exactly nine years since I started this blog.  Please don't spend more than $50 on gifts for me.

Supreme Court law clerks could certainly pony up more; a few years back I read that the average clerk got hired at a salary of over $200,000 after they finished their stint, which was only slightly less than the justices they used to work for are paid.  But they play a big role at the Court, as a recent symposium on the role of the clerks reported.  The Court has "cert pool"; a single law clerk prepares a memo on certiorari petitions and shares it with the other chambers, and a review of 9,500 cases shows that the justices follow it 75% of the time.  Not sure of the significance of that, considering that less than 1% of petitions are granted.  You crunch the numbers.

In Renaissance Italy, artists had patrons; following the spate of Supreme Court decisions which released the floodgates of money in political campaigns, each presidential candidate seems to need one, or else suffer an early exit from the race.  SCOTUS backed off of that a bit last week in Williams-Yulee v. Florida Bar, upholding a Florida rule barring judicial candidates from personally asking for campaign donations.  The basis was allowing this would lead people to have less faith in the integrity of the judiciary.  How their faith would be reinforced by campaign committees doing the work is left unexplained in the decision.  Oh, and the rule does allow the judge to write thank-you notes for contributions, so there's that.

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Inferences and particularity

Your clients often ask after oral argument, "How long 'til the court makes a decision?"  I argued State v. Castagnola in the Supreme Court on May 29, 2014.  It took precisely eleven months for them to come down with the decision.

It was worth the wait.  Six of the eleven judges who looked at the search in State v. Castagnola upheld it.  Fortunately for me, four of the five who didn't were on the Supreme Court.  And they made some nice 4th Amendment law in the process.  

Continue reading "Inferences and particularity" »

It's coming, it's coming

The post on the Supreme Court's decision in State v. Castagnola is taking a little longer than I'd anticipated.  I'll have it up tomorrow.

Continue reading "It's coming, it's coming" »

Is a dog sniff a search after all?

Two weeks ago, the Supreme Court struck down a search of a car based on a drug sniff in Rodriguez v. United States.  That's good news for the defense bar and for those who've come to worry that the War on Drugs has rendered the Fourth Amendment pretty much of a dead letter.  As always, though, the devil's in the details:  the opinion is narrower than we might have liked, but in several respects it's broader, too.

God, I'm starting to sound like Yoda.  Let's take a look.

Continue reading "Is a dog sniff a search after all?" »

What's Up in the 8th

Most lawyers would appreciate the line from Bob Dylan's Stuck Inside of Mobile with the Memphis Blues Again:

An' here I sit so patiently
Waiting to find out what price
You have to pay to get out of
Going through all these things twice.

So, probably, would the defendant in State v. Allen.  He gets his consecutive sentences vacated because the panel concludes that the judge failed to make two of the three required findings, but what he had to do to get there!  He filed a pro se appeal, but that was dismissed as untimely.  His lawyer also filed one, but that was dismissed for lack of a final appealable order:  the judge hadn't disposed of all the counts in the judgment entry (one count had been nollied).  The judge entered a nunc pro tunc entry correcting that, and Allen appealed again, only to have that one dismissed for the same reason:  the entry improperly deferred determination of restitution to a later date.  Fourth time was the charm.

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

He's baaaack!

Nice to be back after two weeks, and plenty to write about:  in my absence, both SCOTUS and the Ohio Supreme Court came down with major 4th Amendment decisions.  We'll tackle them later this week, but today we'll catch up with some SCOTUS arguments and the one other major decision from the Columbus Seven.

Besides handing down the decision in the search case, the Potomac Nine also heard oral argument in two other criminal cases.  (There was also an argument on something about gay marriage, but that one pretty much flew under the radar.)  One was Glossip v. Gross, a challenge to Oklahoma's lethal injection protocol.  Killing somebody, at least when the state is doing it, requires use of three drugs, the first to render the inmate unconscious.  The companies making the drugs designed to do that have stopped selling it for that purpose, and so Oklahoma is resorting to midazolam.  That's an anxiety drug, not a sedative, though, and the first time the state used it, the inmate who took 43 minutes to die, writhing on the gurney until he expired from a heart attack. 

The exchanges were sometimes nasty -- the exchanges with the justices, I'm talking about -- to the extent that the Chief Justice was "happy" to give one of the attorneys an extra five minutes, because "to an extent that's unusual even in this Court, you have been listening, rather than talking."  What he was listening to was the conservative justices complaining about the "guerilla warfare" against the death penalty:  basically, to make it virtually impossible to administer.  Due to the shrinking availability of the drugs, Oklahoma's governor signed a law two weeks ago allowing the use of nitrogen gas as a method in the event that the Supreme Court disallows the current procedure.  A mask would be placed over the inmate's mouth and nose, and he would be given pure nitrogen, which would asphyxiate him.  Sooner or later, I suppose.

The Armed Career Criminal Act mandates a 15-year minimum sentence for a defendant who is found with a gun and has three prior violent felonies, including state-law crimes.  What's a violent felony?  While the statute lists various specific crimes, it has a "residual clause":  any felony that "otherwise involves conduct that presents a serious potential risk of physical injury to another."

Vague much?  The Court's tackled the clause five separate times since 2007, each time upholding it but becoming increasingly uneasy with it.  Congress hasn't done much of anything the past six years or so, and fixing the residual clause seems to be far down the list of priorities, whatever they may be.  The Court might do the job for them.  The issue in Johnson v. U.S. is whether possession of a sawed-off shotgun is a violent felony, and when the Court heard argument on it in November, nobody argued that the statute was a problem; the defendant didn't even raise the issue.  So the Court rescheduled argument and directed the parties to address the constitutional question of vagueness.  To say the least, the oral argument didn't go well for the government; there seem to be at least six votes to strike down the clause.

Continue reading "He's baaaack!" »

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