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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?

Because she allegedly lied about her boyfriend sexually molesting her daughter.  A big part of her claim was that the child, nine at the time, had contracted herpes from the assault.  That was dealt a huge blow when the defense discovered medical records during trial that the daughter had been treated for a genital rash, and prescribed a medication used to treat herpes, before she met the mother's boyfriend.  The judge dismissed the case, and sent a letter to the administrative judge and the county prosecutor asking for an investigation of Smith, who had testified that her daughter had never been treated for herpes before Smith entered the picture.

At Smith's trial, the State called the judge who'd presided over the boyfriend's trial, and asked him questions about his background, including the "excellent" ratings he'd received from local bar associations.  They had him read the letter he'd sent, which included the assertion that Smith's testimony had been "patently false."  They had him testify that he believed Smith's testimony to be "absolutely" material, the other element for perjury.

I'm guessing that somewhere around the second sentence, you realized that the case had gone completely off the rails.  How this got by everybody at trial -- including the defense attorney, who never objected to any of it -- is puzzling, almost as puzzling as the fact that the opinion reversing doesn't even garner the agreement of either of the other two judges; one concurs only in judgement, and one dissents.

Failure to object also arises in Cleveland v. Williams.  Williams was charged with domestic violence against his girlfriend, but she didn't show at trial, so the police officers who'd responded to the scene were allowed to testify as to everything she'd told them.  The attorney doesn't object, but the panel gives him a pass on the grounds that he "strenuously" argued that the judge shouldn't consider the officer's testimony.  Of course, if he'd objected, and the evidence had been inadmissible -- a subject to which we'll turn in a moment -- the judge couldn't have considered it.  The court also cites cases holding that failure to object to a single question is rarely deemed ineffective assistance (this wasn't a single question), and that "experienced trial counsel learn that objections to each potentially objectionable event could actually act to their party's detriment" (this was a bench trial).

But let's go back to the admissibility issue.  The panel finds first that the girlfriend's statements were "excited utterances," and considering the flexibility of exception, it's hard to quibble with that.  But that still leaves the Crawford issue, which the panel disposes of with the claim that the statements fall within the "emergency" qualification on Crawford:  statements which are intended to aid in prosecution are testimonial, but statements made to the police responding to an emergency are not.

What "emergency" were the police responding to at that point?  The only thing the panel mentions is that "Williams had not yet been apprehended, and Lewis was injured and crying."  The latter certainly goes to the excited utterance exception, but that doesn't qualify it as an emergency.  As for the former, Williams might not have been apprehended, but he certainly presented no danger to the woman once the police arrived.  Contrast that with the Supreme Court's clarification of the emergency doctrine in Michigan v. Bryant:  there you had an unknown armed gunman on the loose, and it was understandable that the police would do everything to learn who he was and where he might be by questioning the victim.  That's not the situation here, and Williams comes uncomfortably close to holding that, at least in domestic violence situations, anything the victim tells the police at the scene can come in as long as the perpetrator hasn't been apprehended. 

The 8th's journey on immigration cases continues its zig-zag pattern.  At issue is whether the judge's advisement to a non-citizen, required under RC 2943.031, that a guilty plea might have adverse immigration consequences cures any problem of lack of advice, or misadvice, by the defendant's lawyer on that subject.  In a 2010 case, State v. Bains, the court in dicta suggested it might, but subsequent decisions elevated it to a holding.  More recently, panels have seen the problem with that -- the judge's compliance with the Fifth Amendment requirement that a plea be knowing, voluntary, and intelligent doesn't solve the Sixth Amendment issue of right to effective counsel. 

The split reached its acme two months ago, when the panel in State v. Yapp adhered to Bains, while the panel in State v. Ayesta distanced itself from it.  Then two weeks ago the Yapp panel vacated its earlier decision and reversed itself.  So last week the Ayesta panel reconsidered.  Fortunately, it came to the same conclusion, although throwing in some language about how the court's advisement can be considered in determining whether the defendant can establish the prejudice prong for ineffective assistance, but it doesn't preclude such a finding.  As good as it gets, for now at least.

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