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June 2015 Archives

What's Up in the 8th

After an oral argument, it's common for your clients to ask, "How long before the court rules on the case?"  A good guess is two to three months, although I've had them take as much as six months.

In November of 2013, two Cleveland lawyers, Tim Marshall and Marc Doumbas, were convicted of bribing the victims of their client's sexual batteries to go easy on recommendations of sentencing.  I handled Doumbas' appeal.  Both cases were argued eight and a half months ago. 

The wait for Marshall ended this week, with bad news.  

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Case Update - OSC Edition

The notion of the Roberts Court as a conservative one took a hit last week, with the Court striking down state gay marriage bans and upholding the Affordable Care Act, the latter in an opinion written by the Chief Justice.  Tucked away was a win for liberals in a race discrimination case - the Court rejected the contention that plaintiffs claiming housing discrimination had to show intentional discrimination and held that proof of disparate impact would be sufficient - that surprised many. 

In one criminal decision of note, Johnson v. US, the Court struck down the residual clause in the Armed Career Criminal Act (oral argument discussed here) as being unconstitutionally vague.

They were busy down in Columbus, too, handing down decisions in two criminal cases and hearing oral arguments in two others.  Let's take a look.

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New life for the Ohio Constitution

Sometimes, it's hard to come up with stuff to write about, but not so this week, and probably next.  We discussed Ohio v. Clark, SCOTUS' most recent case on the continued evisceration of the Confrontation Clause, on Wednesday, and the Ohio Supreme Court has issued three decisions on criminal cases just this week.  We'll talk about State v. Brown today.  It has some good news for 4th Amendment fans, even though strictly speaking it's not about the 4th Amendment.

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Crawford takes another beating

I was a little surprised when the 8th District reversed Darius Clark's conviction for child abuse.  I was very surprised when the Ohio Supreme Court, in a 4-3 decision, affirmed the 8th District.  I wasn't at all surprised when the United States Supreme unanimously reversed the Ohio courts last week in Ohio v. Clark.

Clark was convicted of several felonious assault counts for the brutal beating of two children, a 3-year-old boy and an 18-month-old girl.  (To cement his status as a Really Bad Human Being, Clark had been left alone with the children because he was the pimp for their mother, whom he regularly sent to Washington, D.C., to work as a prostitute.)  At issue in the case was the admissibility of statements made by the boy to two teachers, telling them that "Dee Dee" did it when they saw bruises on him and asked how he got them. 

The child was found incompetent to testify, but the judge let the teachers' statements in.  The 8th District, and the Ohio Supreme Court, determined that because the teachers were under a mandatory duty to report child abuse they were acting as agents of law enforcement, rendering any statements made by the child testimonial and thus barred by Crawford v. Washington

Four takeaways from the SCOTUS decision:

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What's Up in the 8th

Either trial judges here are getting better or appellate lawyers are getting worse:  at least half a dozen appeals raise nothing other than manifest weight or sufficiency of the evidence.  Typical is one I handled, State v. BlandBland was charged with breaking into a house and robbing a man at gunpoint.  He got a major break from the jury when it convicted him of only burglary, abduction and theft, acquitting him of aggravated burglary, kidnapping, and the firearms specs. 

While making their getaway, the robbers, one of whom was wearing a ski mask with a single eyehole, scraped their car against the side of the house.  Three days later a cop chased a car which turned out to have damage to the one side - the cops even matched the broken side-view mirror with the one left at the scene of the robbery - and found a gun and a ski mask with one eyehole underneath the front seat.  The cop testified that Bland was the guy who ran from the scene, and it's his girlfriend's car.  (Which she reports stolen ten minutes after the stop.)  Oh, and did I tell you the part where Bland's fingerprints were found on the table where the stolen TV had been sitting?  My major accomplishment was keeping a straight face during oral argument.

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Case Update - SCOTUS edition

Next week, the United States Supreme Court is going to make a ruling or two - in the same-sex marriage and Obamacare cases - which will change the course of American history, because that's what the Supreme Court does from time to time.  The decisions announced last week did not go quite that far, but one of them, Ohio v. Clark, might have changed the course of the Confrontation Clause jurisprudence articulated just a decade ago in Crawford v. WashingtonClark overruled the Ohio Supreme Court's decision that a child's statements to teachers about being sexually abused had to be excluded because the teachers' role as "mandatory reporters" made them government agents for Crawford purposes, rendering the child's statements testimonial.  We'll cover that later this week.

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Another look at Ruff

This is my 2,040th post on this blog since I started it in May of 2006, and sometimes I think about half of them have been about the law on allied offenses.  You can get the gist of them, minus the snark, by reading the 8th District's decision last week in State v. Anthony.  

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What's Up in the 8th

Thumbnail image for BatistaFireSquad.jpgMy own view of home contractors - basically, that every third one should be shot, to improve the overall quality and to serve as a lesson to the others - is shaped by experiences as both a customer and a lawyer.  Many years ago, I was tangentially involved in a case involving a contractor whose business model was to prey on poor people in the ghetto:  sell them a $14,000 kitchen on a home that wasn't worth $20,000, and get a mortgage which he'd then sell to a company in Dallas.  This led to a lawsuit filed by a young black lawyer, and my friend, who was representing the contractor, told me that the Federal judge handling the case, a fearsome sort, would have little tolerance for this sort of nonsense.

He was right, but not in the way he anticipated.  At the first pretrial, the judge informed us that the contractor and the mortgage company would cancel the mortgages and pay each homeowner $20,000 and another $75,000 for the lawyer, or the judge would refer the case for prosecution to the U.S. Attorney's Office.  That was an offer the defense couldn't refuse.

Wonder what the judge would've done to Joseph Fasino.

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Case Update

Back in 2002, Congress passed a law allowing U.S. citizens who were born in Jerusalem to claim that they were born in Israel.  Pursuant to that law, Menachim Zitovsky's parents requested the U.S. State Department to issue him a passport stating that, but the State Department refused.  That led to a thirteen-year legal battle, and on Monday, the executive branch emerged with winner; in Zitevsky v. Kerry, SCOTUS held that the president retained the sole power to recognize foreign governments, and that included what to put on passports.  There was much wailing and gnashing of teeth from the chattering class, and if you're so inclined, you can read about it here.

scalia commencment.pngOnly one decision?  There's a reason for that.  SCOTUSblog kindly provides us with a map of the various commencement speeches and other endeavors the justices provided last week.  Those other endeavors included this:

On May 11, Justices Ruth Bader Ginsburg and Stephen Breyer served as judges at the Shakespeare Theatre Company Bard Association's 2015 Annual Mock Trial, where they heard arguments on whether the fictitious Family Court of La Mancha had properly deemed Don Quixote mentally incompetent and therefore in need of a guardian.

Don't know how that worked out, but if the Court Psychiatric Clinic here was involved, Quixote had clear sailing. Based on my experience, the Clinic's apparent definition of competence, at least in terms of standing trial, is the ability to distinguish the judge from a cabbage. 

The cupboard down in Columbus was equally barren, with not even a disciplinary or tax decision.  The only thing worth writing about there is two oral arguments coming up next week.  The first features State Shabazz, and 8th District decision (discussed here) which held that to convict someone of complicity in a gun crime, the State had to show that the defendant had some foreknowledge that a gun would be used.  It's based on the Supreme Court's decision to the same effect in Rosemond v. US (discussed here), and its potential effects are huge.

The second is State v. Klembus, another 8th District decision (discussed here), concerning a statute which provides that a sixth drunk driving offense within 20 years fourth degree felony with a minimum sixty day sentence, unless the prosecutor includes a specification; in that case, it's still a fourth degree felony, but now with a minimum sentence of one to five years.  The 8th tossed it for the due process violation, so we'll see how that goes.

In the courts of appeals...

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Revisiting Elonis

Last Thursday, I wrote about the Supreme Court's decision in Elonis v. US, in which it reversed Elonis' conviction for making threats in some Facebook posts.  I was dismissive of the opinion, which dodged the First Amendment issue, and did little to clarify the one issue the Court did address, the intent required for violation of the statute.  And I concluded that there was no application of Elonis to the Ohio statutes on menacing and stalking, since those, unlike the Federal statute here, did require a knowing intent.

But there was something nagging at me, and when my buddy John Martin called me and told me he thought I'd missed the boat, I knew he wasn't talking about the ferry to Staten Island.  The Ohio courts have expanded the concept of "strict liability" over the past decade or so, and Elonis' analysis of the mens rea requirement in criminal statutes might give you some fodder for future arguments.

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Multimedia Edition

As they used to say on SCTV, "it blowed up real good."

In this case, it was my computer.  There I was on Thursday evening, writing a blog post/working on my Great American Novel/playing Civ5 with the Brave New World expansion pack.  I'd noticed that the fan in my computer would make a whirring sound every now and then, and I'd gotten a diagnostics message that my hard drive was on the brink of failure, but since that message had been popping up for a while -- like, oh, the last year and a half -- I figured it was old news.

Then, as the Chambers Brothers sang, Time Has Come Today:

And then there was a sound like something had shortened out, and my computer up and died.  And fried; I could smell something burning.

This probably won't surprise you, but I'm very computer-dependent.  I immediately got on the Dell site and ordered another computer, coughing up $109 for next-day delivery.  Since I ordered after 3:00, the computer wouldn't be there until Monday, but I could bring my work one home for the weekend,  Which I did, knocking out the blog posts for Monday and Tuesday.

Apparently, though, "next day delivery" has a different meaning for FedEx.  The computer arrived at their Cleveland warehouse on Sunday night, and there it sat all day Monday, not even working its way onto a truck.

act in hast.pngIt did arrive on Tuesday, at which point I was reminded of the slogan, "act in haste, regret at leisure."  The computer didn't have the advanced graphics card which allows me to have two programs open -- word processor and internet browser, usually -- side by side, and it was as slow as Justice Pfeifer asking a question in oral argument before the Ohio Supreme Court. And, of course, it's not like you can just sit down at a new computer and start up.  You have to install the programs, download stuff, go through the updates, set up your mail accounts...

All of this, of course, is a roundabout way of telling you that I don't have a post ready for today.  The good news is that I've figured out how to implant videos in my posts, and I can now spice up my posts with more graphical eye candy.

Of course, the bad news is that I've figured out how to implant videos in my posts, and I can now spice up my posts with more graphical eye candy.  And so, poor reader, instead of absorbing, sponge-like, my insightful and provocative comments about Ohio criminal law, you'll waste your time watching 25-year-old videos of TV shows and concerts.

See you tomorrow, where I have to come up with a video that is at least loosely tied in to the concept of mens rea.  

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What's Up in the 8th

There was a dry spell in the 8th District for a while there, where it seemed that a win for defendants was as rare as a good Adam Sandler movie, but the rains have finally come:  three more reversals this week, and one that might've been.

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Case Update

The good news for Samantha Elauf is that she gets to work at Abercrombie & Fitch, despite the company's turning her down for the job because she wears a Muslim headscarf.  That was the result of the Supreme Court's decision last week in EEOC v. Abercrombie & Fitch.  The bad news for Samantha Elauf is she gets to work at Abercrombie & Fitch, a company whose advertising method seems to embrace concepts of child porn, having some years ago run an ad campaign for thongs marketed to ten-year-olds, with slogans like "eye candy" and "wink wink" printed on the front.

The other decision was Elonis v. US, which I talked about on Thursday.  I'd suggested that the opinion was narrowly written, of little consequence, and with no application to Ohio law.  I got a call from my buddy John Martin telling me that I didn't know what I was talking about, and he may be right.  We'll find out when I take another look at Elonis later in the week.

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Getting rid of Bistricky

Thumbnail image for brelo.pngMichael Brelo's journey began with him being one of the hundred or so police officers chasing Timothy Russell's car through the streets of Cleveland, a chase that culminated with officers firing 137 shots at Russell's car after it was cornered in an elementary school parking lot.  Russell and his passenger, Malissa Williams, were shot a combined 47 times, more, allegedly, than Bonnie and Clyde had been when they met their demise.

Brelo's journey ended on May 23 in the common pleas courtroom of Judge John O'Donnell.  Brelo had been charged with voluntary manslaughter and various other crimes for his part in the shootout; he'd jumped on the hood of Russell's Malibu and fired 15 shots into the car.  The defense chose to try the case to the judge, and after a four-week trial, O'Donnell acquitted Brelo of all charges.

Well, it turns out that Brelo's journey isn't quite over.  County Prosecutor Tim McGinty wants the 8th District Court of Appeals to take a look at the case.

That's right, he's appealing an acquittal.

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Well, that clears that up

Anthony Douglas Elonis didn't take it well when his wife of seven years left him, taking their two kids with her.  He assumed the persona of "Tone Dougie," and took to Facebook to post "rap" lyrics he'd written.  While Jay Z had nothing to fear from Elonis' entry into the field, his wife believed she did, and in truth Elonis' lyrics went well beyond the violence and misogyny customary in the genre.  That earned him a conviction under 18 USC 875(c), which makes it a crime to transmit in interstate commerce "any communication containing a threat ... to injure the person of another," and a 44-month prison sentence.

On Monday, in Elonis v. US, the Supreme Court reversed his conviction.  Let's take a look at why, and see if that has any ramifications for Ohio's statutes on menacing.

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What's Up in the 8th

The bad news for defendants in the 8th District last week is that the closest thing to a win was a reversal and remand for the trial judge to consider whether to impose a mandatory fine in a drug case.  The good news is that there were only four criminal cases out of the 8th last week, so the opportunity for damage was limited.   

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Case Update

The Supreme Court handed down several decisions, but none so momentous as its grant of cert in Evenewl v. Abbott.  The Court enunciated the gender-insensitive "one man, one vote" principle back in 1964, in Reynolds v. Sims.  Evenwel will give the Court the opportunity to clarify how equality is to be measured:  should districts be apportioned by population, voting-age population, or registered voters?  The chattering class is already predicting the apocalyptic portents such a decision might have, and if you're so inclined, you can read them here.  The other big grant was in Foster v. Humphrey, involving a Batson issue, which we discussed last week.

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