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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.

The Ohio Supreme Court spent most of last week cracking down on miscreant attorneys.  The court did nothing to tarnish its nationwide reputation as one of the hardest disciplinarians in the country, with some of the cases having a criminal flavor.  The attorney in Disciplinary Counsel v. Cohen, defending a murder case, gave money to a prosecution witness and purchased bus fare for him out of town.  He got only three years community control from the trial court on the obstruction and attempted tampering charge, but an indefinite suspension from the Supreme Court; the attorney's full cooperation, the lack of any prior disciplinary record, and the absence of any aggravating factors were enough to save his ticket.

One of the surest ways to get a call from disciplinary counsel is to bounce a check from your IOLTA account.  And if that IOLTA account has $100,000 you're holding in trust for someone, you don't cooperate with the investigation and in fact lie to the investigators, things get a whole lot worse.  An indefinite suspension for the lawyer in Disciplinary Counsel v. Rammelsberg, too.

One of the other ways to get into trouble as a lawyer is to get in over your head; just because you've got a law degree doesn't mean you can handle every legal issue competently.  (I've learned that the hard way; although it's never resulted in a disciplinary problem, it's earned me more than a few sleepless nights.)  Federal habeas work is a specialty, and you get the feeling that the lawyer in Columbus Bar Association v. Smith didn't realize what she was getting into.  She misses some deadlines, fails to communicate with her clients, and gets a public reprimand and a valuable lesson. 

In the courts of appeals...

In the wake of the spate of police shootings of unarmed blacks over the past six months or so, a meme has emerged in conservative circles:  all of this could have been avoided had the suspect merely cooperated with the police.  Whether that's true or not, there's a flip side to it, as demonstrated by the 2nd District's decision in State v. Greene.  An officer had responded to the scene of the crime, noticed Greene walking away in a hurried manner, and asked Greene if he could talk to him.  And, of course, consent to be patted down, which Greene did, and which resulted in the discovery of a bag of heroin gel capsules.  Greene argues that "it defies logic and common sense" to believe that Greene would consent to a search knowing that drugs would be discovered, but the argument "my client isn't that stupid" is rarely true, and even more rarely successful.

But there's an interesting twist:  Greene testified that he complied with the officer's requests because "that's an area of town you're not going to not do what the police say, or you're going to get in trouble."  The court sympathizes that "a person may feel intimidated when interacting with the police and in saying 'no' to a request from a police officer, but "the case law is clear that an individual's subjective apprehension in refusing a police officer's request does not, by itself, render the consent involuntary."  One wonders how events might have unfolded had Greene refused to speak to the officer, or refused a patdown.  One has difficulty imagining the officer apologizing for taking up Greene's time, and walking away.

If you're going to make a plea bargain, you better be careful how to word it, at least in the 5th District.  The agreement in State v. Morrison specified that the "the State agrees to make no recommendation and defer sentencing to the discretion of the court."  Morrison and his attorney must have been nonplussed, then, when the prosecutor got up at the sentencing hearing and asked for maximum consecutive sentences.  Well, Morrison, anyway; his attorney didn't object, which is the basis for ineffective assistance of counsel, the second assignment of error in his appeal, the first being that the plea bargain was breached.

The panel rebuffs the claims, noting that the agreement did provide that both parties "reserve the right to present arguments regarding sentencing," and besides, it's up to the trial court to impose the sentence, and he can disregard the prosecutor's recommendation.  (He didn't here.)  I'm sorry, but this is simply a horrible decision.  If getting up and saying "we think you should impose maximum consecutive sentences" isn't a "recommendation," I don't know what would be.

Like it makes a difference.  The defendant in State v. Setty was convicted of numerous counts of rape of two children, and wound up sentenced to two consecutive life terms without parole.  The 5th District had reversed, holding that the indictment and the verdict forms didn't contain the necessary specifications to impose life without parole.  So it's sent back, and Setty winds up with three consecutive ten-to-life terms.  Setty appeals again, claiming that the judge didn't make the findings necessary for consecutive sentences -- he did -- and that the sentence is vindictive.  The court rejects the second contention, finding that "30 to life is less than life without parole."  Amen to that, but unless Setty's on the shy side of thirty, it's a distinction without a difference.  As anyone serving a life sentence for anything, let alone a sex offense, can tell you, just because you're up for parole doesn't mean you'll get it.  Think of the last time you saw a headline, "child rapist paroled."

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