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.
State v. Marshall is a cautionary tale for lawyers looking to make civil settlements in criminal cases. Marshall had a lunch meeting with several people who knew the first victim, and suggested that he could arrange for a payment of $50,000 to compensate her for her injuries. After his client pled, he offered $50,000, again as "compensation," to another lawyer, who was representing someone who knew the second victim, to get her to "say something nice at sentencing." The panel - the case was spun off to the 10th District - rejects the notion that this was indeed intended as compensation, given that no civil lawsuit had been filed, nor had the victims indicated any intention to file one, and the figure was wholly unrelated to any actual damages they might have suffered.
The more interesting argument centered on the bribery statute, which provides that "no person, with purpose to corrupt a witness or improperly to influence a witness with respect to the witness's testimony in an official proceeding..." Marshall argued that the emphasized portion applies to both corrupting and influencing, i.e., that actual testimony in an official proceeding is required. The panel's rejection of this argument is a grammarian's delight, in which we find sentences like, "the 'last antecedent' rule of grammar provides that referential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent," and "'or' is a function word indicating alternatives between different things and that the use of 'or' indicates the legislature intended a separate and distinct identity to each of the articulated phrases."
This will be on the test.
I'm still waiting for the result in Doumbas, but I don't think Marshall is a harbinger of the outcome. I didn't make the bribery argument, banking mainly on insufficiency of the evidence, which was much more tenuous with regard to Doumbas than to Marshall. We'll see.
State v. Taylor is another appeal I handled, and that decision did come down, with results as unfortunate as Marshall's. Taylor was accused of molesting his four-year-old daughter, and the State's case was made iffier by the fact that the child testified that the father hadn't done anything. The prosecution sought to compensate by having everybody else testify to what the child told them; the social worker, for example, was allowed to read his entire nine-page report into the record, which contained numerous statements made by people who never appeared at trial. The panel concludes that although the trial judge "permitted the admission of an alarming amount of hearsay," it wasn't that alarming; the main evidence, the child's statements to the mother (who was seeking custody) were excited utterances, lending credence to my position that in Ohio, it is impossible for a child under six to say anything that is not an excited utterance.
There was evidence against Taylor, to be sure, a key one being the finding of his DNA inside the girl's underpants, the explanation - that it might have transferred in the laundry - being somewhat unconvincing. Still, the best indication of what the trial judge thought of the whole case was that he 29'd the kidnapping charge, and when Taylor was convicted of gross sexual imposition, gave him one year of community control sanctions.
If there were any lingering doubts about the futility of sentencing appeals, State v. Booker dispels them. For strangling his girlfriend, Booker gets 19 years consecutive time for involuntary manslaughter, kidnapping, felonious assault, domestic violence, and violating a protective order. His appeal argues the judge didn't give proper weight to seriousness and recidivism factors, but that's irrelevant; the appellate court has no jurisdiction to review how judge weighs factors, only whether he considered them. And we'll presume that he did, even if he didn't say that. And we won't consider other people's sentences in deciding whether his sentence is disproportionate to other people's. If you're thinking that it looks like at least some of those offenses would merge, you're right, except that Booker stipulated at the plea hearing that the offenses weren't allied, so that's binding. And his lawyer wasn't ineffective for agreeing to that. (Blackmon, Celebrezze, Stewart.)
In State v. Street the police find Street in his girlfriend's car, and a gun in the glove compartment. He gets charged with having weapons under disability and carrying a concealed weapon, is put on probation, but when he violates for the second time the judge max and stacks him with a three-year sentence.
Street's argument is that the offenses should've merged. The State concedes that the offenses can be committed with same conduct, but the court agrees that here there was a separate animus: "Street possessed the gun [sufficient for weapons under disability] when he retrieved it for his girlfriend, and he concealed it when he put it in the glove compartment of her car." That may be the correct result, but if that's the test, it's hard to see how the offenses would ever merge.