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July 2015 Archives

Friday Roundup

Good dog.  A few years back, I did a post on the reliability of drug dog sniffs.  The gist was that dogs often alert because they receive subconscious cues from their handlers.  One study I mentioned produced 225 alerts, all of them false.  The handlers had been told that the target scents would be marked by red paper, and the testers had also placed hidden sausages as decoy scents for the dogs.  The interesting thing about the test is that the false alerts were found twice as often at the sites designed to fool the handlers as the ones containing the sausages.

That might be the explanation for Lex, the drug-sniffing dog who's the subject of the 7th Circuit's recent decision in U.S. v. BentleyBentley had been the victim of the Bullshit Traffic Stop of the Week™ -- crossing into another lane on the highway without signaling - and the discovery of 15 kilograms of Columbia's primary export in a trap compartment in the car sent Bentley to prison for 20 years.  He appealed, claiming that the search of the car resulted from an alert by Lex, and that Lex wasn't reliable.

The panel admits that "Bentley put on a good case."  To say the least:  the evidence showed that Lex alerted a whopping 93% of the time, but in controlled conditions his accuracy rate was only 59.5%, "not much better than a coin flip."  In fact, Lex had been sent back to doggie school for two weeks in April of 2012 after he failed two simulated searches.

Most distressing to the panel was that Lex's handler rewarded Lex with a treat every time the dog alerted in the field. 

This giftee policy seems like a terrible way to promote accurate detection on the part of a service animal, lending credence to Bentley's argument that Lex's alert is more of a pretext for a search than an objective basis for probable cause.

The court nonetheless upholds the search, finding that a 59.5% success rate is sufficient to leap the low bar of probable cause, citing several cases where the success rate was less than that, including one where the dog's accuracy rate was only 43%.  The court does add a caution:

This should not become a race to the bottom, however. We hope and trust that the criminal justice establishment will work to improve the quality of training and the reliability of the animals they use, and we caution that a failure to do so can lead to suppression of evidence.

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P2P and child porn

I downloaded a couple of movies one time - the Bourne Supremacy was one of them, I think - without, ahem, paying for them, using a program called Vuze.  It's what's called a P2P (peer-to-peer) network; you can download stuff from other people's computers, and they can download stuff from yours.  I got a notice from my service provider telling me I'd done that and to stop, so I did.

Then a couple of months later I got another notice from my email provider telling me I'd done that and to please stop.   That's when I realized:  the program automatically placed anything I downloaded into a particular folder on my computer where it could be accessed by others.  Even though I wasn't downloading any more, the files were still sitting in that folder, and could be accessed by anyone else using the software.  That's how the movie people who monitor that sort of stuff found me.  If I'd moved the movies to some other folder, they wouldn't have.

Limewire is another peer-to-peer network.  It's a favorite for people who download music, movies - and child porn.  And it works the same way:  if you download a file, it automatically places it in a folder which can be accessed by other people.  Except if you do that with child porn, you don't get a notice from your service provider. 

You get indicted for distributing child pornography.  

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Sentencing "reform"

It's no secret that America is the incarceration capital of the world.  For every 100,000 people in this country, 716 are in prison.  By comparison, the rate is 148 in England, 103 in France, and 51 in Japan.  And that's just the Western democracies.  Think Iran is a lock-'em-up-and-throw-away-the-key kind of place?  Their rate is 284.  How about Uganda, certainly not the paradigm of individual liberty.  Their rate is 102.

President Obama's commutation of the sentences of 46 non-violent drug offenders was a drop in the bucket; it represented less than .02% of Federal prisoners.  But everybody, even normally "tough-on-crime" conservatives, have come around to the view that we've got to do something about "Incarceration Nation."

Well, not everybody.

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Case Update

The U.S. Supreme Court's 2014 term is over, so what are we going to talk about?  Why, the 2015 term, of course.  The Court's docket is almost half-full now, with 35 cases, eleven of them criminal, having been accepted for review.  Four concern sentencing issues, including two on capital punishment.  One tests Florida's procedure, which allows a jury to make a non-binding, and non-unanimous, recommendation of death, after which the judge makes his own determination of which aggravating factors apply, and whether they outweigh the mitigating factors.  Back in 2001, in Ring v. Arizona, the Court struck down an Arizona law which allowed the judge to determine whether the defendant was the actual killer, which would make him eligible for death, and also weigh the factors.  I'm not seeing a whole lot of daylight between that and the Florida scheme.

The other interesting thing of note is that five of the eleven grants come in appeals from state cases.  Normally, state court decisions wind up being reviewed in appeals from habeas proceedings, but that has a distorting effect because of the highly deferential treatment of the state court decision required by the habeas statutes.  It may be that the Court has decided that's a problem it doesn't encounter on direct review.

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Pre-indictment delay

The guiding principle of my life - which at this point seems to have devolved to "I'd rather be lucky than good" - was proved out again in the 8th District's decision last week in State v. Jones.  Back in November, in State v. Mack, the 8th affirmed the dismissal of a case for pre-indictment delay (discussed here).  The trial judge in Jones dismissed the case for that reason, too, and assigned me to handle the defense of the State's appeal.  When I found out that one of the judges on my panel was the judge who'd written the opinion in Mack, I figured there was no way I was going to lose.

Once again, my innate modesty had caused me to underestimate my capabilities.  A couple months after the oral argument, I got a card from the court saying that because the panel had come to a decision contrary to Mack, it was referring the case for an en banc determination.  That's what came out last week, with the court, by a 7-4 vote (one judge recused herself), affirming the dismissal of the indictment. 

And it's a big one.

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Manana

Some stuff came up, so I'll be doing my post about the 8th District's en banc decision on pre-indictment delay tomorrow.  I handled the case, and I need little prompting to blog about a case I win.  (Normally I need some time to recover from the shock of that happening, but that's another story.)

I was interviewed by one of the local news channels about the case, but they didn't run the story; as you might guess, the visuals weren't that good.  I told the cameraman to make sure he got my good side, but he told me that would be tough since I was sitting on it.

Ba-da-boom.

Catch you tomorrow. 

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Once bitten, twice shy

This is why hard cases make bad law.

A few years back, Van Williams, a teacher, was charged with rape of a 14-year-old boy who was one of his students.  The state introduced evidence that he'd had a consensual sexual relationship with another one of his students, this one 16, twelve years earlier.  The 8th District, in an en banc decision, reversed, finding that the other acts evidence should have been excluded.  It was an excellent decision, articulating the criteria under which 404(B) evidence should be admitted.

And it was probably the wrong result.  In its 2012 decision reversing the 8th District, the Supreme Court noted that the evidence showed "that Williams had targeted teenage males who had no father figure to gain their trust and confidence and groom them for sexual activity with the intent of sexual gratification," which was enough to show a "scheme or plan," one of the exceptions under 404(B).

So two weeks ago, in State v. Dove, the 8th District took on another 404(B) issue in a case involving child sexual abuse.  It followed the criteria the Supreme Court laid down in Williams for evaluating whether such evidence should be admitted, and decided that despite it being an "extremely close case," the judge was correct in allowing it.

And it was probably the wrong result.

Continue reading "Once bitten, twice shy" »

What's Up in the 8th

The 8th's decision two weeks ago in State v. Cody is really about Bobby Thompson, the fraudster who got a 28-year sentence for running a national scam targeting disabled veterans.  Well, it really is about Cody; Thompson, it turns out, was Cody's nom de scam.  Cody's convictions were affirmed last year, although the panel did lop one year off his sentence.  This is an appeal from his petition for post-conviction relief, which was denied by the trial court.  The first claim is that his lawyer was ineffective because he "refused to pursue certain witnesses that would have established that Cody was working for the CIA."  'Nuff said. 

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

Case Update

So, what can you write about the Supreme Court when its term is over?  Well, you can write about how nasty Antonin Scalia has been this term.  That's what law professor Edward Chemerinksy argued in an op-ed in the LA Times, noting that his students had taken to imitating Scalia's "truculent" style, "turning in legal briefs laced with derision and ad hominem barbs."  Oh, the humanity!

That certainly isn't a good thing, and Scalia, in his book with Brian Garner, "The Art of Persuading Judges," cautions against doing exactly that:  "An attack on opposing counsel undercuts the persuasive force of any legal argument."

As you may have gathered, I have a sarcastic streak, and it sometimes works its way into my briefs.  One thing I'll be very careful about, though, is criticizing the lower court judge.  A long time ago, I wrote about one judge that his position was "intellectually bankrupt," and I learned three things:  (1) Yes, judges do read appellate briefs on their cases, (2) the judge may not have been the sharpest knife in the drawer, but he knew what "intellectually bankrupt" meant, and (3) don't unnecessarily piss off a judge:  that came back to bite me for several years.

So, what can you write about the Ohio Supreme Court when it doesn't come down with any decisions of interest except a disciplinary case where the attorney gets suspended for two years, with one year stayed, for having sex with numerous clients?  The best part is the court's recitation of similar cases, where we find that lawyers are a decidedly randy lot.  My favorite was the lawyer who had sex with a client in a jail holding cell.  I've been in holding cells, and I've had female clients in jail, and believe me, there's not enough Viagra in the world.

Well, turned both of those discussion into Stuff About Me.  Let's see if I can work that same magic with the cases from the courts of appeals.

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Friday Roundup

Law of Unintended Consequences, Chapter 144:  "Religious freedom" laws are the latest effort to staunch the onslaught of the gay rights movement.  When Indiana passed one this spring, criticism erupted over whether those laws allow business owners to refuse service to gays on religious grounds, forcing Indiana to modify its statute.

But maybe not enough of them, it turns out.  The state's sex registration law bans offenders from any church located on the same property as a school.  As this article reports, last week the state ACLU filed a lawsuit - the first under the new law, no less - contending that the ban violated the religious freedoms of two unnamed sex offenders:  they couldn't attend the church they wanted to, because it had a school inside, as do a number of churches.

One of cosponsors the legislation admitted that "clearly nobody had thought through what all the negative ramifications might be for people."  Yeah, I'll bet.

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Supreme Court Recap - 2014 Term

I do a review every year of the US Supreme Court decisions; this is the one for the 2014 term.  You can find previous ones by typing "Supreme Court Recap," followed by the year you're looking for, in the search box on the right.  Below is a quick description of each case, followed by links to post I did discussing oral argument or the decision.  Some good decisions on mens rea in criminal cases, a decent 4th Amendment decision on drug dog sniffs, and a very bad decision on the Confrontation Clause.

Continue reading "Supreme Court Recap - 2014 Term" »

Case Update - Appellate Edition

SCOTUS finished up its term last week - you may have heard - and I spent the last couple weeks talking about several Ohio Supreme Court decisions.  (Speaking of the former, I'll do my annual recap of US Supreme Court decisions later this week.)  The Columbus Seven didn't come out with anything new last week, and I haven't done my customary review of appellate court decisions in a few weeks, so let's get to that.

We'll start with a trifecta from the 10th District.

Continue reading "Case Update - Appellate Edition" »

What's Up in the 8th

Oh, the days of yore in criminal discovery...  I'd file a request, three weeks later I'd get a form response giving me the names of witnesses and any statement my client had made, and then I'd trundle off to the pretrial, where the prosecutor would read me the police report, or at least those portions of it he deemed relevant.

But that's so five minutes ago.  Now I file the request electronically, and a couple of days later the discovery will be posted on the defense portal, police reports and all.  There'll also be another form, the State's request for discovery from me, but since I don't have anything, I'll ignore it.

Not after the 8th's decision last week in State v. Geraci.  

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

Random thoughts

lawyer getting paid.jpgTaking care of business.  One time before I die, just one lousy time, I'd like to quote a client a fee and see his eyes widen as he shakes his head and murmurs, "Mr. Bensing, I don't see any way I can get that kind of money."  Instead of seeing his eyes widen and his face break into a broad smile as he says, "Wow!  That's a lot less than I thought it would be!"

I didn't get into this for the money, and it's a damned good thing.  A close version of that scenario played out last week, and not for the first time.  I once had a client say, "Yeah, they told me you charged less than other lawyers."  That doesn't happen so much anymore -- I've chased away several clients with fee quotes -- but still a bit too much for my tastes.

I mentioned this to another lawyer, who said, "You know what's the worst?  You quote 'em a fee, and they pull out a wad of cash and peel off a bunch of hundreds, and there's still some left on the roll."

I feel your pain, brother man.

Continue reading "Random thoughts" »

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Recent Entries

  • March 20, 2017
    Taking time off
    I'm taking the week off. Have a major brief due on Thursday, plus a trial in Federal court starting next Monday. Plus, I'm pretty sure that Obama wiretapped me, too, so I'm working on getting to the bottom of that....
  • March 17, 2017
    What's Up with the 8th?
    The 8th District cases come out every Thursday. By about ten o'clock in the morning, the court will have posted the "weekly decision list" on its web site. It will give a summary of the case, usually in a sentence...
  • March 14, 2017
    Rippo and Pena-Rodriguez
    SCOTUS issues decisions on judicial recusal and biased jurors
  • March 13, 2017
    Case Update
    A SCOTUS decision on career offenders, and appellate cases on what a judge can consider in sentencing, and untimely motions to suppress
  • March 9, 2017
    A switch in time
    The court reverses itself in Gonzalez
  • March 8, 2017
    What's Up in the 8th
    More sentencing stories, and the right way to handle an Anders brief
  • March 7, 2017
    Case Update
    Knock and announce and the Ohio Constitution, and Anders briefs.
  • March 6, 2017
    Never mind
    The Ohio Supreme Court reverses Gonzalez.
  • March 2, 2017
    Of bright lines and bookbags
    Oral argument in State v. Oles and State v. Polk
  • February 28, 2017
    What's Up in the 8th
    A good outcome in a search case, probably a good outcome (to be) in a drug case, and a very bad outcome in a child rape case