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.
Your client, on trial for stabbing someone to death, testifies that he didn't stab anyone. Is it ineffective assistance if you get up and argue self-defense in closing? Not according to the 5th District's decision in State v. Pace. Well, not exactly. The court notes that self-defense is a "confession and avoidance" defense, where the defendant admits the elements of the offense but asserts a justification for it. For that reason, claiming self-defense while insisting that you didn't commit a crime is contradictory, and isn't allowed. The court then pretty much skips the whole issue by deciding that the outcome of the trial wouldn't have been different if the attorney hadn't argued self-defense.
Here's something you won't see on Law and Order. In State v. Trainer, two police officers are summoned to a Wal-Mart and told that a man exhibiting slurred speech and appearing to be impaired had entered the store's restroom. Finding the man in a locked bathroom stall and suspecting that he was using heroin, one of the officers... Oh, let's let the 2nd District tell it:
At this point, Officer Jenkins entered the adjacent stall, stood on the toilet seat, looked over the partition, "and what I saw was a large silver kitchen spoon with quite a bit of yellowish powdery substance already on it and a syringe that had some kind of liquid already on it." Jenkins then left his stall, told Mast what he had seen, drew his firearm, forced his way into Trainer's stall, and took Trainer into custody.
Trainer argued that the plain view exception to the warrant requirement didn't apply, because the police officer was not in a place where he had a right to be. That begs the question of whether one has a right to privacy in a bathroom stall, sufficient to foreclose the right of the police to stand on an adjoining toilet to peer down on the occupant. Foregoing the opportunity to rehash an argument that certainly bedeviled the Founders at the time of the Framing, the court agrees with Trainer on this point, but finds that his activities gave the police probable cause, and the toilet's obvious capabilities in getting rid of evidence constituted exigent circumstances dispensing with the need for a warrant.
While the US Supreme Court hasn't prescribed exactly what is required for a valid waiver of counsel when a defendant wishes to proceed pro se, the Ohio Supreme Court has, as the 2nd District notes in State v. Street:
To be valid [a waiver of counsel] must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.
Street gets a new trial; while the judge did tell him the perils of self-representation and the nature of the charges and penalties, he didn't advise him of the possible defenses and potential mitigating circumstances.
In State v. Castillo, a cop pulls a car over, finds that the passenger had a protection order issued against him. After getting the driver's information, he goes back to the station, checks that on the computer, and finds it's the person protected by the order against Castillo. He testifies to that effect at trial, and Castillo is convicted.
No problem, right? After all, EvidR 801(D)(1)(c) - and yes, you knew it by heart - allows evidence of an out-of-court identification. The 3d District correctly notes, though, that it wasn't the officer who made the out-of-court identification, it was the computer: the officer was testifying as to what he saw on the computer, and that's hearsay. The court notes that the State could have solved the problem by offering the computer printout, properly authenticated, into evidence.
I remember I got my first computer in -
Oh, shut up.