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August 2015 Archives

Case Update

Nothing new from SCOTUS, save the application for a stay by a Kentucky clerk who claims that requiring her to issue marriage licenses to gay people will result in her eternal damnation.  Oral arguments are still a month away, and we'll start talking about that when the time comes nigh.

There was a significant case from the Ohio Supreme Court, C.K. v. StateWhen the 8th District reversed C.K.'s murder conviction back in 2011 for manifest weight, I described the facts in this manner: 

[C.K] was convicted of murder; during a crack binge, he broke into some poor guy named Coleman's house three times and finally shot him.  Whoops, sorry; it was Coleman who was on a crack binge and broke into C.K.'s house three times, and the last time was in the process of beating up Coleman's girlfriend when C.K. shot him, after Coleman "reached behind his back for his gun." 

Coleman didn't have a gun, but if you reasonably believe there's one, that's just as good for self-defense purposes.  C.K. knew Coleman had killed a man in 1990, and had been convicted of carrying a concealed weapon, and that was more than sufficient for the court to conclude that C.K. had a bona fide belief that he was in danger, and that the jury lost its way in not acquitting him on self-defense grounds.

So it went back for retrial, but that didn't happen:  the State dismissed the case.  When C.K. filed a motion to seal the records of his arrest, the prosecutor asserted that it did not intend to reindict C.K. at that time, but that "it could in the future."  The trial court granted the application to seal, and the 8th District affirmed.

C.K. then filed an action for declaratory judgment seeking compensation as a wrongfully convicted individual.  The trial court granted summary judgment for the State, and C.K. hit the trifecta:  the 8th District again sided with him, and reversed.

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A wink and a nod

You're trying to work out a deal on the rape case you're handling.  You've got a final pretrial a week before trial, where you and the prosecutor go in to talk to the judge.  You explain that your client basically wants to know what kind of sentence he's looking at.  The three of you start talking about a possible sentencing range of three to five, maybe three to six years.  The judge either said this range could be fair or would be fair; you're not sure which, but it's pretty much the same, and besides, she told you you could take that discussion back to your client.

Which you did.  And your client pled.

So I'm guessing you're pretty pissed off when the judge gives your guy seven years.

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What's Up in the 8th

There must be something in the water up here:  of the eight criminal cases decided by the 8th District last week, five involved sex offenses.  The only "win" for defendants comes in State v. Locke, where Locke, a 42-year-old policeman, has sex with a 15-year-old on numerous occasions, and "used his cellphone to record his crimes," marking the moment that the selfie craze officially got out of hand.  

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Case Update

The Pew Research Center takes a poll at the end of each Supreme Court term asking respondents whether they have a favorable or unfavorable view of the Court.  The last tally, a month ago, was 48-43 favorable.  That's the first time there was less than a double-digit margin; nine years ago, the result was 63-27 favorable.

While being in positive territory makes the Court unique among the three branches - the number of people who have a favorable view of Congress is less than the number who believe Elvis is still alive - several commentators and politicians have taken aim at what they believe is the biggest problem with the Court:  lifetime appointments.  There's some merit to that, especially given the increase in longevity over the two-plus centuries since the Constitution was written.  The first ten justices served an average of eight and a half years; the average of the last ten was twenty-one and half. 

There has been no shortage of proposals to remedy this, such as that advanced by Republican presidential candidate Ted Cruz to have a justice face a retention election after eight years on the bench.  Others have advocated limiting justices to a single term of somewhere around twelve years.  That would take a constitutional amendment, though, and good luck with that.  So a group called Fix the Court has come up with another alternative:  each justice, during the nomination process, would promise to serve no more than eighteen years.

I wonder if not resigning at the end of that time would be an impeachable offense?

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The Lizard King

So I'm talking to my friend Paul the other day, and he tells me his son Scott, Thumbnail image for repitile-trial-strategy-jury-consultant.jpg
who's an attorney, has an interview with a firm in Virginia.  "I've got a lawyer friend in Maryland," he says, "and she told me to make sure Scott brushes up on the reptile theory of litigation, the firm he's interviewing with is big on that."


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What's Up in the 8th

Sometimes the court will bail you out.  Sometimes it won't.  Those different approaches led to very different results in two cases last week.

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Case Update

I'll be here all week, be sure to tip your waitstaff.  So what do we do here when SCOTUS isn't in session?  Well, after we get done talking about what they did do and what they might do in the future, we trot out things like the podcast by Boston University law professor Jay Wexler, who has spent the last decade counting out how many times each justice elicits laughter during oral argument.  How do we know when that happens?  Because the transcript of the oral argument will say [laughter].  For example, Kennedy brought down the house during the argument in Yates v. United States, a case concerning a fishing boat captain's conviction under the Sarbanes-Oxley Act for tossing back illegally-caught grouper, by riposting, "Perhaps Congress should have called this the Sarbanes Oxley-Grouper Act."

Hey, you had to be there.

Scalia was the biggest cut-up, followed by Breyer some ways back.  Ginsburg racked up only two, which, according to the prof, is two more than she usually gets.  Given its current broadcasting woes, look for NBC to greenlight the pilot for a series.  "Real Justices of the Supreme Court," maybe.

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Camera shy

In this age of selfies, there's one group which is increasingly reluctant to be photographed:  police officers, especially those engaged in less than professional conduct while dealing with miscreants.  One of the more recent was Officer Michael Slager of North Charleston, South Carolina, shooting an unarmed black man in the back as he was fleeing after a traffic stop. 

Or non-miscreants; one of my favorites is this video, showing New York City police officer Patrick Pogan decking a bicycle rider during the Critical Mass ride in 2008.  

The response of the police to the videotaping of their misdeeds is to shoot -- er, arrest -- the messenger.  For example, Anthony Graber's helmet camera captured his stop for speeding by a plainclothes detective in an unmarked car:

He posted the video to Youtube.  A couple days later the Maryland police showed up at his door with a search warrant, and seized four computers, two laptops, and his camera.  He was charged with "interception of a wire communication," a felony punishable by up to 5 years in prison, based on a Maryland law which prohibits taping a conversation unless both parties agree.

The use of "eavesdropping" laws, at least in those states which require the consent of both parties to the taping, is the common method of stifling efforts to videotape police officers, but it's not a particularly effective one.  Those laws prohibit taping where one has a "reasonable expectation of privacy," and it's hard to make the case that a police officer engaged in a confrontation with a citizen on a public street has that expectation.  That's what led to the judge tossing the charges against Graber, and other courts have been similarly unreceptive:  the Illinois Supreme Court threw out that state's law on First Amendment grounds, and the First, Seventh, Ninth, and Eleventh U.S. Circuit courts have come to the same conclusion.

Cops have gotten smarter about avoiding the cameras, but not smart enough.  Here's the video of a recent raid by the Santa Ana Police Department on a medical marijuana dispensary in May:

The first thing the cops did after they had everyone leave the store was to pull out the video cameras and the DVD drive, blithely unaware of the backup video system that the storeowner had installed, which captured them pulling out the video cameras and the DVD drive.  They also caught the police dissing an amputee, playing darts, eating food, and otherwise acting as if they were in a clubhouse rather than engaged in a raid.

The local police chief indicated after the release of the video that the department is conducting an "internal investigation." 

Not that cameras will necessarily dissuade the police from engaging in misconduct.  Pogan, the officer who shoulder-blocked a bike rider into the curb, lied about what happened -- he claimed in his report, before the video came out, that the bike rider ran into him -- and was convicted of a felony.  The judge simply released him, spurning not only the prosecution's request for prison time, but the defense request for community service as a sentence.

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Does Jones create new law?

Back in November, in State v. Mack, the 8th District threw out a case because of pre-indictment delay.  The State appealed to the Ohio Supreme Court, and that court's still deciding whether to take the case.  My personal feeling was that I hoped the court would take it, because the law on the subject couldn't get any worse for defendants.

I think we're going to find out.

If Mack doesn't get in, a likely candidate is the case that came down a couple of weeks ago, State v. Jones.  In my earlier discussion of the decision, I'd said it was "the most defendant-friendly Ohio decision on pre-indictment delay."  The State certainly thinks so.  It's recently filed a motion seeking to have the case certified to the Supreme Court; according to its rather apocalyptic rendering, Jones is in conflict "with prior cases in eleven other appellate districts and prior cases from this Court." 

So is Jones that much of an outlier?

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What's Up in the 8th

Only a half-dozen criminal decisions from the 8th last week, but we certainly didn't lack for substance.  Cases involving Insanity pleas, cell towers, and expert witness fees are topped off by another pro-defendant decision on pre-indictment delay.  Other than a decision on consecutive sentencing, that's the only win for defendants this week, though.

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Case Update

The Republican primary debates got off to a raucous start in Cleveland last week, garnering an audience of 24 million, the largest for a non-sporting cable television show in history.  They tuned in for the same reason NASCAR viewers watch car races:  to see a spectacular crash.  And they were amply rewarded; while Trump's latest bout of boorishness generated most of the post-debate chatter, several other candidates complained about the "gotcha" questions, to the point where some Republicans were claiming that Fox News wasn't "fair and balanced" after all.  It isn't, but the accusation is akin to charging Goebbels with being anti-fascist.

Our governor Kasich did well.  His explanation of his position on gay marriage, and his telling of recently attending a wedding of a gay friend, elicited heart-felt applause.  That just shows you how hard and far the pendulum has swung on the issue of gay rights.  In the first Republican debate in 2012, the audience booed a gay soldier

If there was a gotcha question to be asked, it would be:  "Senator/Governor/Whatever, what's your position on sentencing reform?"  It's likely that every one of them supports it.  It's a complicated issue, though, and I'm not sure any of the candidates would like the idea of having thirty seconds to explain to a conservative group why they think people shouldn't go to prison for so long, and that a fair number of them in there should get out.  It's something I haven't heard any of the candidates talk about, with the exception of Rand Paul, who's been a driving force in the Senate for reform.  But frankly, I've got as much chance of waking up on January 20, 2017 to get ready for my inauguration as the 45th President of the United States as he does.

That's probably the second most important issue of criminal law in the election.  The first is that by the time the 45th president is inaugurated on January 17th, 2017, four Supreme Court justices will be age 78 or older.  

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Thursday Roundup

ACCA Update.  "Sentencing reform" is the current buzzword in criminal justice; after some hiccups, it does appear that some semblance of the Smart Sentencing Act, which lowers mandatory minimums for some drug crimes and allow judges more discretion in sentencing below the minimum, will get through Congress.  And the Supreme Court got into the action on that front back in June with its decision in Johnson v. US The Federal Armed Career Criminal Act adds fifteen years to a sentence if the defendant has three prior "violent" felonies.  What's a violent felony?  Certain ones are defined, and then there's a catch-all - the "residual clause" - which defines a violent felony as one that "involves conduct that presents a serious potential risk of injury." 

Johnson struck down the residual clause as being unconstitutionally vague.  That means if any of the convictions needed for the ACCA sentence were based on that clause, the sentence gets thrown out. 

Of course, that assumes the case is still pending or is on direct review.  That's the way these things work.  New decisions don't apply retroactively.  I worked with an attorney this weekend on an appeal in an ACCA case where the defendant was sentenced in March, and one of the convictions - discharging a firearm into a habitation - fell under the residual clause.  So that's good news for the client.  If he'd been convicted in March of 2014, and had his appeal, he'd have been out of luck.

Or maybe not.  The 7th Circuit just handed down a decision, Price v. US, permitting a defendant who'd been convicted in 2006 to file a 2255 petition (that's a habeas petition for Federal prisoners) arguing that Johnson voided his ACCA sentence.  (H/t to Sentencing Law & Policy.)  The law on when a decision is retroactive is complicated, but it basically boils down to whether the decision "announces a new substantive rule of constitutional law."  Interestingly, it was the government's position that Johnson did.  So if Price stands, expect the floodgates to open.

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What's Up in the 8th

Here's a tip:  if you're lead counsel on a rape case, and your office mate and co-counsel starts talking about coming up with $50,000 for the victim as a "compensation package," run.

Marc Doumbas wishes he'd done that.

Back in November of 2013, he and the other attorney, Tim Marshall, were convicted of bribery for trying to pay off two rape victims to "say something nice at sentencing" for the client.  (The client had pled to sexual battery, so there was a possibility of probation.)  The "say something nice" came from Marshall, to another attorney he was trying to recruit to represent one of the victims.  The case against Marc was paper-thin; even the State agreed that he was nothing more than an accomplice.  I got a lot of love from the panel at oral argument.  (The 8th District judges recused themselves and kicked it down to the 10th.)  Marshall's conviction was affirmed a month ago, but I wasn't terribly concerned about that; he was pressing a legal argument that I didn't make.

But climbing that insufficiency of the evidence mountain is a long, hard climb, and we didn't make it to the top.  

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What's Up in the 8th

A slow week in the 8th; only six decisions in criminal cases.  That includes State v. Rodgers, in which the defendant files an untimely application to reopen his appeal, a task rendered even more forlorn than customary by the fact that there was no appeal to reopen:  the court had earlier denied his motion to file an untimely appeal.  And it includes State v. Taslitz, an affirmance of two convictions for misdemeanor assault against a manifest weight challenge, the most noteworthy aspect of the opinion being a warning to stay away from Black Velvet whiskey in the Jumbo Family Size:  the two victims allegedly consumed a half-gallon of the stuff each day.  

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Case Update

Sure, your interests are directed at the fact that NFL teams have opened training camps, which means it's just over a month until I get the payoff for the $230 I spent on DirectTV's football season package.  (And I suppose the NFL could be an appropriate subject in a legal blog.  I'm not clear on the evidence in l'affaire Brady, but I'm guessing I wouldn't do so well in my appeals if they were heard by County Prosecutor Tim McGinty instead of the judges in the 8th District.)  But if you're like me, you're focused like a laser beam on the oral arguments when the Supreme Court starts its 2015 term the first week of October.  The Court just released its schedule, and five criminal cases are on the docket the first two weeks.  Three of them concern the constitutionality of the death penalty procedure - two cases from Kansas and one from Florida - and another considers the retroactivity of the Court decision in Miller v. Alabama, which limited the power to sentence minors convicted of murder to life without parole.  The last deals with the proof needed to convict a public official of corruption under the Hobbs Act.

SCOTUSblog has come out with its annual StatPack, where you can learn all kinds of fascinating things.  Like that 41% of this last term's cases were decided 9-0, while in 26% the vote was 5-4.  (The previous year, fully two-thirds of the decisions were unanimous, and only 14% were split.)  One stat which confirms the suspicion that the Court is moving to the left is how frequently the liberal bloc justices wind up in the majority in divided cases:  Breyer (86%), Sotomayor (82%), Ginsburg (77%), and Kagan (75%).  That compares to Roberts (66%), Alito (52%), Scalia (48%), and Thomas (34%).

Down in Columbus, while there weren't any decisions from the Supreme Court (none that I'd write about, or you'd read), the legislature was busy.  It passed HB 6, which extends the statute of limitations for rape from 20 to 25 years, and provides that if there's a DNA match to the perpetrator after the 25-year period has expired, the State gets an additional five years to prosecute.  If the DNA match is obtained within the period, then the State gets the longer of the 25 years or 5 years from the DNA determination.

Another law that slipped under the radar - and a hat tip to local attorney Mark Gardner for bringing it to my attention -- is new RC 2901.20.  Determining the culpable mental state in a crime has led to problems, and the new law takes aim at that:  it provides that every new criminal offense has to specify the degree of mental culpability required, and that if it doesn't, the statute is void.  That's opposed to the present approach, which is that if the statute doesn't specify a culpable mental state, it defaults to recklessness, or strict liability if the legislature clearly manifested an intent to do that.  (And "clearly" lies in the eyes of the beholder.)  It only applies to new criminal offenses, though.

In the courts of appeals...

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