September 2015 Archives
I always like it when people ask me if I've got any big plans for the weekend. At my age, staying awake for the entirety of Sunday Night Football is my personal Mt. Everest. Not so for Wesley Reese; at the ripe old age of 76, not only does he have a 48-year-old girlfriend, Janet Schultz, but he has the energy to go out to dinner with her, join her in finishing off a pitcher of margaritas, and then hit the bars to consume several more beers.
As you might gather, this being a criminal law blog, the evening doesn't end well, with Schultz attacking Reese with a stool; the next thing Reese remembers, he's lying on the floor looking down at his foot, where "toes were pointing back to where his heel used to be."
The first oral arguments in the Supreme Court's 2015 term begin a week from today. The Court's term actually begins this Friday, with the "long conference," where the justices will sift through the certiorari petitions which have piled up over the summer and decide who's been naughty and who's been nice. Whoops, that's another couple of months down the road. At any rate, there are some good death penalty cases on tap next week, and we'll talk about them then.
Speaking or oral arguments, every now and then the Ohio Supreme Court holds its arguments "off-site." The venue of choice two weeks ago was the auditorium of the Fremont Ross High School. The court's elegant home in Columbus features a large bench, with ample space for the justices. Fremont Ross High School, not so much, with the judges crowded on the stage elbow to elbow; one half-expected to have seen them pile out of a clown car. The Chief Justice noted that the purpose of off-site hearings was to inform the citizenry of the judicial process, and that having the argument before a body of high schoolers was therefore appropriate. It's too bad the camera couldn't pan over the enthralled faces of the teen-agers as they listened to the prosecutor wax rhapsodic over the provisions of RC 2929.01(A)(9).
The case was State v. V.M.D., and even the high schoolers could probably predict the outcome, based on the course of the argument. V.M.D. had been charged with aggravated robbery, and wound up pleading to attempted robbery using force. Fifteen years later, he sought to expunge the conviction. Problem: robbery is a crime of violence, and can't be expunged. V.M.D.'s solution: robbery already includes an attempt, so V.M.D. was actually pleading to a crime which didn't exist: attempt to attempt to commit robbery. The 8th District bought it, but I didn't count two votes, let alone four, for that position among the justices.
We've got three weeks of appellate decisions to go through, so let's get to that...
Every defense lawyer has his "deadly weapon" story: the indictment for felonious assault, alleging that defendant "caused or attempted to cause serious physical harm by use of a deadly weapon, to-wit:" followed by some object which no one would ordinarily think of as a deadly weapon. My second favorite case involved an indictment which alleged, "deadly weapon, to-wit: a pencil." In first place was the case where that ended with "to-wit: a toy gun." The "weapon" in question was indeed a plastic toy gun. (They'd even charged my client with a firearm spec; as the prosecutor said, "I guess they missed that one in the grand jury.")
He argued nonetheless that it was a deadly weapon because it could have been used as a bludgeon, and in a sense he was right. My client had pulled it out during a small party in an attempt to rob the other people there. They took it away from him and beat him over the head with it. The police found shards of plastic strewn around the apartment.
This is how bad it's gotten with the cold case rapes in Cuyahoga County: in nearly 90 cases, the prosecutor's office here has indicted someone's DNA profile, under a John Doe designation. The first test of that procedure came in last week's decision by the 8th in State v. Gulley, and it didn't go well for the State.
When is a defendant competent to enter a guilty plea? When can you introduce evidence that the alleged victim of a rape case is a prostitute? Is the 8th District adopting a harder tone on consecutive sentencing cases? How in the world do you win a case on appeal from the denial of a motion to withdraw a plea? And when will I stop posing questions and get down to telling you about the decisions the 8th handed down last week?
Oral argument in SCOTUS begins four weeks from today, although the term actually starts the preceding Friday, when the justices meet to mull over the certiorari petitions submitted over the summer. It's called the "long conference," which to me sounds like something used to broker a peace treaty in 17th century Europe. The oral arguments the first week include two cases from Kansas on the death penalty, and the next week features on argument on the constitutionality of Florida's capital punishment scheme.
SCOTUS was also the driver of an Ohio Supreme Court case, State v. Clark. As the numberless horde of my regular readers know, I've been closely following this case since it came out of the 8th District. The panel there reversed Clark's conviction for child abuse, holding that two teachers' testimony of what the victim - a three-year-old who was found incompetent to testify - told them was inadmissible. According to the court, since the teachers had a mandatory statutory duty to report abuse, they were government agents for Crawford purposes, and the child's statements were testimonial. Much to my surprise, the Supreme Court affirmed that in a 4-3 decision, only to have the Potomac Nine unanimously reverse.
The case is remanded, and there's a little housekeeping that needs to be done. In a tidy three paragraphs, the court ships it back for the 8th to consider Clark's other assignments of error, which that court had deemed moot. Regardless of what happens, Clark's going to get a new trial: the 8th also held that testimony about the statements made to the boy's grandmother and great aunt, which came in under EvidR 807, shouldn't have been allowed, and the State never appealed that.
In the courts of appeals...
I think the Ohio Supreme Court thinks that Cuyahoga County is a foreign land.
That was the common theme in the oral argument yesterday in State v. Rosario: astonishment that it is a common practice up here to have a defendant sign a cognovits for court costs, the latest of the county clerk's blood-from-stone experiments. Perplexity at the notion that a probation officer should be tasked with the responsibility of presenting evidence and essentially prosecuting a community control violation. Amazement at the fact that all 34 judges here follow the policy of not telling the prosecutor's office when a violation hearing will be held.
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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