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October 2015 Archives

Three is more than twelve

Got a call from a bailiff yesterday.  "Judge wants to assign you an appeal." 

I scribble down the name and case number.  "This on a trial or a plea?" 

"Plea.  Judge says if there's an issue, it'll be consecutive sentences."

Oh, good.  Time to dust off an Anders brief I filed a few years back and update it.  This judge is particularly thorough, and if he's sufficiently aware that consecutive sentences would be an issue, it's pretty damned likely that he'd make the necessary findings to impose them.

Then again, whether that's even necessary in the 8th District any more is an open question.

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What's Up in the 8th

Ah, the things I don't understand.

Like how Steven Ivory got convicted of felonious assault.  According to the victim, he got into argument with Ivory about a bicycle, and Ivory threatened him and appeared to reach for his waist.  The Victim took off running, and two to three minutes later, he heard what sounded like gunshots several houses away. 

That's it.  No gun, no witnesses, no forensics, no nothing, other than that.  Hell, I don't understand how Ivory got indicted, let alone convicted.  I know that a prosecutor can get a grand jury to indict a ham sandwich, but shouldn't he at least have to show that the sandwich did something?  In any event, the conviction gets vacated for insufficient evidence - or, to put a finer point on it, no evidence -- in State v. Ivory.

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Case Update

Good work for SCOTUS buffs who are multilingual:  here's the interview Stephen Breyer gave to a French radio station, in French no less, his new book, The Court and the World:  American Law and the New Global Realities.  A bargain at any price, no doubt, and at $14.99 for the Kindle version, one you can't pass up.  Unfortunately, you probably missed last Thursday's discussion by the Puerto Rico Solicitor General (in Spanish) of the upcoming Supreme Court decision in Puerto Rico v. Sanchez Valle, which has at least a tangential relationship to criminal law:  the Court will determine whether Puerto Rico and the federal government are separate sovereigns for purposes of the Double Jeopardy Clause.

That's down the road -- no briefs have even been filed yet - and next week doesn't offer much more of interest.  There's the oral argument in Foster v. Chatman, the Batson challenge case, and Luis v. United States, which concerns seizure of defendant's assets which could have been used to hire a lawyer, but after that things get grim:  a couple of cases on statutory interpretation, and then nothing the rest of the year.

Down in Columbus, it was Lawyer Discipline Week.  If you're thinking of failing to communicate with a client, charging excessive fees, not depositing client funds into your IOLTA account, or keeping the unearned portion of a retainer, don't.  No criminal decisions, although this week features oral arguments in three of them.  Creep of the Week Award goes to Terry Martin, who hid a camera in a pile of towels in a bathroom and used it to record an 11-year-old girl taking a shower.  Relying on an earlier Supreme Court case, his lawyers argue that the statute prohibiting taking nude photos of children isn't a crime unless photo involves "lewd exhibition or graphic focus on genitals."  (In case you're worried, the statute only applies to non-parents who don't have the parents' permission.)  The argument would benefit from better facts, like, say, a babysitter taking pictures of a child in a bathtub. 

State v. Pittman presents a simple issue of statutory construction.  Ohio law makes it a criminal offense to fail to support a child that "the person is legally obligated to support."  Pittman's two daughters turned 18 in 2006, at which time he owed more than $68,000 in support.  He was ordered to pay $236 a month on the arrearage, and when he didn't, he was indicted for non-support.  He argues that he can't be prosecuted because he doesn't have a current obligation to support his now-emancipated daughters.

State v. Marcum presents a complicated issue of statutory construction.  Back in 2008, the Supreme Court in State v. Kalish (discussed here) set forth a two-part test for appellate review of felony sentencing; the second part was whether the trial judge abused his discretion.  Then in 2011, as part of the HB 86 reforms, the legislature rewrote the statute on sentencing review, and specifically provided that "the appellate court's standard for review is not whether the sentencing court abused its discretion."  I've got a pretty good idea how that will turn out, especially since Kalish was only a plurality opinion, but we'll talk more about it later this week. 

In the courts of appeals... 

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Friday Roundup

Death penalty news.  Two people were sentenced to death in Texas last week.  That would hardly be news - Texas has executed 530 people since the death penalty was reinstated in 1976, almost five times more than the next highest state (Oklahoma) - except for this:  we're ten months into 2015, and those were the first death sentences handed down in the Lone Star State this year.  In 2000, juries there imposed capital punishment on 48 defendants.  That's as many death sentences as have been handed down in the past six years combined.

Ohio, which has executed 53 people during that time, the highest of any non-Southern or border state, won't be killing anyone any more this year.  In fact, the last time a death sentence was carried out here, it resulted in Dennis McGuire's horribly botched execution.  Governor Kasich recently postponed all executions until 2017.  Arkansas and Oklahoma have also imposed a moratorium on executions. 

The reason for the decline in death sentences is the alternative punishment of life without parole, and juries getting squeamish about people being exonerated after spending twenty and even thirty years on death row.  The reason for the decline in executions is the drying up of execution drugs.  Pharmaceutical companies won't sell them anymore because of public backlash, and so states have had to look to "other sources."

One of those sources, according to a story in Buzzfeed, is room 818 of a building in Kolkata, India, where Chris Harris operates a business known as HarrisPharma.  Harris is a salesman, and a pretty good one at that; despite having no pharmaceutical background, he's sold thousands of vials of execution drugs to states hard-pressed to find another source.  He sold enough to Nebraska for them to conduct 300 executions, which in itself is fascinating:  Nebraska's executed three people in the 39 years, the legislature voted to abolish the death penalty, and after the governor's veto the issue is being submitted to statewide referendum this year.  Even if the public votes to continue capital punishment, HarrisPharma won't be of any help; the FDA intends to impound Nebraska's shipment, because the drug is illegal in the United States. 

Harris claims to have sold his drug to five other states as well.  None of them have been used, after questions of their legality were raised.

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What is the law on pre-indictment delay in the 8th

The one lesson you can draw from State v. Jackson is that If you're claiming that you've been prejudiced by the 18-year delay in prosecuting you for a rape you allegedly committed in June of 1996, it's probably better if you're not claiming that you've also been prejudiced by the 18-year delay in prosecuting you for a rape you allegedly committed the following month.

The other lesson that you draw from the decision is that en banc decisions in the 8th have about as much precedential value as this blog does.

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What's Up in the 8th

Not much output from the 8th District last week; only four criminal cases.  Still, we learn about the difference between strict compliance, substantial compliance, partial compliance, and non-compliance in plea colloquies, about Batson challenges, and about "mandatory probation." 

We also learn that App.R. 26(A)(2)'s admonition that en banc consideration is intend to "secure or maintain uniformity of decisions within the district" is so much chin music.  In fact, that merits its own post, so we'll discuss that later this week.

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Case Update

I'm still trying to recover from the news that Playboy is no longer going to publish pictures of nude women - which, given that Internet porn is a $7 billion industry, is akin to your local community college announcing it's no longer going to be giving courses in blacksmithing - but I'll try to muddle through as best I can.  SCOTUS provides little help.  We've discussed the oral argument in the Florida death penalty case and the retroactivity of the rule prohibiting mandatory life without parole sentences for juvenile homicide offenders last week, and the Court has no more oral arguments scheduled until November. 

There are several upcoming arguments that should prove interesting.  One dear to the hearts of attorneys, at least those who represent white collar and drug offenders in federal court, is Luis v. United States, which presents the issue of "whether the pretrial restraint of a criminal defendant's legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violates the Fifth and Sixth Amendments."  And yes, "needed to retain counsel" is the operative phrase in the preceding sentence. 

Of greater significance is Foster v. Chatman, a case involving a Batson challenge in a death penalty case.  As I discussed here, the defense obtained the prosecution's trial notes, which might as well have been entitled, "Plan to keep coloreds off the jury."  In the Wonder Why They Took This category is Bruce v. Samuels, which presents the issue, "Whether, when a prisoner files more than one case or appeal in the federal courts in forma pauperis, the Prison Litigation Reform Act, 28 U.S.C. § 1915(b)(2), caps the monthly exaction of filing fees at 20% of the prisoner's monthly income regardless of the number of cases or appeals for which he owes filing fees."  I'll be focused like a laser on that one, rest assured.

No cases from the Ohio Supreme Court, although I've yet to discuss the oral argument in State v. Barry, the case involving the tampering with evidence statute, as I'd promised to do.  So sue me, an admittedly risky gauntlet to throw down to an audience uniquely suited to do so.  I'll discuss it later this week.  Honest.  Trust me.

In the courts of appeals...

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Three Stories

Story No. 1.  A family comes in to see me about an appeal.  The father had been convicted of gross sexual imposition and sentenced to three years in prison.  The lawyer who tried the case said he'd handle the appeal, and had filed the notice, precipe, and docketing statement a week before.  The notice is a one-sentence document; it just says that you're appealing the judgment of whatever date to the court of appeals of whatever county.  The precipe and docketing statement can be filled out online.  On a bad day, it takes me about half an hour.

The family hired me a couple weeks later, and informed the other lawyer of that the same day the transcripts were filed.  There's not a whole lot you can do with an appeal until the transcripts come in.  Lots of times family members who were present at the trial will want to tell me what happened, and I tell them it doesn't matter what they saw or heard.  As far as the court of appeals is concerned, if it isn't in the transcript, it didn't happen. 

Before they formally retained me, but, sadly, after I'd quoted them my fee, they told me they'd paid the other lawyer $25,000 for the appeal, and asked me if they could get it back.  I told them he was entitled to get paid for the work he'd done, but otherwise, yes, he had to refund the remainder of the fee.

The son called me last week and told me he'd met with the lawyer.  The lawyer told them that since they were a nice family, he was going to give them back $5,000, and keep $20,000.

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A day late and a dollar short

A lawyer called me up the other day.  He'd just been hired by a guy who'd filed a pro se motion to reopen his appeal.  That's under AppR 26(B), and allows the case to get reopened if the defendant can show that his appellate lawyer was ineffective for failing to raise certain issues.  That's a tough standard to meet - there's a boatload of cases holding that an appellate attorney doesn't have to present every conceivable issue, and in fact is expected to winnow the arguments, rejecting the weaker ones.

It also has a deadline:  90 days after the court's decision.  And, at least in the 8th, the court will routinely deny untimely motions, even those filed on the 91st day.  Yes, the rule allows a late filing if you can show good cause, but you'd be amazed at how difficult it is to show that.  One panel held that not even a riot in the prison which prevents the defendant's access to the law library makes the cut. 

My friend's client had filed the petition a day late.

From the looks of the argument in the Supreme Court yesterday in Williams v. State, that might not matter anymore.

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Case Update

Florida's unique system of capital punishment was up for argument in the Supreme Court yesterday in Hurst v. Florida, and it didn't go well for Florida.  Under the state's law, a person can't be sentenced to death unless the jury finds an "aggravating factor," such as the killing of a policeman, multiple killings, and he like.  But that's just an advisory opinion; the judge makes the finding of aggravating factors "independently, and notwithstanding the jury's recommendation as to sentence."

That would seem to run contrary to the Supreme Court's 2000 decision in Ring v. Arizona, which was part of the Apprendi/Blakely trilogy, and held that the aggravating factors making a defendant death-eligible have to be found by a jury.  Florida argues that the advisory role of the jury satisfies Ring; after all, if the jury doesn't find the aggravating factor, a death sentence can't be imposed.  That's tough sledding in itself, but Scalia also focused on the moral component:   

But shouldn't it be clear to the jury that their determination of whether an aggravator exists or not is final?  Shouldn't that be clear? ... I'm talking about what responsibility the jury feels.  If the jury knows that...., if we do find an aggravator, it must be accepted.  That's a lot more responsibility than, just, you know, if you find an aggravator and you weigh it and provide for the death penalty, the judge is going to review it anyway.

Yeah, yeah, I know, you can't tell the outcome of a case from oral argument.  Except when you can.

The other criminal case argued yesterday was Montgomery v. Louisiana, which raised the question of whether the Court's decision in Miller v. Alabama, which forbade mandatory life without parole sentences for juvenile offenders, should be applied retroactively.  The Court spent most of the time arguing whether it had jurisdiction to hear the case.  It had actually appointed a lawyer to argue that issue, and he contended that the choice of whether to make a Supreme Court decision on criminal law retroactive is not a constitutional issue, so a state is free to follow it if it wishes, but is not required to do so, and the Supreme Court doesn't have jurisdiction over state law issues.  Got that?  Heady stuff, and I'll explain it in more detail when the Court issues its opinion explaining why it's not going to decide the issue it granted cert to decide.

Down in Columbus, eight cases are on tap this week for oral argument.  The weirdest is State v. Barry.  Barry was driving with three men toward Huntington, West Virginia, when they were stopped by the police and arrested because the officers smelled marijuana.  At the stationhouse, Barry admitted that she was carrying 56 grams of heroin in an intimate portion of her body.  Eeewww.  For this, she was prosecuted and sentenced to three years in prison for drugs, and an additional three years for tampering with evidence.

Problem:  Under the statute, one can be convicted of tampering only if she has knowledge that "on official proceeding or investigation is in progress or likely to be instituted."  When Barry hid the drugs, there was no such investigation under way or likely to be instituted.  The Fourth District affirmed Barry's conviction anyway, finding that the when one hides evidence of an "unmistakable crime," she commits tampering.  I'll do a post later this week on the oral argument.

In the courts of appeals...

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What's Up in the 8th

Every now and then we have a Week at the 8th District.  Sometimes it's Consecutive Sentencing Week; others, it's Allied Offenses Week.  (We even once had Bar Shooting Week.)  So now we have Probation Violation Week, with four of the court's seven decisions devoted to that subject.

So let's see what we learn.

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Friday Roundup

News from the Marijuana Front.  I've always thought of Ohio as a relatively conservative state.  Little things, like, oh, every state-wide official, from the governor on down, six of the seven Supreme Court justices, and two-thirds of each legislative chamber being Republican.  But we're going to have a referendum in November on legalizing marijuana, and according to the latest poll, Ohioans support doing so by a nine-point margin.

Whether that happens is another story; you can bet that the "demon weed" stories are going to be amped up in the next few weeks.  Earlier this week, doctors from the three big hospitals in Cleveland came out in opposition to the proposal, "backed by law enforcement, business, and elected officials."  The elected officials of the City of Toledo may or may not have been included in that mix, but it didn't matter much, at least in that burg; a citizen-led initiative there resulted in the passage last month, by a 20% margin, of the "Sensible Marihuana Ordinance," which eliminates fines and jail time for possession of up to 200 grams of weed.  One of the law enforcement and elected officials who is in the mix is Attorney General Mike DeWine, who promptly sued the city over its ability to enact the ordinance.

The doctors also opposed the use of medical marijuana, but that ship has definitely sailed.  The same poll showed that support for legalizing marijuana for legal purposes has skyrocketed: about nine in ten Ohioans support it.  That mirrors the polling results in Florida and Ohio; in both places, while support for legalizing recreational use is mixed, support for medical use is overwhelming.


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Alternate means

You client is convicted of burglary:  trespassing in an occupied structure by "force, stealth, or deception" with the intent of committing a felony.  But what if six jurors decided the trespass was by force, three by stealth, and three by deception?  That's not a unanimous jury verdict.

Good luck with that argument.  Back in 2008, in State v. Gardner, the Ohio Supreme Court confronted that very scenario, and held that in an "alternate means" case - where the statute contains alternate means of committing the crime - jury unanimity is not required as to each specific method.

There's one catch with that:

Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means.

That leads to a rare reversal of a death sentence in last week's Supreme Court decision in State v. Adams.  

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What's Up in the 8th

This probably should be a question on the analogy section of the LSATs:

9th Circuit:SCOTUS::_______:Ohio Supreme Court

Anybody vaguely acquainted with appellate decisions over the past few years, especially in criminal cases, would easily recognize the answer as being, "8th District"; for a number of years now, the high court has been treating the 8th as a red-headed stepchild.  So if you're going to cite an 8th District case, as the lawyer did in State v. Santiago, you might want to check to make sure the Olentangy Seven haven't overruled it.

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Case Update

SCOTUS kicks off oral arguments today, and the first criminal case on the docket (for tomorrow) is Ocasio v United States.  Ocasio, a Baltimore police officer, was involved in a bribery scheme where he would steer people involved in traffic accidents to a garage owned by the Mejia brothers, for which the brothers would appropriately compensate him.  Ocasio was convicted of three counts of violating the Hobbs Act, the federal extortion statute, and also of conspiracy.  He attacks the latter count, arguing that a conspiracy conviction requires taking money from someone outside the conspiracy, and the Mejia brothers were part of it.  SCOTUSblog has a lengthy article explaining the whole thing.  The author calls the case a "brainteaser," and it's certainly that; I found both my intellect and my attention exhausted by the sixth paragraph.  Have at it, if you will.

More interesting cases - at least to me, and that's what it's all about - await, including two on Wednesday concerning Kansas' death penalty law.  Odd that it would come from Kansas, which hasn't executed anybody in the modern (post-1976) history of capital punishment.  More on that later.

Down in Columbus, a big decision in a death penalty case in State v. Adams.  The major concern of the case is the "alternate means" doctrine.  If you don't know what that means, you'll find out on Wednesday.  Adams also deals with a variety of other issues, like pre-indictment delay, so we'll cover that, too.

In the courts of appeals...

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Legislative intent

Desmond Warren was a pimp, and he did what pimps do.  He'd have his women post ads on Backpage.com advertising their services.  (In fact, one of them taught him how to do it.)  He'd dictate how much money he was to receive for each assignation, and would collect it.  And he'd manipulate the women; one of them described the "pimp control" he'd use:

It's like making a woman feel like she's number one and that you need her and that you love her, and also putting fear in her by if she's not doing what you want her to do, by either hitting her or taking that attention and love away and giving it to someone else.

It was more than an occasional slap; when one tried to leave his home, where they all lived, he punched, kicked, and choked her, then tied her up in the basement.

The Man eventually caught up to Desmond - one of his girls got busted, and promptly rolled over on him - and five years ago he would have been looking at the third degree felony of compelling prostitution.  Instead, he's doing fourteen years for human trafficking.

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Recent Entries

  • January 17, 2018
    What's Up in the 8th
    When not to decide cases on allied offenses and pre-indictment delay
  • January 11, 2018
    Case Update
    Three new decisions from the Ohio Supreme Court
  • January 10, 2018
    To the barricades!
    Why I'm a threat to the Ohio state government
  • January 5, 2018
    Search and seizure in the digital age
    Do the cops need a warrant to get cell phone data?
  • January 3, 2018
    What's Up in the 8th
    We talk about me a lot, but there's some other stuff, too
  • January 2, 2018
    He's baaaack
    So I thought I'd start my first post in six weeks by explaining why it's my first post in six weeks. Ever run into somebody and ask the obligatory question, "How are you doing?" And they proceed to tell you...
  • November 15, 2017
    What's Up in the 8th
    Plea withdrawals (again), sexual predator hearings, and an appellate law question
  • November 7, 2017
    What's Up in the 8th
    Don't listen to prosecutors about the law, good new/bad news jokes on appeal, and the Byzantine course of a death penalty case
  • October 24, 2017
    What's Up in the 8th
    Trying to change the past
  • October 16, 2017
    En banc on sentencing
    The 8th District takes a look at what State v. Marcum means