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...
I've often wondered why judges up here, with only an exception or two, don't use written plea documents. One reason is offered by the 2d District's decision in State v. Lockard. Lockard pled to discharging a firearm near prohibited premises and improper handling of a firearm in a motor vehicle, with the first including a three-year firearm specification. The judge told him of the maximum sentences on each count, and the fact that the firearm specification had to run consecutively to that, and properly advised him of the mandatory three years of post-release control. Problem: the plea document he signed made no mention of the firearm specification, capping the maximum at 54 months (36 on the first count and 18 on the second), and advised him that post-release control was discretionary. The panel concluded that the numerous errors in the plea agreement required vacating the plea.
A rare reversal of a motion to vacate a plea, and a post-sentence motion at that, comes in the 9th District's decision in State v. Robinson. Robinson had pled to aggravated murder in 2005, after he confessed the crime to the police. Nine years later, he filed a motion to vacate the plea, attaching an affidavit from Demian Duncan, a fellow prison inmate, who admitted he committed the crime, as well as a letter from Duncan to Robinson's father to the same effect. In his reply brief in support of his motion, Robinson explained that he confessed to the crime because police told him that his girlfriend, who was being interrogated in an adjoining room, was having an asthma attack, and they wouldn't help her unless he confessed. The trial court denied the motion, completely discounting Duncan's affidavit. The panel reverses, finding that the court's failure to mention the letter or Robinson's affidavit meant the trial judge failed to consider them, and remanding the case so that the judge can do so. Not time for Robinson to don a party hat, though. The panel specifically indicated it was not expressing an opinion on whether the motion should be granted, or even whether a hearing was required; all that was necessary was for the judge to consider the additional documents. Guess what happens next?
The 2nd District has a mixed record in 4th Amendment cases, and it becomes decidedly more mixed in State v. Lam. Police had gotten into an unsuccessful car chase with Lam a few weeks before, and knew he was involved with drugs. When they saw him, they decided to go his house and wait for him, rather than engage in another chase. They observed a turn signal violation, and activated their lights when he pulled into the driveway. He ran into the house and slammed the door. The police used a battering ram to get in, and then conducted a "protective sweep," locating 32 plastic bags of marijuana under an air mattress.
So the police break down the door to somebody's house for a turn signal violation? They decide to look under an air mattress to see if somebody's hiding under it? It's all good, it turns out.
Actually, the fault is the Ohio Supreme Court's. Back 2002, the court upheld the entry of a home to arrest someone for reckless operation, after the defendant parked his car in his driveway and ran into his house, basing the result on the US Supreme Court's decision in US v. Santana. Santana had involved a felony - selling heroin - but no matter; the Columbus found "no reason to differentiate appellant's offense and give him a free pass merely because he was not charged with a more serious crime."
Really? The 4th Amendment requires balancing the individual privacy interest against the government's interest in prosecuting criminals, and you can't see the difference between the police breaking into somebody's house to arrest them for heroin trafficking and breaking into somebody's house to arrest them for a turn signal violation?