January 2016 Archives
So today I heard a very well-substantiated rumor that, henceforth, the Cuyahoga County Prosecutors office will no longer reduce offenses involving guns. No dropping gun specs, no dropping a CCW or weapons under disability a degree by dragging in the attempt statute.
You can debate the wisdom of this policy. It might clog up the courts and force cases to trial which would otherwise have been resolved by plea. Or it might sends a clear message to the community that gun crimes will not be tolerated, and that will have a deterrent effect on gun crimes.
But here's a different question: is it a good idea to allow a county prosecutor the power to do that sort of thing?
If you're a teacher and you have sex with somebody who turns out to be a student in your school, are you guilty of sexual battery? If you're charged with having a weapon under disability because you're under indictment for a drug offense, does the State have to show that you knew you were under indictment? If you sell a gun to a minor, is it a defense that you didn't know the buyer was a minor?
Yes, yes, and yes; all of those are strict liability crimes as to that particular element.
It's arguably worse in the Federal system. We're not even sure how many Federal crimes there are: the Heritage Foundation counted almost 4,500 in 2007, the Congressional Research Service found another 400 added between 2008 and 2013, and that's not even counting the over 300,000 Federal regulations, many of which provide some penalty for noncompliance. Many of them are strict liability offenses, too.
The next family gathering at the Petronzio household should be an interesting one. The family files for a protection order against him, which he violates, and so he eventually pleads to aggravated menacing. The issue on appeal is that while the court referred him for a psychiatric hearing for competency and sanity, there's no indication of any reports or a hearing on the matter. The latter is the real problem: the statute makes a hearing mandatory. Mandatory, schmandatory; the panel in Strongsville v. Petronzio rules that failure to hold the hearing is harmless error "where the record fails to reveal sufficient indicia of incompetence."
One might suggest that the purpose of the hearing is to provide "sufficient indicia" on the question of competence, but Petronzio doesn't break any new ground in that respect: one decision along this line noted that the defendant testified at trial and apparently didn't need a drool bucket when doing so, and accordingly was found sufficiently lucid. Yes, I made up the part about the drool bucket.
Last year, in Glossip v. Gross, the Supreme Court's decision affirming the use by Oklahoma of a particular drug in executions, there was talk about the Court possibly backing away from the death penalty, with Breyer noting that capital punishment was often inflicted arbitrarily, and suggesting that the death penalty might be unconstitutional.
So much for that. Last week, the Supreme Court affirmed the death sentence of brothers Jonathan and Reginald Carr by an 8-1 vote. The issue was the jury instructions, which told the jurors that they had to unanimously find at least one of the aggravating factors beyond a reasonable doubt, and that they were "not outweighed by any mitigating factors found to exist." The Kansas Supreme Court reversed the sentences, deciding that the jury might have thought mitigating factors had to be found beyond a reasonable doubt as well. SCOTUS found no such confusion.
The result was no doubt due, at least partially, to the sheer heinousness of the Carr's crimes. They'd broken into a triplex where three roommates lived, with two of the roommates' girlfriends also present. The Carrs raped the women, forced the five into the trunks of two cars and took them around to withdraw money from the victims' ATM's, took them back to the triplex and raped the women again, then drove the five out to a field and executed them; one survived because the bullet deflected off her hairclip. Scalia's majority opinion devotes five pages to detailing all this, recounting that after the killings the brothers returned to the triplex "where they ransacked the place for valuables and (for good measure) beat Holly's dog, Nikki, to death with a golf club." Sotomayor dissented, arguing that the Kansas decision was based on state procedural grounds, and noting that
The standard adage teaches that hard cases make bad law. I fear that these cases suggest a corollary: Shocking cases make too much law.
The Court also heard oral argument last week in a case concerning a dispute over land on the Omaha Indian reservation in Nebraska, and another involving an Alaska man who wanted to use his hovercraft to hunt moose. Stay tuned.
Yesterday, in State v. Leak, the Ohio Supreme Court handed down a decision tossing out a search. That's not a common occurrence, and it should be a cause for celebration. Certainly for someone like me, who's a big fan of the 4th Amendment, although not as much a fan as one public defender I know who's got it tattooed on his arm. I am not making that up. Haven't gone quite that gangsta, but I'm still a fan.
So why am I not happy?
I had a case several years ago where my client was charged with raping a nine-year-old boy. Sounds a lot nastier than it was: the father of the boy had been a co-defendant of my client in an arson-for-hire scheme, and had made the rape allegation shortly before the two were arrested. My argument was that the father sensed things were going south, and wanted to undercut my client's ability to roll over on him by accusing him of child molestation. The prosecutor mostly agreed with that analysis, and so my client wound up pleading to abduction, a third-degree felony. The judge gave him nine months, concurrent to the time he was doing on the arson case.
The case against Bennie Veasey apparently wasn't that great, either. He was indicted for rape and kidnapping, but five months later he was allowed to plead guilty to 4th degree felonies of attempted abduction and aggravated assault. He got probation.
A big difference between my client and Veasey, however. A few weeks after sentencing, Veasey was charged with raping a woman in Cleveland, and then arrested in Maryland on a human trafficking charge. The rape case here was dropped when Veasey was sent to prison in Maryland.
If Judge Michael Donnelly in the common pleas court here in Cuyahoga County got his way, Veasey's plea (and my client's) would no longer be permitted. Last week, the Ohio Supreme Court decided Donnelly wouldn't get his way.
Alabama law allows judges to override a jury's recommendation of sentence in a death penalty case, and the state's judges have taken to that with relish, overturning jury sentences 111 times since capital punishment was reinstituted back in 1976.
That might come to an end with the Supreme Court's decision last week in Hurst v. Florida. The Florida statute makes the jury's vote on the death penalty an advisory recommendation, with the judge empowered to make the final decision. By an 8-1 vote, the Court found the procedure violated its 2000 decision in Ring v. Arizona, which held that the aggravating factors making a defendant death-eligible have to be found by a jury. That might not have much effect in Florida; no judge has overridden a jury's verdict so as to impose a death sentence since 1999. It could have a much more dramatic effect in Alabama: there, 91% of the time when there's an override, it's of a jury verdict imposing a life sentence.
Hurst isn't off the hook completely. Alito dissented, arguing that the Florida procedure was permissible, and that in any event any error was harmless in light of the gruesome nature of the crime. (Hurst held up a Popeye's restaurant before it opened, and stabbed the assistant manager more than sixty times.) The Court remands the case back to the state courts for that determination, although how they'll come to a determination that any jury would nonetheless have voted to sentence Hurst to death is a mystery, since five of the twelve jurors voted for a life sentence.
Down in Columbus, a couple of disciplinary cases; from one, we learn that just because you practice before a federal agency doesn't mean that you're immune from Ohio's disciplinary system. Besides the oral arguments in the two death penalty cases coming up next week, which I discussed last Monday, we've got to wait until the second week of February before we come to some criminal cases on the court's calendar. We've got five of them then, including two from Cuyahoga County, so we'll see how that goes. Other than that, the court is accepting public comment on various rules changes, none of any real consequence. The court rejected the one rules change that would have been of significant consequence, and we'll talk about that tomorrow.
In the courts of appeals...
Judge not. Ron Castille is a no-nonsense sort of guy. As District Attorney of Philadelphia, he had to decide whether to seek the death penalty against Terrance Williams, an 18-year-old who had beaten a 56-year-old man to death. He didn't have much of a problem doing that; during his tenure as District Attorney, his office obtained the death penalty in 45 cases, accounting for a quarter of the people on the state's death row.
That became the focus of Castille's campaign for a seat on the Pennsylvania Supreme Court in 1993. As one newspaper account related,
Castille and his prosecutors sent 45 people to death row during their tenure. . . . Castille wears the statistic as a badge. And he is running for the high court as if it were exclusively the state's chief criminal court rather than a forum for a broad range of legal issues. . . . Castille talks about bringing a prosecutor's perspective to the bench.
And, as Castille himself put it: "You ask people to vote for you, they want to know where you stand on the death penalty. I can certainly say I sent 45 people to death row as District Attorney of Philadelphia. They sort of get the hint." They certainly did; Castille won handily.
Remember Terrance Williams? He was convicted and sentenced to death. In 2012, he filed a post-conviction relief petition in state court. The judge vacated his death sentence, finding that the prosecutor hid evidence that the victim had sexually abused Williams, and that that was the motivation for the killing. Williams' co-defendant, who had been the key witness at trial, also told the court that the prosecutor had threatened to indict him for capital murder in an unrelated case if he didn't agree to testify against Williams, a fact that was never disclosed to the jury.
The state appealed the decision to the Pennsylvania Supreme Court. With Chief Justice Ron Castille presiding. The court reversed the lower court's decision, and Williams was put back on death row.
On February 29, SCOTUS will hear argument on whether Castille's refusal to recuse himself was proper. You can get wrapped up in things like whether Williams can demonstrate prejudice (the decision to reverse was unanimous), or whether the trial court's finding was correct, but this one doesn't pass the smell test. Even Castille's peers have problems with this: amicus briefs in support of Williams have been filed by a group of "former judges with prosecutorial experience," and a group of appellate court judges.
Probably one of the most difficult cases to defend is one involving child abuse allegations which occur over a period of time. For one glorious moment - well, a few years, actually - the 6th Circuit's 2005 decision in Valentine v. Konteh provided a path to reversal, at least in cases involving a "copy-cat" indictment: multiple counts, identically worded and covering the same time frame, alleging that the defendant had engaged in sexual contact with the victim. Valentine held that the failure to identify specific incidents raised a double jeopardy problem: if the state were to bring additional charges for the same period, there'd be no way to tell if they were the incidents the jury had already convicted Valentine for.
The 8th District followed Valentine in a few cases, then began drawing distinctions: it didn't apply where the evidence at trial provided specific evidence pertaining to specific counts, or where the bill of particulars identified the relevant facts for each count. Then two years ago, the 8th held that Valentine had no precedential value, and was bad law besides. The 12th District had come to the same conclusion a year earlier.
But the 10th District's decision in State v. V.W. points to another problem with indictments in child sex cases stretching over a period of time. V.W. was indicted for three counts of rape and three of sexual battery involving his teenage daughter. Instead of indicting on separate counts of gross sexual imposition, though, the prosecutor alleged in a single count that V.W. had engaged in various acts of that nature over a two-year period of time.
The jury didn't think much of the rape and sexual battery counts, acquitting V.W. of those. It did convict him of the gross sexual imposition count, but the 10th District didn't think much of that, reversing the conviction and sending it back for retrial.
We lawyers are a nasty lot, it seems, at least from the filings in the 8th District. In State v. Norton, the defendant files an application to reopen the appeal, claiming that "appellate counsel omitted a dead-bang winner." Gosh, I hate when I do that. I mean, forgetting to make an assignment of error that's a winner is bad enough, but a dead-bang winner? Those don't come around too often. Unfortunately, Norton chooses not to share with the panel precisely what the dead-bang winner was, so his application becomes a dead-bang loser.
The defendant in State v. Ladson goes a different route, filing a motion to withdraw the plea, contending that his lawyer "tricked" him into pleading guilty to felonious assault five years earlier. No chicanery was involved in State v. Congress; the attorney's failure there was that he didn't advise Congress "of all the ramifications of his plea" to murder. They have as much luck as did Norton.
Nothing happening at SCOTUS, so we'll talk about what might happen. The answer is not much, except for Federal practitioners. What happens when the judge screws up the guideline calculations, and nobody catches it? That's what happened to Saul Molina-Martinez. The judge sentenced him at the bottom of the 77-96 month guideline, but it should have been a 70-87 month range. Tomorrow the Court will hold argument on how plain error applies in sentencing, especially in regard to prejudice; the government argues that since the 77 months Molina-Martinez got were within the 70-87 month range he should've gotten, he can't show he was prejudiced. Since Molina-Martinez could serve as a poster boy for the Trump campaign - a Mexican national, he was convicted of illegally entering the country, after being thrown out after committing burglaries in 2002 and 2011 - it's unlikely the Court's going to muster much sympathy for his position. There's a saying that hard cases make bad law, but bad cases make bad law, too; Molina-Martinez has a decent issue, but he's hardly the best vehicle for pursuing it.
Last week, the Court accepted a more significant case, Welch v. U.S. The Armed Career Criminal Act adds 15 years to the sentence of anyone convicted of unlawful possession of a firearm who's had three prior state or federal convictions for violent felonies or serious drug offenses. The statute contained a residual clause defining a violent crime as one which "involves conduct that presents a serious potential risk of physical injury to another." The Court found that unconstitutionally vague last year in U.S. v. Johnson. Welch raises the issue of whether Johnson should be applied retroactively, with the government surprisingly taking the position that it should be. A warning, though; even if it is ultimately held retroactive, the time for filing a Federal habeas is one year from the date Johnson was decided, June 26, 2015.
Demetrius Jones is indicted for a rape he supposedly committed twenty years earlier. The alleged victim claims that the rape took place in Jones' mother's apartment, in her bedroom, with his mother sitting outside in the living room. She identifies Jones and the place where the incident occurred. The police close the case, and eighteen years later, they finally send out the rape kit and get a CODIS hit telling them what they knew all along: that Jones and the woman had sex. By the time Jones is indicted, though, his mother has died. The judge decides that prejudices him, and dismisses the case for undue pre-indictment delay. The 8th District affirms.
Demetrius Jones is indicted for a rape he supposedly committed twenty years earlier. The alleged victim claims that the rape took place in Jones' mother's apartment, in her bedroom, with his mother sitting outside in the living room. She identifies Jones and the place where the incident occurred. The police close the case, and eighteen years later, they finally send out the rape kit and get a CODIS hit telling them what they knew all along: that Jones and the woman had sex. By the time Jones is indicted, though, his mother has died. By the time Jones is indicted, though, his mother has died. The judge decides that prejudices him, and dismisses the case for undue pre-indictment delay. The 8th District affirms.
No, I'm not repeating myself. If you click the links, you'll see that they're totally different cases. The first is an en banc decision this past summer. The other is a decision the 8th released just last week. And yes, it's the same Demetrius Jones.
You're out of your seat the minute the witness mentions that your client was in prison, or the cop testifies that he believes the victims were telling the truth. Your objection is met with the judge sustaining it, then turning to the jury and intoning, "You are instructed to disregard that testimony." After your client is convicted, you follow up with the appellate lawyer a year later and, sure enough, he tells you that the appeals court rejected the claimed error regarding the inadmissible testimony. Oh, sure, the panel huffed and puffed about how it was indeed error, but then comes the line all of us know so well. No prejudice, because "the jury is presumed to follow the judge's instructions."
We all know better than that, even the judges who write those words. Here's Supreme Court Justice Jackson's assessment of their value: "The naïve assumption that prejudicial effects can be overcome by instructions to the jury . . . all practicing lawyers know to be unmitigated fiction."
Telling a jury to disregard evidence is like telling them to not think of a pink elephant. The human mind isn't built that way. In fact, those same appellate courts will reject an argument that counsel was ineffective for not requesting a curative instruction. Why? Because not requesting a curative instruction might be a tactical gambit, in the belief that such an instruction will only remind the jury of what they're supposed to forget. We all know that such instructions are a waste of time.
David Blalog got lucky. Not with the trial judge. He'd robbed two people at ATM's on separate dates, and the judge happened to have presided over a case a couple of decades ago where someone was murdered at an ATM. The judge spent some time talking about that, and about how people rely on ATM's for banking transactions. The judge then imposed six years on one count and eight on the other, and said, "Given your age, I will make those consecutive."
I handled the appeal, and thought I had a sure winner; age isn't listed as one of the three factors under RC 2929.14(C)(4) for imposing consecutive sentences. Sure enough, on Christmas Eve Santa delivered a reversal and remand to Balog. A bit closer than I would have liked, though. The judge had pointed out Balog's criminal record, so that satisfied one of the factors, and the panel found that the judge's statements about ATM use "could arguably be interpreted as a finding that consecutive sentences are necessary to protect the public from future crime." But there was nary a word about the third factor, whether consecutive sentences are disproportionate, and nothing that could reasonably be construed as such, so back it went.
Josue Vasquez wasn't nearly as lucky.
Dropbox is acting up. Today's post will appear tomorrow, tomorrow's post will appear Thursday, and... you get the idea.
Apparently, the Potomac Nine decided that if I wasn't going to write about their decisions, they weren't going to hand down any decisions worth writing about. In the past six weeks, the most notable event for SCOTUS was Chief Justice Roberts' annual report on the judiciary, in which he admonished lawyers to play nice, and encouraged judges to more closely monitor cases to effect the "just, speedy, and efficient resolution of civil cases." That's mainly a follow-up to the amendments to the civil rules, effective last month, intended to streamline civil discovery procedures. Roberts writes that "I cannot believe that many members of the bar went to law school because of a burning desire to spend their professional life wearing down opponents with creatively burdensome discovery requests or evading legitimate requests through dilatory tactics." Based upon my experience in civil cases, I can.
The Columbus Seven were more diligent, but barely. The only criminal case in that time frame was the unanimous decision in State v. Barry. The cops stopped a car in which Barry was a passenger, and that led to Barry's arrest and her disclosure at the stationhouse that she was carrying a bag with 56 grams of heroin in an intimate portion of her body. No, not that portion - eeewwww. In any event, that led to her conviction of tampering with evidence.
But the tampering statute requires that the defendant know that "on official proceeding or investigation is in progress or likely to be instituted." Barry had inserted the bag before she even departed on the trip, but the 4th District affirmed her conviction nonetheless on the theory that when one hides evidence of an "unmistakable crime," she commits tampering, because they have "constructive knowledge of an impending investigation." But constructive knowledge means only "knowledge that one using reasonable care or diligence" should have, which is largely a negligence standard; "knowingly" under the statute requires that a person ""subjectively believes that there is a high probability" that a certain fact exists. In short, mere "constructive knowledge" doesn't cut it.
That sounds broader than it might be. While Barry was pending, the 4th District narrowed Barry so that it applied only in situations where the defendant committed a crime, like murder, arson, or rape, where the victim was likely to complain to the police, or investigation is almost certain to occur because of the death or severe injury to the victim. We'll see how that shakes out in the future.
In the courts of appeals...
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