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What's Up in the 8th

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.

Sanity, rather than competency, is the issue in State v. Fitzgerald Fitzgerald gets referred for competency and sanity, and the reports come back that he's competent and sane.  His attorney stipulates to them, but he gets new attorney, who asks for independent evaluation.  The independent evaluation is done, but the attorney indicates he's not going to rely on it.  Gee, I wonder what it said?  Nonetheless, ten days before trial, Fitzgerald files motion for leave to file NGRI plea, but the judge denies it because there's no expert to support it. 

Entre moi, stage left, for the appeal.  Do you need an expert before you can enter an NGRI plea?  I relied on a 2d District case that says that you don't, but there are two 8th District cases that say you do.  Undeterred, I pointed out that the first had no precedential value, because two panel members concurred only in judgment, and the second was based on the first.  Clever, no?  So clever that this panel pondered it for all of two weeks before affirming. 

The court cleans up something in State v. AlexanderAlexander was given six-month sentences for two misdemeanors, and the judge ran them consecutively.  He appeals, claiming that the judge failed to make the findings required by RC 2929.14(C)(4) to impose consecutive sentences, relying on the 8th's decision a year ago in Beachwood v. Chatmon, where the court reversed consecutive sentences for that very reason. 

As I wrote at the time, though, Chatmon is wrong:  2929.14(C)(4) only applies to felony sentencing. Consecutive misdemeanor sentences are governed by RC 2929.41, which allows a judge to impose them up to 18 months.  The Alexander panel gets that right, and affirms.  In defense of the Chatmon panel, their decision was largely the result of the city prosecutor conceding the issue.

State v. Murray mainly serves to demonstrate how difficult it is to win a Batson challenge.  The prosecutor used his first two peremptories to excuse two black jurors, and when he tried to remove a third, the defense objected.  The prosecutor offered as his explanation for the strike that the juror was "falling asleep" and "seemed disinterested."  Defense counsel stated that he hadn't noticed this, and neither had the judge; after more discussion, though, of both this strike and the previous ones against the other black jurors, the judge overruled the objection. 

The problem, as the panel notes, "body language and demeanor are permissible race-neutral justifications for exercising a peremptory challenge."  Given the wholly subjective nature of those observations, and that the judge isn't required to independently ascertain that they exist, the bottom line is that if a prosecutor can't come up with a "race-neutral" explanation for a peremptory, he's just not trying very hard.

And that's the basic problem with Batson.  The fact is that almost all peremptory challenges are wholly subjective:  we don't like the way a juror is staring at the defendant, she's smiling too much at the prosecutor, he's got a faraway look in his face...  Voir dire is far more art than science, and Batson's attempt to regulate that, no matter how well-intentioned, is mostly futile.

By the way, my favorite all-time quote on voir dire, from Richard "Racehorse" Haynes, after his successful defense of wealthy Texas oilman Cullen Davis on charges that Davis had hired a hit-man to kill the judge handling his divorce:  "I knew we had the case one when we seated the last bigot on the jury."

In State v. Allen, the main issue is whether a police officer should have been allowed to testify that about the nature of the bullet holes found in the victim's car.  That argument is doomed by the fact that the attorney never objected to the testimony at trial, so it's reviewed for plain error.  I'm not sure it would be error in any event, and it's certainly not something that would have affected the outcome of the trial, which is the standard for plain error.  

But the court notes even that wouldn't be enough: 

Even if an accused shows that the trial court committed plain error affecting the outcome of the proceeding, an appellate court is not required to correct it... [the Supreme Court] has admonished courts to notice plain error 'with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.'

Think about that for a minute.  If the error affected the outcome of the trial, that means that the defendant should've been acquitted, instead of convicted.  I'm figuring that someone getting convicted when he should've been acquitted is pretty much the definition of a manifest miscarriage of justice.  But I guess that's just me. 

Think about that for a minute.  If the error affected the outcome of the trial, that means that the defendant should've been acquitted, instead of convicted.  I'm figuring that someone getting convicted when he should've been acquitted is pretty much the definition of a manifest miscarriage of justice, but I guess that's just me. 

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