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Case Update

If there was any question as to how Justice Scalia's death would affect the Court, Dow Chemical gave 835 million answers.  That's the number of dollars it forked over to settle a class action suit which had figured to be one of the Court's major cases this term.  In settling the case, Dow frankly admitted that its legal position hinged on two five-to-four decisions written by Scalia, who was a long-time proponent of significant curbs on class action suits.

The Court did hear oral argument in two cases last week.  One was Utah v. Strieff, a search and seizure case focusing on the exclusionary rule, which we'll talk about on Wednesday.  The other was Taylor v. United States.  Taylor was a member of the "Southwest Goonz," who robbed drug dealers.  He appealed his conviction under the Hobbs Act, which prohibits robbery affecting interstate or foreign commerce, arguing that the marijuana dealer he robbed grew his product only within the state.  The Court had earlier held that drug dealing inherently involves interstate commerce, and last week's oral argument gave no indication that the Court was going to move from that position.

There were a couple of disciplinary cases involving some hometown boys.  Common Pleas judges Bridget McCafferty and Steven Terry were caught up in the corruption case brought by the Feds several years ago, and both went to prison, McCafferty for 14 months, and Terry for 63.  McCafferty had lied to FBI agents, while Terry had actually rigged a case, denying a motion for summary judgment in a mortgage dispute at the direction of his political benefactor, Frank Russo.  McCafferty wound up with an indefinite suspension, but Terry wasn't as lucky:  he was disbarred.

Aaron Brockler's case was also resolved.  A few years ago, Brockler, an assistant prosecutor, was handling a murder case, and learned from listening to the defendant's jail calls that he was having trouble with an alibi witnesse, who was upset that he had a child with another woman, Taisha.  Brockler created a fake Facebook page using Taisha's name, and then used that to communicate with the witness, apparently attempting to fan the flames of jealousy.

Brockler was fired, and last week the Supreme Court handed down a stayed six-month suspension.  His career was saved by the narrowest of margins:  the three dissenters would have indefinitely suspended him.

I handled the appeal in the murder case, and one of the arguments, obviously, was prosecutorial misconduct.  The problem was that the judge, a fairly defense-friendly one, couldn't find any harm from Brockler's actions, and damned if I could, either:  the witness Brockler tried to sabotage testified for the defendant anyway.  I had the feeling then, though, and still do, that if it was a defense attorney setting up a fake Facebook page in attempt to affect the testimony of a witness, we wouldn't be talking about disciplinary action, we'd be talking about an indictment.

In the courts of appeals...

If any further evidence was needed as to the mindlessly rote formality of imposing consecutive sentences, it's provided by this portion of the sentencing transcript quoted in the 6th District's decision in State v. Tea:

THE COURT: The sentence that you'll be serving is 12 months on each of the felony nonsupport cases. They are run consecutive, and the consecutive finding, I -- I do need to have something in my hand for that, Jay. I have to make special findings because those sentences are being run consecutive. Will you get that?

THE BAILIFF: Is that in your book?

THE COURT: Yeah, it's in my book.

Apparently, the judge needs a new book - the sentence is vacated and the case remanded because he didn't make the finding that consecutive sentences weren't disproportionate. 

The limitations of what can happen on remand are shown in the 9th District's decision in State v. Henderson.  Henderson was convicted of felonious assault and aggravated robbery, with the judge imposing seven years on the robbery and eight years on the assault, and running them consecutively.  The case got reversed for failure to make the necessary findings, and at resentencing the judge shaved a year off of the sentence on each offense.  Henderson appealed again, and not only did the 9th District affirm, it remanded the case back for imposition of the original sentence.  The only issue on remand was whether the sentences should run consecutively; the trial court was without authority to modify the underlying sentences.

The 8th District's decision in State v. Jones demonstrates that good things can happen on remand, but file it under "no good deed goes unpunished."  Jones was convicted of arson for burning down her ex-boyfriend's house (also file it under "hell hath no fury"), which also damaged four adjacent homes, and got sentenced to 15 ½ years in prison.  That got reversed for failure to make the findings.  On remand, the judge decided to give Jones a break and run the sentences concurrently, for a total of 8 ½ years.  So what happens?  The Case Western legal clinic files an appeal alleging that Jones' lawyer was ineffective for failing to provide sufficient mitigating evidence.  I think too many ineffective assistance claims are bogus, but having some people who aren't even lawyers yet telling you what a crappy job you did getting your client's sentence cut in half pretty much takes the cake.


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