March 2016 Archives
Diversity training. The New York Times provides yet another reason why I don't get all tingly about President Obama's pick of Merrick Garland for the Supreme Court. In an article headlined, "In Criminal Rulings, Garland Has Usually Sided With Law Enforcement," we learn that "of 14 criminal cases identified by The New York Times in which Judge Garland voted differently from at least one fellow judge, he came down in favor of law enforcement 10 times." Not once did Garland dissent in favor of the defendant.
That's perhaps not surprising, since in his pre-judge life he was a Federal prosecutor. One-third of the Supreme Court justices are women, which is slightly below their proportion in the general population. But one-third of the population aren't former prosecutors, and should Garland be confirmed, which admittedly is highly unlikely, he will join two other former prosecutors, Alito and Sotomayor. The last criminal lawyer to sit on the Court was Thurgood Marshall, who retired a quarter-century ago.
According to my BFF Lexis, I've handled 210 appeals, in eight of the twelve Ohio appellate districts, the Ohio Supreme Court, and the 6th Circuit Court of Appeals. And I've been fairly successful. I won a case in the Ohio Supreme Court last year, and there was a stretch a couple years back where I got five straight life sentences vacated.
I didn't realize until I attended a seminar in Dayton a couple of weeks ago that I was doing it all wrong.
The Supreme Court's going to hear oral argument in State v. Jones, the en banc decision from the 8th District on pre-indictment delay, on April 20. It's also holding another case from the 8th on that subject, which will be probably be determined by the outcome in Jones.
I've got a feeling that the 8th District's decision last week in State v. Powell is on its way there, too.
I've got two oral arguments coming up in the Supreme Court next month, so I was intrigued when I ran across an article in SCOTUSblog entitled "Does oral argument matter?" I learned that a comparison of cases in the 1958 to 1960 terms to the more recent ones shows that "Justices today are more likely to speak 'harshly,' as well as make more jokes than they did in the past." That's not particularly helpful, especially since my viewing of numerous oral arguments in the Ohio Supreme Court has not led me to confuse that with bits from the Comedy Store. There was another study of Harry Blackmun's notes on oral argument, which included grades for the attorneys, the study concluding that "the quality of oral argument does seem to affect the Justices' votes." Or at least Blackmun's.
To counterbalance that, I have what one attorney told me about his conversation with former Ohio Supreme Court Justice Craig White. When he asked White whether he could remember an instance where an oral argument affected the outcome of a case, White responded that there was one case he could remember, where the vote going into argument was 7-0, and afterwards it became 6-1.
So I'll probably just make up something on the way to the courtroom. Just kidding. I'm guessing if I did, the justices would indeed "speak harshly" to me.
"Dodging a bullet" might not be the most appropriate metaphor to describe a defendant getting a break in a murder case, but Derrell Shabazz dodged a big one last week.
Several months ago, I wrote a brief on an aggravated murder case where I explained that the defendant's obtaining a gun could have been for self-protection, as opposed to, say, pumping two bullets into his wife. The two were going to a bar, and as I put it in the brief, "Even assuming that it was a gun Hicks retrieved from the car, the more likely explanation is that he wanted it for protection: as this court's decisions sadly attest, bar shootings seem as much a staple of Cleveland life as the ineptitude of its football team."
Pretty clever, huh?
I followed it with a string cite to five cases involving bar shootings, which I pulled up in about two minutes by plugging "(bar or tavern) and murder and court(Cuyahoga)" into my Main Homie LEXIS.
Pretty clever, huh?
The first case I cited to was Shabazz.
I wonder if there's a correlation here...
The Supreme Court's opinion two weeks ago in Wearry v. Cain began, "Michael Wearry is on Louisiana's death row." It ended with his conviction vacated and his case sent back for retrial.
A retrial's not likely, because at this trial a lot of evidence will come out that the prosecutor hid at the first one. Like the first three statements of their star witness, who claimed to have been at the scene of the crime. Those statements "differed from the others in material ways" until his story at trial "bore little resemblance to the original account." Or the statements by three other inmates that the star witness had told them he was lying to get out of prison. Or the fact that the prosecution made a secret deal with another key witness, then told the jury that the witness "hasn't asked for a thing."
There's more, but you get the idea. The dissent by Alito and Thomas seemed more focused on the summary nature of the Court's disposition: the case was decided without briefing or argument.
Some can be.
Like I said, there is more, and the "more" is that the Court didn't even bother with Wearry's second claim, ineffective assistance of counsel. Not that there wasn't any basis for it. This is a capital case, remember. Wearry's big defense was alibi: he claimed to have been at a wedding reception at the time of the murder. The defense attorney never tried to interview any of the guests, and actually didn't do any investigation at all, nor sought the employment of an investigator; he relied on what the state gave him.
Then I found out from the New York Times on Sunday that the guy might have actually been a real estate lawyer, working for free.
Ohio is the only state in the Union to impose the burden of proving self-defense on the defendant. Brian Porter takes a run at changing that. We learn things about sex offenses that we didn't know. Two sentencing cases and a rush to justice round out this week's review of my favorite appellate court. (Really. No, really.) Let's take a look.
More news about the Supreme Court emanated from the Rose Garden last week than from the courtroom, with President Obama's announcement of his pick of Merrick Garland to take Scalia's seat. Garland is 64, about 10 years older than Supreme Court nominees in the past several decades, and described as a "moderate liberal." (Not so much in criminal cases; reports note that his record on the D.C. Circuit court shows he rarely goes against the prosecution.)
The pick is obviously designed to force a rethinking of the GOP leadership's insistence that it will not even meet with a nominee, let alone hold hearings or vote on him. Cracks are appearing in that wall, with Republican Senators facing re-election in blue or purple states already calculating how their intransigence will play, given that two-thirds of the country favors having an up-or-down vote on the nominee. There's some talk that the GOP may simply defer consideration of Merrick until after the election, then move on it in a lame duck session if Clinton (and maybe a Democratic Senate) is slated to take office in January. After having advanced the argument that "the people" should select the next justice through the election of the next president and senate, moving to immediately vote on the nominee because "the people" made the wrong choice seems a tad too hypocritical, even under modern political standards.
Then again, maybe not. Here's an ad run by the Judicial Crisis Network, a right-wing group who is conducting oppo research on Obama's potential picks, and here singled out Iowa judge Jane Kelly, not for what she did as a judge, but what she did as a lawyer.
We won't bring up John Adams' representation of the British Soldiers in the Boston Massacre, because that would just confuse the people at JCN, and possibly prevent them from producing more odious ads of this nature.
You would've had a hard time finding anybody in the Justice Center here in Cleveland who thought Tim McGinty was going to lose the election for County Prosecutor. In fact, just about everybody figured he'd win big. He had in 2012, getting over one-third of the vote in a five-person race, 14% more than his closest competitor. If somebody was going to win this election by 10 points, the smart money had it being McGinty.
So much for the smart money. Tuesday, Mike O'Malley made McGinty a one-term prosecutor, beating him by a 56 to 44 percent margin.
As the unnumbered legions of my regular readers know, I'm not a big fan of Ohio's sentencing law. A less nuanced way of saying that is that I think it's stupid, especially where appellate review comes in.
So I'm not surprised by the outcome of Supreme Court's decision yesterday in State v. Marcum. Marcum was convicted of setting up a meth lab in the house she shared with her children. She got ten years, the 4th District upheld that, and the Supreme Court unanimously affirmed. Dog bites man. No story here.
But boy, does Marcum open up a loophole.
In State v. Shaw, Shaw appeals from the denial of his motion withdraw his plea to involuntary manslaughter and aggravated burglary. The one truly surprising thing about the case is that he only loses by a 2-1 vote; there's actually a dissent, which argues that pre-sentence motions to withdraw pleas should be "freely and liberally granted." That's the law, but it's essentially honored only in the breach: there are literally hundreds of cases which hold that a "change of heart" is not a sufficient basis to seek withdrawal. If I want to back out of a deal for new gutters for my house, I've got three days to do it. If I try to back out of a deal which is going to send me to prison for fifteen years minimum, I'm out of luck.
Every now and then, the Ohio Supreme Court decides to "ride the circuit," holding oral arguments outside Columbus. The arguments on April 20 are going to be held in a high school auditorium in Meigs County. Although the Tourism Board does its best to make the place sound alluring (I'm not sure how being "less than 100 miles from three major commercial airports" is a selling point - although it sounds like it makes it harder to escape, but there's always Frisbee Golf), I probably would've been content to go to my grave never having been there. That's not to be; one of the arguments that day is in State v. Jones, the case on pre-indictment delay, which I'm handling.
You know those signs in business establishments that say "No Public Restrooms"? Well, apparently there aren't any of those signs at Cleveland Hopkins Airport. Nedra Dickerson and her son, Aaron Hendon, travel out there to use the bathroom. A cop approaches Nedra - he's seen her before - and tells her she can't loiter. Her son comes out of the restroom a minute later, the argument escalates, and Nedra and Aaron are arrested, charged, and convicted of criminal trespass.
That goes up on appeal, and the two panels come to differing decisions, so all twelve judges - well, eleven, since one of them handled Aaron's case in the municipal court - get together en banc to sort this out in Cleveland v. Dickerson.
If you were the general manager of the New York Yankees, and you tell your scouts to find a defensive catcher, quick-footed shortstop, or a pitcher from last year's World Champion Kansas City Royals, you probably wouldn't be surprised if they reported on a defensive catcher from the Minnesota Twins. But if you told your real estate agent find you an apartment, house, or condo in New York City, I'm guessing you wouldn't be too happy if they wanted to show you a house in Sacramento.
Those examples found their way into the Supreme Court's opinions - the former in the majority opinion, the latter in the dissent - in Lockhart v. US. Lockhart had been convicted of possessing child pornography, and earned ten-year mandatory minimum sentence because he had a prior state conviction "relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward." But wait, said Lockhart: his prior conviction was for sexual abuse of his adult girlfriend, not "a minor or ward."
This dispute involves two semantical constructs: last antecedent (a limiting clause applies only to the noun or phrase it immediately follows) and series qualifier (a modifier at the end of the list applies to the entire list). The Court voted 6-2 that the last antecedent rule prevails: only the "abusive sexual conduct" applies to minors, and thus Lockhart's conviction of sexual abuse of an adult gets him the minimum mandatory sentence. At oral argument, the late Justice Scalia had suggested that the rule of lenity - ambiguities in a criminal statute are resolved in favor of the defendant - applies, but the majority gave short shrift to that, essentially deciding there was no ambiguity.
President Obama is supposed to announce his nomination for Scalia's replacement this week, despite Republican insistence that they will not even talk to the nominee, let alone hold hearings on him, let alone vote on confirming him (or her). The talk is that Obama will nominate a Federal appellate judge who was confirmed with near-unanimous support from Republicans. That's very unlikely to move the Republicans - if they did hold hearings, their base would probably show up at their doors with pitchforks - but it will ensure that it remains a major political issue in the upcoming presidential campaign.
Nothing in the Ohio Supreme Court, so let's head over to the courts of appeals...
You've come a long way, baby. If two more Supreme Court justices leave the bench, either vertically or horizontally, over the next few months, the Court will then have the same amount of justices it had in its opening session at New York City's Royal Exchange Building almost exactly 216 years ago. That's the fewest we've ever had; the most is ten. We've had nine since 1869. So there's been some talk of using Scalia's death as a reason to cut down on the number of justices on the court.
If you're charged with a crime in Florida, unless it's first degree murder, you get a jury of six. That may or may not be a good idea - the jury research indicates it probably isn't - but it definitely works against the defendant. After all, it wasn't Six Angry Men, was it? The research shows that the more people on the jury, the less likely a conviction. It depends on who's on the jury, too. Juries are about 20% less likely to convict a defendant if there's a black on the jury, even if it's only one. The chances of having a black on the jury is substantially greater if you have twelve jurors instead of six.
And the chances of having three women Supreme Court justices is much greater if there are nine of them than if there are seven.
When the Supreme Court decided Planned Parenthood v. Casey - the decision which affirmed Roe v. Wade, but said that there could be reasonable restrictions on abortion as long as it did not "unduly burden" the right to one - Sandra Day O'Connor was the only woman on the Court. She was a conservative, but she signed on with the majority.
There were three women on the bench on Wednesday morning to hear the oral argument in Whole Woman's Health v. Hellerstedt. The case involves Texas' new law outlining restrictions on abortion. The three women weren't conservatives. And they spent most of the hour of argument beating up the Texas Solicitor General. Dahlia Lithwick, one of my favorite Supreme Court reporters, has a nice piece on it in Slate, if you're so inclined.
I learned a lot of things about Ferguson in August of 2014, when police officer Darren Wilson shot and killed an unarmed black teenager. I learned that Ferguson is about 75% black, but whites control the city council. I learned that the Ferguson police force has the kind of weapons and equipment to take on a Navy Seal team.
Here's what I learned during the oral argument in the Supreme Court last week in Utah v. Strieff: In Ferguson, about 80% of the residents have a minor traffic warrant outstanding.
The State claimed that Ronald Inkton was one of three people who raped a woman behind a K-Mart. The two others were caught at the scene, but the third escaped. The two who got caught rolled over on Inkton, but the lack of any forensic evidence, the victim's shaky ID, and the problems with snitch testimony gave Inkton a shot. Except that the day of the crime, Inkton posted a note on his Facebook page to one of his accomplices:
Man, damn, man. Why didn't y'all run when told y'all to run. Now I won't see y'all niggas for a minute. Man, y'all niggas was squad. I'm going to miss y'all niggas. I love y'all niggas. Man no homo. Free Dante. Free Dugga. Some Kinsman savages.
Inkton is left to appeal his rape conviction on the grounds that the post wasn't authenticated. That's a tough hill to climb, given the low standard for authentication, and it becomes a much tougher climb because Inkton's Facebook page prominently displayed his picture. I guess we won't be seeing Inkton for a minute, either.
View more posts in the Archive »