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What's Up in the 8th

Here's the situation.  Potential client calls you, wants you to handle his criminal case.  One problem:  he's scheduled for trial in a week.  You file a notice of appearance and a motion to continue the trial date.  What do you think the chances are that the judge will grant it?

If you're in Cuyahoga County, the chances just got a lot better.

The above scenario is exactly what happened in State v. Lacey.  The judge denied the new attorney's motion to continue, he withdrew, and on the day of trial Lacey pled guilty.  The panel found that the denial of the motion to continue was an abuse of discretion, and required vacating the plea.

Lacey had some good facts on his side:  while he hadn't requested any prior continuances, the judge had continued the trial once for four days on her own motion, and again for eight days because the prosecutor was in another trial.  And he didn't have any bad facts; the panel found "no pattern of hiring and firing counsel as a dilatory tactic or in requesting previous continuances upon contrived grounds."  But the main driver of the decision was the increasing recognition of a defendant's right to retained counsel of his choice, and the panel's willingness to find an abuse of discretion in those circumstances is notable.

Also notable is the court's decision in State v. Shivers.  In all the time I've been doing this (ten years in May), I've seen maybe two cases where an appellate court has reversed a trial court's denial of a motion to withdraw a plea. 

Make it three.

The driving force here is a discovery violation:  Shivers and a witness in the case had been interviewed by the police, but the videotapes of the interviews had never been turned over to the defense.  The State responded by contending that they had turned over summaries of the interviews, and that they didn't know the videotapes existed.  Too bad, so sad, says the majority:  the three-page summary was a "hollow substitute" for the two hours of interviews, and the prosecutor is responsible for knowing what's in the police file.

A judge's ruling on a motion to withdraw a plea is also reviewed for abuse of discretion, and for the panel to find a judge on the wrong side of that is surprising enough, but to find it twice in the same week has me looking for other signs of the coming Apocalypse.  Plus, the dissent in Shivers makes a decent case that Shivers really doesn't point to any new exculpatory evidence that was revealed by the tapes but wasn't included in the summaries.  Chalk this one up to the court taking a more jaundiced view of discovery lapses by the State.

Lorenzo Thigpen's conviction of aggravated murder is upheld, but there are a couple of interesting tidbits in the decision.  The first is found in a footnote, which tells us that when Thigpen cross-examined a witness regarding inconsistencies in his statement, the State claimed it could have the witness read the entire statement.  Defense counsel backed off; the court agrees that "the state could offer the witness' statement on redirect examination," as it has on numerous recent occasions.

The issue here is EvidR 106, which provides

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which is otherwise admissible and which ought in fairness to be considered contemporaneously with it.

The purpose of the rule is simply to prevent a party from distorting the import of a statement; as one court explained, "an adverse party may introduce any other document or part thereof when one party has made use of a portion of a document, such that misunderstanding or distortion can be averted only through presentation of another portion."  It doesn't give carte blanche for the other party to have the witness read the entire statement.

But what the court taketh away with one hand, the court giveth with another.  Thigpen also challenged his conviction for failure to comply, which provides that "No person shall fail to comply with any lawful order or direction of any police officer invested with authority to direct, control, or regulate traffic."  Does this mean that only a direction given by a police officer who's on traffic duty can give rise to a violation of the statute?

The court says no; a police officer has inherent authority by virtue of his position to direct traffic.  That that does require him to be in uniform and in a marked car; "police officers in plain clothes or unmarked cars cannot issue traffic citations," and so presumably an unobeyed order by them couldn't constitute a failure to comply.

And then we have this:

R.C. 2921.331(A) only requires compliance with a "lawful" order from a police officer. So, for example, orders that violate a person's rights against unreasonable searches and seizures under the Fourth Amendment of the United States Constitution, or the Fifth Amendment right against self-incrimination, are not lawful and cannot be the basis for a violation of R.C. 2921.331(A).

So if the cop goes to pull you over, you can take off and drive 80 mph through downtown Cleveland, and if some judge decides the cop didn't have a basis for pulling you over, you walk; it's a complete defense.  And how do you determine whether there the initial stop was illegal?  Normally, that would be up to the trial court on a ruling to suppress evidence, but here there's no evidence to suppress; an illegal stop can lead to the suppression of evidence seized as a result of the stop, but it doesn't otherwise affect the validity of the arrest.

It's dicta, of course, but one thing I've found with trial judges is that they don't make much effort sorting out what's dicta and what's not.  It's not that they don't understand the concept, it's just that if they've got a court of appeals saying something, they're not going to ignore it.  So defending failure to comply cases just got more interesting.

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