May 2016 Archives
Nautica Freeman needs some new friends. She accompanied three of them, all juveniles, to a house party to confront another girl, who was "having sex with [A.O's] boyfriend. The four went into a bedroom and found the girl in flagrante delicto with the aforementioned boyfriend, whereupon A.O. delivered punched her out.
Freeman was charged with first degree burglary and assault, but the good news is that the State dropped it all the way down to 4th degree burglary, and dismissed the assault. That was the extent of the good news: the judge shipped her for twelve months.
Anybody who's been around a criminal courtroom for more than three weeks knows that defense lawyers want as many blacks on the jury as they can get, and the prosecutor wants as few. For a very simple reason: blacks tend to be more distrustful of authority, and are less likely to believe police officers. Figure that.
I wonder how, and whether, that's going to change after the Supreme Court's decision on Monday in Foster v. Chatman.
You don't see too many 25-plus year prison sentences for drug trafficking in Federal court anymore, but Davonne Keith manages to get 27, in state court, no less. Keith loses the suppression issue, and just about everything else, but it all comes back because the judge never asked Keith if he had anything to say before sentencing him. That's allocution, and it's a constitutional right: the judge has to ask the defendant.
So what do you figure is going to happen when Davonne shows up for the secquel, Sentencing II: Now We Mean Business? I'll take the action of anybody who wants to go with the under of 27.
State v. Arnold looked a lot better going into the Supreme Court than it did going out.
According to Arnold's memorandum in support of jurisdiction, Arnold was on trial for domestic violence against his father, Lester. When the prosecutor called Lester to the stand, though, he took the 5th Amendment. Not for long; the prosecutor told him he'd have to answer the questions, and the judge told him he'd be held in contempt if he didn't. Lester then abandoned his refuge in the Constitution and instead sought sanctuary in the favored plot line of soap operas, amnesia. The prosecutor had him read into the record the statement he'd made to the police, and it was admitted as substantive evidence.
Now, I'm a big believer in the theory that if it sounds wrong, it probably is, and all that struck me as wrong on several levels.
So how'd the Supreme Court uphold Arnold's conviction by a 4-3 vote a couple weeks back?
Well, you can say this much for the gang at the St. Paul crime lab: they weren't corrupt. They were just breathtakingly incompetent.
An assistant public defender was one of the first to discover that. She was representing a defendant charged with possessing drugs, and being willing to go the extra mile, set up a meeting with the analyst who'd tested the drugs. She found that the lab was run by a police sergeant without any scientific background, instruments weren't cleaned between testing, and the "analysts" often used Wikipedia as a technical reference.
Drugs and guns. There are a lot of people - and I'm including lawyers, prosecutors, and judges, the people responsible for hashing out these things - who believe that if the police have a right to stop you, they have a right to frisk you. Not so. The cop has the right to stop you if he has a reasonable suspicion that you're engaged in criminal activity. To justify a frisk, though, he has to show that he had a reasonable suspicion that you were armed and dangerous.
That distinction is all but eliminated in drug cases.
It is well recognized that the need for a protective pat-down becomes more urgent where drugs are involved. The very nexus between drugs and guns can create a reasonable suspicion of danger to the officer.
The 8th District said that last week in State v. Blevins. You can find countless quotes to the same effect in opinions from courts of just about every level, state and Federal.
Apparently, the guy who first came up with the observation watched one too many episodes of The Wire. Because that's not the way it is in real life.
I greeted the passage of Ohio's Castle Doctrine in 2008 with some skepticism. The doctrine creates a presumption that you've acted in self-defense if you use deadly force to repel an intruder in your home. As I wrote at the time, whether this was worth the fuss was questionable: "It's not as though the nightly news regularly bombards us with scenes of homeowners being perp-walked out of their houses for shooting a burglar."
Little has occurred since to dissuade me from that belief.
This what I wrote when I celebrated the 5th anniversary of this blog:
I've had a good time here. I doubt there'll be a 10th birthday, and, who knows, there may not even be a 6th. We'll take it a year at a time. I've enjoyed this, and thanks for being around to help me do that.
That was five years ago.
Guess I'm still here, huh?
Now I have to figure out why.
There are weeks when I scrape to come up with something to write about. No decisions by the Potomac Nine Eight or the Olentangy Seven, nothing notable in the courts of appeal, nothing in the 8th, no legal event or topic which stirs my outrage or even my fancy... And then I go away for a week and the gang down in Columbus hands down five decisions in criminal cases.
Let's take a look.
Ah, the Bad Old Days of the Cuyahoga County Prosecutor's office. Laurice Glover, Eugene Johnson, and Derrick Wheatt can tell you about them. They were convicted of the murder of Clifton Hudson in 1996. Eighteen years later, they discovered that the prosecutor, Carmen Marino, had hidden evidence of statements given by two other eyewitnesses, which were contradictory to the testimony of the only eyewitness to appear at trial. Last week, the 8th District affirmed the grant of a new trial on that basis.
Part of the State's argument was this:
The state argues that the trial court reached its decision by considering evidence outside of the record, namely, the reputation of Marino as former first assistant county prosecutor, as well as the trial court's own personal opinion.
There was much outside the record as to the reputation of Carmen Marino.
Sometimes you can tell right away. I had a case once where I met my client and his father at a pre-indictment pretrial, and within a minute I knew my client was psychotic. I went in and told the bailiff we needed a referral, we sent him down to the psych clinic, and it took them the same amount of time it took me. They called up to the bailiff and said he was actively psychotic, and needed to be remanded.
Sometimes you can't. I had a case once where I met the client over at the jail and spent half an hour with her, without noticing any problems. I nonetheless had her referred to the psych clinic because she'd been diagnosed once as bipolar. They called a couple of weeks later and said she had to be sent to a psych hospital to be restored to competency.
I pulled into the parking lot for Meigs High School at 8:15 on a Wednesday morning a couple weeks back. I wasn't sure I was at the right place until I saw a bunch of people in suits heading for the entrance. That meant it was either a DEA raid or the Supreme Court argument I was going to have in a couple of hours.
Cross off the DEA raid. I was in the right place.
Three hours later, I set off on the four-hour return drive back to Cleveland, which gave me ample time to play my favorite game, "What I Should Have Said Was..."
There was little subtlety to the text message: "State quoted your godforsaken blog in their motion to reconsider Goodson..." It was sent by my friend - well, up to that point, anyway - Erika of the Public Defender's office, who'd done a masterful job of getting Cassandra Goodson's plea vacated. I'd talked about State v. Goodson a couple of weeks ago. Goodson had been a coach at a juvenile residential treatment facility, and had fooled around with two of the residents. The judge had hammered her with a 44-year sentence, but the court vacated it on the grounds that the judge hadn't advised her of the possibility that he could run the sentences consecutively.
The problem with the opinion was that the judge had told Goodson he could do that. He didn't tell her what the maximum penalty was, but he unquestionably told her that he could run the sentences consecutively. As I said at the time, "Basically, the judge's only failing was that he didn't do the math for Goodson."
And that's exactly what found its way into the State's motion for reconsideration.
It's happened before. The first time was about eight years ago, and they've done it several times since.
So, this is for the guys and gals over in the county prosecutor's appellate division:
In most state districts and Federal circuits, an en banc decision becomes the accepted law for that jurisdiction. Not so much in the 8th. Several years ago, the court in State v. Nia ruled, by an 11-1 vote, that henceforth they would require a trial court to strictly comply with the findings requirement for consecutive sentences. That ruling came to be honored mainly in the breach before the ink on the opinion was even dry, various panels engaging in Olympian semantical gymnastics to find something the judge said which could be construed to be one of the findings.
And so it appears to be with State v. Jones, the en banc decision on pre-indictment delay the 8th issued last year. In State v. Wilson, the court finds that Wilson failed to support his claim of pre-indictment delay with proof of actual prejudice that was "specific, particularized, and non-speculative," the very standard that Jones rejected. The problem with Wilson's case was not that proof of prejudice wasn't sufficiently specific, it was that it was non-existent; there's nothing in opinion indicating that Wilson could point to a single witness or piece of evidence that was lost by the delay. (By the way, I argued Jones in the Supreme Court a couple weeks back; I'll have a post on that on Thursday.)
Good to be back. I had a nice vacation, spending a weekend in Chicago with my daughter. Not so nice meal; you know you've gone to the wrong Chinese restaurant when you find that the menu includes "General Chow's Chicken." The food arriving on our table three minutes after we'd ordered it was not a positive sign, either.
While I was away, SCOTUS issued two decisions, Molina-Martinez v. US and Welch v. US. Molina-Martinez had pled to a crime with the sentencing guideline range of 77 to 96 months, and the judge had sentenced him to the bottom of that range. On appeal, the lawyer discovered that the guideline should have been 70 to 87 months. The government agreed, but the 5th Circuit found no harm, no foul because the sentence still fell within the correct range; since this was on plain error review, the defendant had to show some additional evidence of prejudice beyond the simple calculation error. The Supreme Court rejected that view, and while the decision doesn't explicitly say that the error itself demonstrates prejudice, it comes pretty close to that, making it much easier for defendants to show sentencing errors even if they're not raised in the trial court.
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