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What's Up in the 8th

I often get letters or phone calls from people who've been in prison for some time, and want to know how to get out.  "Watch the Shawshank Redemption," I usually tell them:  once the direct appeals are concluded, and the time limits for post-conviction relief and Federal habeas have expired, there's not much that can be done.  About the only remedy in those situations is a new trial based on newly-discovered evidence, or post-conviction relief based on the prosecutor's failure to disclose exculpatory evidence.

The defendant in State v. Cannon opts for the former.  He was convicted of murder, largely on the basis of the testimony of two witnesses who say they saw Cannon shoot the victim.  Cannon files a motion for new trial, including an affidavit from one of the witnesses saying that he was pressured by the victim's family to testify against Cannon, but really didn't see him shoot anyone.

One problem with that:  there were actually three people who testified that Cannon shot the victim, one being Cannon himself, although he claimed it was in self-defense.  Granting a new trial on the basis of newly-discovered evidence requires showing a probability of a different result, and a witness who have claims not to have seen Cannon shoot the victim doesn't do that, where Cannon himself admits that he did.

The defendant in State v. Nitsche also reaches for the stars, albeit in a direct appeal.  On two separate occasions, he shoots two people who had the temerity to talk to his girlfriend, killing one and paralyzing another.  This solidifies his street cred as a member of the Heartless Felons, but so horrifies the judge that she imposes a sentence of life without parole.

Nitsche claims on appeal that such a sentence is unconstitutional, given his tender age of 23 and numerous recent US Supreme Court decisions holding that a life sentence without parole for a juvenile is impermissible.  The discerning reader will immediately note the problem with that argument, and the court easily disposes of it, noting that every court to consider the issue has held that those cases don't apply to non-juveniles.  The panel does vacate the restitution award of $2900 for funeral expenses for the one victim because the judge didn't consider Nitsche's future ability to pay, so there's that.

The moral of the story in State v. Sanchez is not to call the bar owner who finds you snorting coke in the bathroom a "fake ass bitch."  (The opinion writes it "fake a** bi**h," but I'm really bright, so I figured it out.)  The owner gets p*ss*d off by this, and calls the cops.  They come and search Sanchez, but don't find anything.  Undeterred, they search his car and find first degree felony weight cocaine. 

The panel finds that there was no probable cause to search the car, and the judge should've granted motion to suppress. Had the lawyer filed one, that is.  (Actually, the lawyer did, but withdrew it, and the successor lawyer didn't renew it).  Not filing a motion to suppress which would've been granted is ineffective assistance, so back it goes.

What happens then is unclear.  Normally, a reversal for ineffective assistance will result in a new trial or vacating a plea, but here the court has held that the lawyer was ineffective for not filing a motion to suppress which would've been granted.  Does that mean it is granted?  I'd certainly argue that, but it's an unusual situation.

If it does go to a hearing on a motion to suppress, Sanchez might be in trouble.  The dissent makes a fairly decent case that Sanchez doesn't have standing to raise the issue.  It's his girlfriend's car, but that's not dispositive; one can still have a possessory interest in a vehicle, such as where the owner loans it to you.  That doesn't describe Sanchez's situation; the girlfriend had actually loaned it to someone else, and Sanchez was a passenger.

But what the court giveth to Sanchez, it taketh away from the defendant in State v. Maust. Maust has Sanchez's ability to cheese people off, on this occasion his grandfather, who calls the police and tells them that Maust is engaging in drug activity and abusing his father, who also lives in the home.  The police find that Maust has two active arrest warrants, go to the home, and are admitted by the father, who directs them to Maust's bedroom.  At the officers' command, Maust exits the bedroom, and the police conduct a protective sweep.  They find what they believe is evidence of a meth lab, and call the fire department, which comes and collects various evidence from the room, all leading to Maust's conviction and three-year prison sentence.

The discerning reader will note the absence of the words "search warrant" in the preceding paragraph.  Again, no suppression motion was filed, so Maust argues his lawyer was ineffective for not filing one.  Instead of being based on a search warrant, the collection of evidence was based on a consent form signed by the father.  No matter, says the panel:  the police would have had the right to collect the evidence under RC §2933.33(A), which provides that if a police officer has probable cause to believe that a meth lab is on the premises, the risk of the lab exploding constitutes exigent circumstances permitting a warrantless search. 

A couple of points here.  First, the lawyers missed the boat on the protective sweep.  There's plenty of cases, like this one, holding that to conduct the sweep, the police have to have a reasonable suspicion that somebody else is present; there's nothing indicating the police had a basis for suspecting that here, and if the sweep goes out, so does probable cause and the ensuing search.

Second, how does the Ohio legislature get to decide when the Fourth Amendment's warrant requirement doesn't apply?  Yes, meth labs can blow up, but a whole lot of bad things can happen in somebody's house, and the cops still need a warrant to enter it.  Imagine if the legislature decided that because all these people are dying from heroin does that if the police have probable cause to believe someone's using heroin, they have the right to enter that person's home without a warrant.  

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