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July 2016 Archives

Some you win, some you lose, and sometimes you do both

Yesterday, the Supreme Court handed down the decision in State v. Jones.  I represented Jones.  He was the appellee.  The case got reversed and remanded back to the 8th District.

So why am I smiling?

Continue reading "Some you win, some you lose, and sometimes you do both" »

What's Up in the 8th

It wasn't the best of times for the 8th District, nor was it the worst of times.  Oops, sorry, I thought I was writing a speech for Melania Trump.  The judges of the 8th apparently decided to follow my lead and head to the hills in an attempt avoid being near that many Republicans, and issued no decisions last week, so we'll take a look at one they issued the week before.  And, as is often the case here, it's All About Me.

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Case Update

SCOTUS is out of session, and there's nothing new from the Ohio Supreme Court.  I haven't checked out the decisions from Ohio's appellate courts in a while, so let's do that.

First up is the 6th District's decision in State v. Sledge.  Sledge was charged with multiple child rape counts, and pled to two counts of GSI and one count of rape (the State dropped the life spec as part of the plea deal) after the judge granted the State's motion in limine under the Rape Shield statute to preclude any testimony that the children had been raped by their biological father.  The plea was based on Sledge's lawyer's advice that he could appeal the granting of the motion in limine by doing the no contest plea.  Of course, that's wrong.  A ruling on a motion in limine is always preliminary:  if it's denied, you have to object to the evidence at trial, and if it's granted against you, you have to proffer at trial.  The court held that the lawyer's incorrect advice rendered the plea involuntary.

But that wouldn't be a factor if the granting of the motion had been proper; you have to show prejudice for an ineffective assistance of counsel claim, and you can't if an appeal would have been futile anyway.  That's where Sledge gets interesting:  it holds that the Rape Shield statute doesn't apply to sexual abuse of children. 

That makes sense.  The whole purpose of the statute was to prevent putting the victim on trial by allowing cross-examination on her previous sexual history.  That's not a factor in child sex abuse cases.  Sledge cites a few cases from other districts which have come to the same conclusion, so if you've got a case like this, Sledge is definitely worth a look.

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Going home

Terri had brought the yearbook to Starbucks.  We thumbed through it, marveling at the hairstyles and clothes people had almost half a century ago.   "Remember Jane Calter?" she said, stabbing a finger at the picture of the girl with the Big Hair.

"Yeah, we all thought she wore it that way to hide the brain tumor."

Terri slapped at my wrist.  "Stop it!"

"Funny thing is, I ran into her about five years after that, she'd changed her hair style.  Shoulder length.  She was super hot.  Oh, and there's Stachura," pointing to the photo of the the neo-Nazi football coach we had back then.  "He didn't like me," I said.  "I wasn't very popular with the jocks."

"Yeah, go figure," Terri said, rolling her eyes.

"I 'member, saw him at Korvette's one summer after I graduated."  Korvette's was the low-end retailer, now long-gone, that had once sat not a hundred yards from the Starbucks.  "He comes in, sees me working behind the sporting goods counter, gets this huge grin, says, 'Wow, I can't believe Russ Bensing wound up working at Korvette's!'  'I'm just here through August,' I tell him.  'I start law school in the fall.'  Think I broke his heart."  Schadenfreude's a bitch.

I'd had a crush on Terri most of senior high, that wasn't going anywhere.  She had a highly romanticized view of... well, romance.  She started dating a doctor her third year in college, they got married, had a couple kids.  Then he ran off with a nurse, she got the house, there was another marriage...  And then a third, just a month or so ago.  "I met him on Senior Match," she told me.  They were going fly-fishing the next morning, and had a lot of interests in common, she said.  She seemed happy.

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What's up in the 8th

The Holy Grail for attorneys representing felony defendants here in Cuyahoga County is the misdemeanor plea.  So much of criminal representation involves simple risk/reward analysis, and rarely does that come down on the side of eschewing a misdemeanor and instead going to trial on a felony, especially in a county where judges are allowed to sentence only two misdemeanants a year to jail because of overcrowding there.  How well justice is served by this is another matter; as one judge told me, "In this county, innocence is a misdemeanor."

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Friday roundup

True remorse.  The State offers a defendant a plea deal before trial, a pretty good one, it looks like.  The defendant decides to take his chances at trial, with an unfortunate outcome.  At sentencing, the judge says, "You were offered the opportunity to accept responsibility in this matter, but you chose not to do so," and gives him a sentence a bit north of three times what the plea offer was.  You write the appeal, arguing that the judge punished the defendant for going to trial.  The panel sloughs it off, concluding that the judge did no more than take into consideration the defendant's lack of remorse, which is a perfectly proper consideration under RC 2929.12(D) and (E).

If this has happened to you, you might be entitled to a cash award.  Whoops!  Been listening to too many ads for lawyers.  Of course it's happened to you, and just about every appellate lawyer who's made that argument in a sentencing case.

There's certainly something to be said for the argument.  After all, the statute is merely the codification of the age-old tenet that rehabilitation is a penal goal, and rehabilitation depends upon the defendant's acceptance of responsibility for the wrongfulness of his actions.

On the other hand, there is a lot of law holding that a defendant cannot be punished merely for exercising his constitutional rights.  That takes some force from the Supreme Court's decision in North Carolina v. Pearce, which held that a judge's stiffer sentence after a successful appeal was vindictive.  Pearce has been severely undercut since then (here's a post I did on the subject nine years ago), but there's no question that a case is coming back if a judge told a defendant, "I'm giving you more time because you turned down the State's plea offer and went to trial."

Not that judges don't do that on a regular basis; most of them are smart enough not to say it.  Still, if the only thing in the record concerning the defendant's supposed "lack of remorse" is the fact that he went to trial, well, that's his constitutional right, and he shouldn't be punished for exercising it.  It's a fine line, maybe, but it's a line that needs to be drawn.  We need to start trying to draw it.

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Supreme Court Recap - 2015 Term

No 8th District summary today; there were only three criminal decisions last week.  Instead, it's time for the annual wrap-up of SCOTUS decisions for the 2015 term.  The link is to the case in SCOTUSblog, where you can find a far more detailed analysis.  A brief summary of the decision follows, with links to my post on it, if any, and the actual court opinion.  If you need to look for it in the future, just type in "Supreme Court Recap 2015" in the search box.  If you type in "Supreme Court Recap," you'll get a recap for previous terms.

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Catching up with SCOTUS

A number of Supreme Court justices have turned out quite differently than the presidents who appointed them counted on.  Felix Frankfurter, picked by FDR, became much more conservative once on the Court.  (He's the one who turned down Ruth Bader Ginsburg for a clerkship because she was a woman.)  Earl Warren, Harry Blackmun, and David Souter came as major surprises.  You might add Anthony Kennedy to the list; I doubt Ronald Reagan would have anticipated that Kennedy would be the lead advocate on the Court for gay rights, and lend his vote this term to upholding affirmative action and striking down abortion restrictions.

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Bail reform

The notable thing about the criminal justice system is that it always seems to need reform. Five years ago Ohio saw the passage of HB 86, which made no fewer than 156 modifications to the criminal code, every one of which was designed to send fewer people prison, and to have those who went do less time.  No, the Ohio legislature hadn't gone soft-hearted:  the goal was to reduce the prison population and thereby save money.  It looked like a bill to reform Federal sentencing was in the works - not so much anymore - which advocates noted would save $722 million over ten years.  (Of course, $72 million in the Federal budget is like the change you find under the couch cushions.)

Cuyahoga County has been no stranger to reform.  There were efforts to reform the assigned counsel system, the grand jury system, and the process of transferring felony cases more quickly from the municipal courts. 

But for right now, the Next Big Thing here is bail reform.  

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Exploding meth labs and RC 2933.33

Back in 2006, the Ohio legislature passed RC 2933.33, which basically holds that if the police have probable cause to believe that there's a meth lab on a premises, they can search it without a warrant, because the risk of explosion creates "exigent circumstances."  Back in May, in State v. Maust, the 8th District relied on that statute in rejecting a claim of ineffective assistance of counsel in failing to file a motion to suppress a search of his bedroom.  The cops had gone to arrest Maust on a warrant, and found ingredients for making meth in his bedroom.  Maust lived with his father, and argued that the police search of the room was based on his father's consent, and he didn't have authority to consent.  No matter, said the court; the cops saw some ingredients through the open door when Maust walked out, and that gave them probable cause to believe that there was a meth lab there, so the statute meant they didn't need a warrant, and a motion to suppress would've been futile.

Two weeks ago, in State v. Link, the 11th District tossed a search of a meth lab, finding that the four hours between the time the police had probable cause to believe there was a meth lab on the premises, and the time they actually conducted the search, gave them ample opportunity to get a warrant.

Link was wrong:  the fact that exigent circumstances didn't actually exist is irrelevant, because the statute says they did.

The problem with the statute is that it's blatantly unconstitutional.

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What's Up in the 8th

Two weeks of 8th District decisions, and a day late at that.  Among the fourteen cases we find some support for the observation that youth is wasted on the young, the court wrestles with the question of what constitutes an "emergency" for confrontation clause purposes, and another sentencing case.

Continue reading "What's Up in the 8th" »

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