January 2017 Archives
Ever have a case where you worked out a pretty good plea bargain for a client, but you talk yourself blue in the face and he just won't take it? This week, I mean. Sometimes, you hope that the judge will say something that will jar your client back into reality.
That's what happened in State v. White. White was charged with several counts of child rape and kidnapping, with Sexually Violent Predator specifications, Repeat Violent Offender specifications, Sexual Motivation Specifications, He's a Really Bad Guy specifications, Why Do We Let People like this Live specifications ... well, you get the idea. His attorney worked out a deal to plead to a count of rape and one of kidnapping, but White turned it down.
On the Friday before the Monday trial, the judge held a Frye hearing to put the plea deal on the record. After the prosecutor recited it and White rejected it, the judge mentioned a trial which had just occurred across the hall. There, as the judge recounted, the defendant, facing virtually identical charges, had insisted on going to trial, only to see the jury troop back into the courtroom after only a couple hours of deliberations, with guilty verdicts across the board, meaning that the only way he's ever getting out of prison is in a box. White reconsiders, then pleads out the morning of trial.
And then reconsiders again, and appeals, arguing that the judge coerced him into taking the plea.
No new opinions from SCOTUS, but some news nonetheless. Maximum Leader President Trump will announce his nominee for the vacancy on the Supreme Court this week, we are told, among three finalists: Thomas Hardiman, Neil Gorsuch, and William Pryor. The links are to SCOTUSblog profiles of the three candidates, wherein we learn that Hardiman put himself through Georgetown Law School by driving a taxi. If confirmed, he would be the only justice who didn't go to an Ivy League law school and, I'm guessing, the only one to have driven a taxi. Pryor, we are told, "is no friend of criminal defendants," a view confirmed by the blog's recitation of Pryor's opinions in criminal cases. Gorsuch seems to be a Scalia clone, in both style and substance, which might not be too bad, at least in criminal law. While Scalia most certainly was not a friend of capital defendants, the staunch conservative's legacy includes some of the most defendant-friendly decisions to emerge from the Court in the past two decades, like Crawford and Blakely.
Justice delayed is justice denied, and it was certainly delayed for Maurice Clark. He waited five and half years for the trial of his rape case, enduring continuance after continuance -- twenty of them in all.
But he'd been out on bond the whole time, so he wasn't complaining about the delay. His victim, LaTreese Miller, was. She finally filed a mandamus action in the court of appeals asking them to order the judge to try the case. The appellate court mooted the action when the judge finally held the trial, but before that the judge responded to the petition, arguing that victims such as Miller have no standing to raise the issue.
They will if a new initiative to the Ohio Constitution is passed this November.
Some clever lawyering in State v. Simmons. Simmons is charged with shooting at someone, and on appeal from her conviction, her attorney argues that the Supreme Court's decision in District of Columbia v. Heller, which held that the right to bear arms was an individual one, not a collective one, changes the landscape of self-defense law in Ohio. As we all know, Ohio remains the only state placing the burden of proving self-defense on the defendant. Simmons argues that Heller was based on the concept of the right of self-defense, so the state should have the burden of disproving it.
Clever, indeed, but the panel dismisses it as having no merit. "No" merit?" C'mon, guys. Of course, this is a favorite phrase of appellate courts. You'll spend hours and hours researching and writing the hell out of an argument, and the panel will crinkle their collective noses in distaste and dispose of it as being "devoid of merit," as if you'd come up with it while on a meth binge.
SCOTUS grants cert in District of Columbia v. Wesby, which arose when police responded to a complaint about noise coming from a vacant house, and found "scantily clad women and the smell of marijuana." But enough about the parties of my youth, at least as they occurred in a parallel universe. The issues are probable cause and qualified immunity of the police for constitutional violations. I'll keep my eyes glued on this one, and when the decision comes down, I'll try to accompany my insightful analysis with some pictures of scantily clad women.
My egregious faux pas last week - in which I goofed on the effects of a no-contest plea - is still a hot topic; even our soon-to-be Supreme Leader chimed in with a 4:00 AM tweet, "@russbensing screws up again. Sad! @realDonaldTrump will make #thebriefcase great again!" Let's hope he saves me further embarrassment by not mentioning this in his inaugural speech, instead continuing to lambaste Rep. John Lewis, the civil rights icon whose participation in the March on Selma resulted in a skull fracture from a police beating, as "all talk and no action."
What's dumber? Leaving open the door of the warehouse where you've got a marijuana grow operation, or dealing drugs from the house across from a police station? In this week's version of Stupid Criminal Tricks, the contestants are the defendants in State v. Lunder and State v. Ledbetter, respectively. We also learn what trial court and appellate courts can't do, and what attorneys should do.
So here's the deal. I'm in Fire Drill Mode. I've got a reply brief due in the 5th District yesterday. "Yesterday, Russ? You mean you've got to not only finish the brief, but drive it down to Canton, Mansfield, or wherever to file it?"
Let me feed you, baby birds. If you're doing an out-of-district appeal, know the following provision of App.R. 13(A), and know it in your soul:
Documents required or permitted to be filed in a court of appeals shall be filed with the clerk. Filing may be accomplished by mail addressed to the clerk, but filing shall not be timely unless the documents are received by the clerk within the time fixed for filing, except that briefs shall be deemed filed on the day of mailing.
So all I have to do is make sure it gets in the mail by the end of the day. That's still a somewhat daunting task, considering that I have the brief only half-written, in keeping with the guiding principle of my life: "If it weren't for the last minute, I wouldn't get anything done."
So do I devote every moment to the completion of the brief? No; I instead decide to complete the blog post I'd mostly done the night before (when I also could have been working on the brief), on the tactical and strategic questions raised by the recent Supreme Court case of State v. Gonzalez. That case requires the state to present evidence of the purity of cocaine in order to convict someone of more than a fifth degree felony trafficking or possession charge for cocaine.
And in which I wrote the following:
So what are your strategic options? One is to plead no contest, and if the State doesn't come up with a weight, your client walks away with a 5th degree felony. And keep in mind that guilt is determined at the time of the plea, not the time of the sentencing; if the State doesn't have proof of weight by the time of the plea, you're home free.
The first sign of trouble emerged just after noon yesterday, with a terse email from one of my numberless horde of loyal readers:
Did you just whiff on the effect of a NC plea?
Long story short, oh, yes, I did. Majorly. A no contest plea admits the allegations of the indictment. If the indictment alleges that you possessed more than 100 grams of cocaine, the State doesn't have to prove weight, it doesn't have to prove purity, it doesn't have to prove squat. You've just admitted that you possessed more than 100 grams of cocaine.
I'm tempted to blame it on the drugs I'd taken and the noise in the strip club when I wrote the post, but that would require you, faithful reader, to wholly suspend belief and imagine that I lead a far more exciting life than the facts of my baneful existence would support. I did attend a party for a friend last night, and my parting words were, "I have to go home and feed my cats, and yes, I know that sounds like a cry for help."
So anyway, I made a mistake, and a biggie. On the plus side, it's the only mistake I've made. I thought I did one other time, but I was wrong.
As a result of the blog and some other stuff, I've pretty much become the Answer Grape for criminal lawyers up here. It's rare that I'll go over to the Justice Center and not have somebody ask me a question like, "I had a client plead out to an MDO for cocaine a couple years back. Does Gonzalez affect that?" or "We're up for a sentencing on a mandatory bindover. Does Aalim mean we have to go back to juvy right away, or can we do the sentencing and then just send it back for the amenability hearing?" or "Does Creech mean I can keep out my client's prior DV?" or "Gee, Russ, didn't they have a suit in your size?" It's cool being regarded as an actual authority. At least, people now know that I'm not just another pretty face.
The Ohio Supreme Court came down with some major decisions at the end of last month. Although I wrote about each of them, I want to take a more extensive look. We'll start with State v. Gonzalez.
For those of you who bought "Garland's My Guy" t-shirts as a way of showing support for beleaguered Supreme Court nominee Merrick Garland, you can put them away. Garland's nomination expired last Tuesday, the final day of the 114th Congress. Attention has now turned to the possible picks by Twitterer-in-Chief Donald Trump, with William Pryor, currently a judge on the 11th Circuit, gaining most prominent mention. During Clarence Thomas' confirmation hearings, he professed never to have even discussed Roe v. Wade, which, if true, made him the only person in the country who hadn't done so. Pryor will not be able to so deftly avoid that question: he's labeled Roe "the worst abomination in the history of constitutional law," and said the he "will never forget January 22, 1973, the day seven members of our highest court ripped up the Constitution."
Perhaps in recovery mode from witnessing the debacle of Ohio State's performance in the Fiesta Bowl or the debacle Mariah Carey's performance on New Year's Eve, the 8th can muster the energy to produce only four criminal decisions last week. Three of them involve sentencing issues. Not surprising; when 95% of cases are resolved by pleas, you're stuck with either plea or sentencing issues, usually the latter.
First up is State v. Kibble. Here's a helpful hint when reading appellate decisions. When the first paragraph tells you that the only relief granted the defendant is a remand "for a nunc pro tunc entry reflecting that Count 65 merged at sentencing with Count 64," it's a good bet that the major damage was inflicted in Counts 1 through 63.
Two weeks ago, in State v. Walker, which I discussed yesterday, the Supreme Court clarified what proof was necessary to establish prior calculation and design in an aggravated murder case. If you're representing someone charged with aggravated murder under the prior calc theory, you'll definitely want to look at that for possible Rule 29 arguments, or modifications to your jury instructions. And if you're handling the appeal of someone who was convicted of aggravated murder on a prior calc theory, you'll want to incorporate Walker into your argument.
But let's say you're a defendant who was convicted of aggravated murder in 2012, and you look at Walker and say, "That's virtually the same fact pattern as happened in my case!" What can you do about it?
Nothing. For the most part, decisions of the Supreme Court (or of a court of appeals in that court's jurisdiction), apply only to cases pending for trial or on direct appeal.
Another might have been provided by last summer's decision in State v. Thomas.
In the past couple years, the 8th District has reversed six aggravated murder convictions, reducing them to murder the evidence of prior calculation and design was insufficient.
The prosecutors' office here went nuts. They took every single case to the Supreme Court, the Memorandums in Support of Jurisdiction becoming increasingly strident as they cast the 8th District as having gone rogue.
Not that the State's caterwauling was without merit. One of the six cases was mine. My explanation for my victory is this: There are 221 possible combinations of judges for a panel in the 8th. I lose that case in 185.
Things finally came to a head: the Supreme Court accepted two cases, Shabazz and Walker.
Here's something that I did not know. The Cuyahoga County Department of Family and Childrens Services has social workers assigned to the county jail. One of their primary duties is to interview alleged perpetrators in the jail. After that, by law, they're required to submit a written report of their investigation, including the statements made by the defendant, to law enforcement.
I learn of this in State v. Jackson. The majority finds that the social worker is an agent of the state, and thus has the obligation to give Miranda warnings. The dissent vigorously disputes this, but where you have a formalized statutory arrangement whereby the social worker takes a statement from a defendant and gives it to the police, all without advising his attorney, and without giving the defendant his Miranda warnings, I'm having a hard time seeing how that's not a violation of the defendant's Fifth and Sixth Amendment rights.
One of the benefits of doing a blog like this is that it gives you a better appreciation of trends. The Ohio Supreme Court has long had a reputation among the criminal bar of being defendant-unfriendly. Not surprising, given that since the early part of this millennium the court's membership has included six Republicans, a group against whom the "soft-on-crime" accusation is not customarily leveled.
But there has been a trend away from that this year, especially in juvenile cases. Prior to its decisions a couple week back in State v. Aalim and State v. Moore, which we'll talk about on Thursday, the court dealt with the question of whether the allied offense analysis applied to juvenile adjudications (In re A.G.), whether juvenile adjudications could be used to elevate the degree of offense or penalty for adult cases (State v. Hand; discussed here), and whether the statutory presumption that a recorded interrogation is voluntary applied to juveniles (State v. Barker). Every one, including Aalim and Moore, turned out in favor of the juveniles.
In fact, especially with the recent spate of decisions, one would be forgiven for believing that the justices had suddenly envisioned themselves as the second coming of the Warren Court. There's a defendant-friendly decision on the element of prior calculation and design in aggravated murder cases in State v. Walker, which we'll discuss on Wednesday. And then... well, let's take a look at three big cases.
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