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What's Up in the 8th

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.

The State fares even worse in State v. G.D.  G.D. had been charged with abuse of the OHLEG computer system, but the attorney general had written a letter to the prosecution stating that the defendant's use was permissible, so it moved to dismiss the indictment.  G.D. sought to seal the records of the arrest, and the trial court, incorrectly believing that it could not do so if the indictment was dismissed without prejudice, reopened the case and dismissed it with prejudice, then granted the request to seal.

The State had responded to the application to seal by stating it was not opposed and was waiving the hearing in the matter.  When the trial court announced it was dismissing the indictment with prejudice, because the letter from the AG indicated G.D. hadn't committed any crime, the prosecutor said that the State was "not going to appeal anything," but objected to the dismissal of the indictment with prejudice as a matter of "policy" because "we just don't do that."

The State appeals nonetheless, and runs into a buzzsaw.  The panel not only rejects the State's argument, but finds the appeal frivolous, noting that G.D. shouldn't have had to defend an appeal "so that the state could challenge -- as a matter of 'office policy' -- the trial court's authority to dismiss a case with prejudice, over the state's objection, that the state should have never prosecuted in the first place."  That might lead to a new office policy, don't you think?

The thought that the 8th might be taking more seriously the imposition of sanctions for frivolous appeals (none was awarded here because the defense didn't file an affidavit supporting it) gives me pause, though.  I've got an appeal I'm writing now, or would be, except I can't do more than a paragraph without breaking into giggles.  Let's hope my wallet isn't lightened when my opus is finally complete.

Courts love tests.  There's the three-factor test for determining prior calculation and design, the four-factor (or maybe nine-factor, depending upon the court) test for determining whether a judge abused his discretion in denying a motion to withdraw a plea, the eleven-factor test for determining whether there's a basis for administering field sobriety tests ... you get the idea.

Well, there's also the three-part test for determining whether probation conditions are so overly broad that they unnecessarily infringe upon the probationer's liberty, as the defendant in State v. Dorsey learns.  He's convicted of assault, and the judge places him on probation, but imposes numerous conditions, including staying away from any establishment where alcohol is sold or served, and having no contact with anyone with a criminal record.

And so we have the three-part test: 

whether the condition (1) is reasonably related to rehabilitating the offender, (2) has some relationship to the crime of which the offender was convicted, and (3) relates to conduct which is criminal or reasonably related to future criminality and serves the statutory ends of probation.

Non-use of alcohol is a frequent condition, because alcohol is a frequent factor in crime.  (Although I'm not sure how keeping a guy from going into a 7-11 is going to make him a better person, but oh well.)  The problem is with the latter requirement.  First, "Do you have a criminal record?" is not the conversational ice-breaker that will put you on everybody's list of must-have party guests.  Second, the judge's order would make Dorsey a violator simply from "associating even with individuals with prior misdemeanor convictions."  Oh, the humanity!  And so Dorsey's social circle remains intact, so long as they don't go into a convenient store. 

I've frequently noted that there are some people who go through life making one bad decision after another, and that criminal defendants are vastly overrepresented in this group.  Further proof of it comes in State v. Lee.  Lee has a parting shot for the judge who just gave him four years on a burglary, telling her as he's being led out of the courtroom, "You gave me the same time you'd give a rapist.  That's four years.  Like for what?"  She has a parting shot for him:  she brings him back in, and tacks on another year on the sentence.  And yes, since the sentence wasn't journalized, she can do that.

Lest one believe that all bad decisions are the result of impulse, rather than studied reflection, we bring you State v. Muhammed.  Muhammed is given two consecutive 35-to-life sentences for raping two young boys 20 years ago.  He argues manifest weight, a task greatly complicated by the fact that DNA tests showed there was about a 1 in 40 gazillion quintillion megadillion chances that he's not the guy.  He also makes a sentencing argument, and that task is greatly complicated by his decision to try to download child pornography onto the computer in the county jail while awaiting trial.  

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