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What's Up in the 8th

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.

One appeal arguably devoid of merit is State v. Brown.  Brown claims first that his plea was coerced because the State dismissed an earlier indictment and then re-indicted him on more serious charges.  That was probably the first time something like that happened.  That day.  Brown also claims the four-month gap between the dismissal of the first indictment and the issuance of the second constituted prejudicial pre-indictment delay, without even venturing a suggestion as to what prejudice might have inured from the delay.  Then there's the obligatory shot at defense counsel, who apparently was ineffective for advising the client to agree to plead to one count and an eleven-year sentence, in return for dismissing four other rape counts, one of which involved a life sentence.  Then there's the argument that the judge shouldn't have imposed the maximum sentence, despite the defendant agreeing to it; the agreement makes the sentence unreviewable.

The attorney in Parma Heights v. Owca has lots of arguments; sixteen assignments of error arising from a misdemeanor drunk driving trial.  The court finds merit in only one, that the judge should have merged the two convictions, rather than imposing a sentence on both and running them concurrently. 

But there should have been more.   The State presented expert testimony, without providing the defense a report, as required by CrimR 16(K).  The majority shrugs this off as harmless error.  The test for that is whether the evidence could have contributed to the conviction, and I'm struggling to see how when the state goes to the trouble of putting on expert testimony, it winds up being inconsequential.

Another problem is that, as the dissent demonstrates, the trial judge apparently used the defense attorney as a punching bag throughout trial, frequently berating him, and ultimately accusing him of lying to the jury -- in front of the jury.  The majority rejects this as well, holding, as too many courts have, that the "exclusive means" of raising bias allegations against a judge is through an affidavit of disqualification.

A cute trick, that, since the affidavit has to be filed seven days before trial.  The dissent correctly notes, as not enough courts have, that while an affidavit of disqualification is the sole means of removing a judge from case, it has nothing to do with reviewing a claim of the judge's bias, at least during trial.

Conflict of interest is the issue in State v. Ashley.  The kind of conflict presented in the 8th's decision last September in State v. Haugabrook (discussed here), where the defense attorney represented both defendants?  No, this is one where during the first couple of days of trial it was learned that one of the defense attorneys, while a magistrate in a suburban court, took a plea ten years earlier from his now client.  To add a level of complication, Ashley had pled to domestic violence in the municipal court case, as well as in this one.  (The charge in the latter case was the least of his worries.  In the intervening years, he'd honed his craft, killing the victim in this case.)

The important thing to remember about a conflict of interest is that it can always be waived.  How it is waived is the key.  Ashley relies on Haugabrook, but the distinctions between the two are critical.  In Haugabrook, the issue first appeared during the plea.  The judge allowed the two defendants to talk in private with their attorney, and then ten minutes later accepted their mumbled affirmative responses to her question of whether they waived the conflict.

Here, where the conflict is far less consequential - neither Ashley nor his attorney can remember the prior encounter - the court explained the potential conflict, asked if Ashley objected to the attorney's continued representation, and offered to continue the trial and provide him a new attorney if he did.  When Ashley indicated he didn't, the judge had him sign a written waiver.

Memo to judges:  especially when you're dealing with constitutional rights, the better a record you make, the better.

Two years ago, in State v. V.M.D., the 8th reversed the denial of an application to seal a conviction.  The conviction in issue was attempted robbery by force, a fourth degree felony.  Robbery is a crime of violence.  (And yes, Virginia, the statutory definition of a crime of violence includes an attempt to commit that crime.)  The statutes do not permit the expungement of a crime of violence.  Pretty simple, but the 8th held that the liberal purpose of the expungement statutes permitted a judge to look at the facts of the case to see if it was really a violent offense.

That's pretty much as bad as it sounds, and it took a few nanoseconds for the Supreme Court to unanimously reverse.  What the statute says, the courts do.

So here comes poor E.A., who's trying to seal his twenty-year-old conviction for -- gulp -- attempted robbery.  He finds a sympathetic judge, who grants the motion in reliance on V.M.D.  Not the Supreme Court decision; the 8th District one, before it got reversed.  Well, the 8th can certainly take a hint; it reverses, in reliance on V.M.D.  And definitely not the 8th District one.

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