What's Up in the 8th
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.
Unlike the Federal rules, Ohio's rules don't prohibit a judge from becoming involved in plea bargaining, but there's a line that can't be crossed. The seminal case on this is the Supreme Court's 1980 decision in State v. Byrd, which really doesn't provide much guidance, because whatever that line is, the judge there crossed it: he not only coaxed the prosecutor into giving Byrd a better deal, he brought Byrd into his chambers to tell him what a great deal it was, and then brought Byrd's family in to put additional pressure on him.
The panel here saves White from himself, holding that the trial court "merely referenced a concrete example of the potential penalties White faced if unsuccessful at trial." And so White avoids inclusion as the latest chapter in the ever-expanding opus, He Should've Taken the Deal.
The defendant in State v. Jones might have a tad of an ego problem, as evidenced by the fact that he has his own picture on the home screen of his cellphone. While this might normally be addressed in therapy, Jones' situation is a bit more dire: the cellphone was found in a home that he burglarized.
No one was present at the time, but conviction of a second-degree burglary charge only requires that someone is likely to be present. The law in the 8th on this is actually quite favorable to defendants, holding that if the home is broken into while the owner is working, the State has to show that the owner, or some other person, was likely to show up, for lunch or on a break or something similar. The homeowner here was actually over an hour's drive away, but the State elicits that he "sometimes" works at home. Not good enough, says the panel, and knocks the conviction down to a third-degree felony.
The 8th District used to be the most Fourth-Amendment-friendly in the State, but it's been several years since I can remember them handing down a strong pro-defendant decision. State v. Robinson isn't one, although it's more confusing than confounding. The Cleveland gang impact unit is traveling around the city, impacting gangs, when they come across a group of people (read: black males) congregated in the street.
This is sufficient to spur the cops into action: with lights and sirens on, they turn onto the street and, in police parlance, exit their cars, with guns drawn but pointed to the ground. They intend only to break up the group, and I'm sure we all remember from our youth when three or four of us would be standing around, only to have the police pull up and tell us at gunpoint to be on our way.
In any event, while this is going on, one detective spots Robinson sitting on a porch. The detective sees Robinson stand up, and despite the darkness, sees him make a "furtive movement" and place a "dark object" on an adjacent table before walking into the house. (Readers of court opinions might easily come to the conclusion that it is impossible for a black male, at least in the presence of the police, to make a movement which is not furtive.)
The object turns out to be a gun, and the facts are somewhat fuzzy after that. The police enter the house, but it's not clear whether it's with the consent of two people who show up during this time and, according to the police, tell them that it's their house and let them in. In any event, the police arrest Robinson, and he's ultimately convicted of weapons under disability.
I've waxed a bit sarcastic here, and I'm not sure that it's warranted. I just finished a brief on an appeal from an aggravated murder conviction. Several members of the J-Park gang decided to avenge some slight inflicted upon them by the ATM Jackboys, and did so by going into the latter's territory and shooting at several supposed members. A 20-year-old girl, who had no more to do with either of the gangs than I do, took a bullet in the back of the head as she was walking to the store.
I talked to the prosecutor who'd handled the trial, and he told me he preferred inner-city jurors for cases like this. I can understand that. I don't remember getting rousted by the police when I was growing up, but then again, I don't remember seeing drug dealers on the corners as I walked to school, or hearing gunshots just about every night, or having my friends gunned down just because they happened to be in the wrong place at the wrong time.
I can afford a healthy dose of liberalism in my views on the balancing of individual rights against the need for law and order. There are a lot of people who can't.