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February 2017 Archives

What's Up in the 8th

Sometimes, a case teaches a bunch of lessons, and sometimes, it teaches only one.  The latter is the case in State v. WittenbergWittenburg gets caught with four keys of marijuana and one of hashish.  He's charged with drug trafficking, with juvenile, schoolyard, and firearm specs.  His lawyer works miracles, and Wittenburg pleads to a single third degree felony, and walks out of the courtroom with a year's probation.

But sometimes, part of your job is telling the judge what to say.  There was a presumption of imprisonment for the offense, and that means the judge had to make a finding that there's a lesser risk of recidivism and that the crime wasn't as serious as those crimes usually are.  The judge said nothing about either, so back it comes.

I'm guessing that the outcome is the same, and that the judge will treat the opinion as do judges who get reversed for not making the necessary findings for consecutive sentences:  "Oh, this is what I have to say."

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Case Update

A psychologist told a Texas jury during the penalty phase of a death penalty case that Duane Buck was more likely to commit violent acts in the future, because he was black.  The jury voted to kill Buck.

By the way, Buck's lawyer was the one who called the psychologist.

If it takes you more than ten seconds to say, "We should not kill a man when something like that happens" -- or, loosely translated, "Jesus, that's whack" -- you probably don't qualify to be a Supreme Court justice.

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The fourth lawyer

There are difficult clients, and there are difficult clients.  Here's what you need to know about Daryl Whittaker, and no, of course it's not his real name:

    • I was the fourth lawyer on his rape case, and the fifth on his felonious assault case.

That's all you need to know.  

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What's Up in the 8th

It's pretty embarrassing when you show up for the first day of trial in your rape case, and you get arrested for another rape you allegedly committed after this one.

That began Christian Price's journey through the justice system, and that journey ended last week with the 8th District's decision in State v. Price, or, as it will be forevermore cited, Price IV. 

But what a ride.

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The trial tax debate

Justin Noble lucked out.  Found guilty of sixteen counts of theft and sundry other offenses, the judge told him at sentencing that he'd "wasted this jury's time" with a trial because he "had no defense whatsoever."  "This isn't a case where you had some legitimate defense," the judge said.  "You just took a shot and hoped that the jury was dumb enough to buy some of these nonsensical arguments."  The 12th District said that was sufficient to create the appearance that the judge was imposing a "trial tax," that is, increasing Noble's sentence because he didn't plead, and remanded the case for a new sentencing.

Noble was lucky because getting punished for going to trial happens All.  The.  Time.  And unless the judge is indiscrete enough to say something about it, it'll get a pass.  Last year up here, a defendant was offered a sentence of five years if he pled to a string of burglaries.  His co-defendant, the mastermind of the operation, pled and got nine years.  The defendant insisted on trial, got convicted, and was sentenced to 48 years.  Another defendant was offered a plea with a recommended sentence of between seven and eleven years.  The judge told him that he'd consider judicial release after five and half.  The defendant went to trial, lost, and the judge shipped him for 35 years.

Last week, the Supreme Court heard arguments on whether Malik Rahab is going to get lucky.

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What's Up in the 8th

In the new world of alternative facts, I'm left wishing that the 8th would issue some alternative decisions.  But we gots what we gots, so let's dig into it.

State v. King wends its way toward a conclusion.  As those of you who saw the episode of 48 Hours, let alone the numerous documentaries, covering the case know, King pled guilty to drug possession, which at the time required a mandatory driver's license suspension.  A few days later, her attorney filed a motion for limited driving privileges, and the court granted them, not only for work and medical appointments, but for "grocery shopping and paying bills."

The State appealed this extreme example of judicial activism.  I wound up with the appeal, and pointed out that the judge had never issued an order suspending the license in the first place.  The panel initially reversed, relying on cases which have held that failure to impose the mandatory suspension renders that portion of the sentence void, and remanded the case for resentencing on that point.  A few weeks later, it sua sponte vacated that order, but after pondering it further, issued a decision to the same effect last week.

The law's changed since then, though; the suspension is now discretionary.  We'll have to wait a while to see how this all plays out:  under the new 8th District policy, the court keeps the file until the 45 days time for appeal to the Supreme Court has expired, and only then will return it to the common pleas court.

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Case Update

Punxsatawney Phil last emerged last week, and so did the topic of the Federal judiciary's independence, the latter a result of our Supreme Leader's latest Twitter barrage about the "so-called" judges striking down his executive order on immigration.  Even Trump's Supreme Court nominee Neil Gorsuch confessed to several senators that he found the attacks "dispiriting" and "demoralizing," which the Trump palace regulars disputed, only to have the exchange confirmed by White House aides who were present. 

Still, while a majority of the public edges closer to the belief that the country should get a Mulligan for last November's election, it's proper to note that many of the same people caterwauling about Trump's tweets had no problem with Obama using his 2010 State of the Union speech to lambaste the Supreme Court over its Citizens United decision, while the justices sat there in silence.  Yes, judges should be independent, but it's not like Trump can apprenticize the judges and tell them, "You're fired!"

The only thing happening in SCOTUS this week is Friday's conference, where the justices will decide which certiorari petitions have been naughty and which have been nice; the last conference yielded no grants, so don't get your hopes up.  Nothing going on in the Ohio Supreme Court, either, except that we'll have a bevy of oral arguments to discuss later this week.  So let's head over to the courts of appeals.  

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What's Up in the 8th

Your client decides he wants to dispense with your services and try the case himself.  Not only does he have to sign a waiver of his right to counsel, the judge has to engage in an extended colloquy with him to ensure that his waiver of this key constitutional right is knowing, intelligent, and voluntary:  inquiring as to any training or knowledge that he has in the law, informing him of the nature of the charges against him and the potential penalties, and advising him of the perils of self-representation.

Your client decides he wants to dispense with a jury and try the case to the judge.  Not only does he have to sign a waiver of his right to a jury trial, the judge has to engage in an extended colloquy to ensure that his waiver of this key constitutional right is knowing, intelligent, and voluntary:  inquiring as to his previous experience in criminal cases, and informing him that while a jury verdict must be unanimous, if he waives a jury the judge will be the sole determiner of his guilt or innocence.

The colloquy requires for a waiver of counsel is called a Faretta hearing.  The colloquy required for a jury waiver isn't called anything, because it doesn't exist.  The "colloquy" necessary for a jury waiver requires the judge to do no more than hold up the waiver and ask, "Is this your signature?"

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Case Update

This week's news on SCOTUS centered on Neil Gorsuch's nomination to take Scalia's seat on the High Court.  In keeping with this Blog's policy not to venture into politics, except to make a snarky comment every now and then, we'll not brook any discussion about whether opposition to his nomination has any chance of success.  SCOTUSblog has helpfully provided us with a list of Gorsuch's extra-judicial writing and speeches.  I would note that no fewer than five concern the subject of assisted suicide.  In keeping with this Blog's policy, I might venture that this will become a topic of growing importance in the coming months and years of the Trump presidency.

One of the features of SCOTUSblog is the Petition of the Day; no doubt, they stole the idea from this Blog's former feature, the Bullshit Traffic Stop of the Month™.  The nominee for the top petition last Tuesday was Ohio v. Hand.  The unnumbered legions of my regular readers will remember that last year, in State v. Hand, the Ohio Supreme Court held that RC 2901.08 was unconstitutional, in that it permitted a juvenile adjudication to increase the penalty or level of offense for an adult crime.  The decision was based on the idea that since a juvenile has no right to a trial by jury in a delinquency proceeding, the adjudication was based on judicial fact-finding, which is barred by SCOTUS' Ring/Apprendi/Blakely trilogy.  Sure enough, the issue presented in the petition is

Whether the absence of the right to trial by jury in juvenile delinquency proceedings results in a juvenile adjudication falling outside the prior-conviction exception set out in Apprendi v. New Jersey.

Stay tuned.  

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A tale of two cases

Demetrius Jones was charged with a rape that had occurred twenty years earlier.  Although the victim identified him by name and address, the police did zero investigation, and closed out the file a week later.  The victim had said that Jones' mother was in the apartment where the incident occurred.  By the time he was indicted, his mother had died.

Oscar Dickerson was charged with a rape that had occurred twenty years earlier.  According to the victim, a car with Dickerson and two other males approached her while she was walking home.  She got in the car, but the driver took her to a hotel, and dropped her off with Dickerson and the other man.  They took her to one of the rooms and raped her several times.  The police didn't believe her story, and dropped the investigation.  By the time Dickerson was indicted, the driver of the car had died.

In both cases, the 8th District found prejudicial pre-indictment delay.  Both cases went to the Supreme Court.  The court clarified the standard for determining actual prejudice in Jones, and sent it back for reconsideration in light of that standard.  Although it originally declined jurisdiction in Dickerson, it later vacated that decision and sent that one back, too, for reconsideration in light of Jones.

Two weeks ago, the 8th issued new decisions in both.  Dickerson won; Jones lost.

That's not the only difference.

Continue reading "A tale of two cases" »

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Recent Entries

  • November 15, 2017
    What's Up in the 8th
    Plea withdrawals (again), sexual predator hearings, and an appellate law question
  • November 7, 2017
    What's Up in the 8th
    Don't listen to prosecutors about the law, good new/bad news jokes on appeal, and the Byzantine course of a death penalty case
  • October 24, 2017
    What's Up in the 8th
    Trying to change the past
  • October 16, 2017
    En banc on sentencing
    The 8th District takes a look at what State v. Marcum means
  • October 13, 2017
    Friday Roundup
    Musings about the death penalty and indigent defense
  • October 11, 2017
    Case Update
    SCOTUS starts its new term, and the Ohio Supreme Court hands down two decisions
  • October 10, 2017
    What's Up in the 8th
    Collaboration by inmates, fun in Juvenile Court, the limits of Creech, and more
  • October 5, 2017
    State v. Thomas
    The Ohio Supreme Court reverses a death penalty conviction
  • October 4, 2017
    Russ' Excellent Adventure
    A juror doesn't like me. Boo-hoo.
  • October 3, 2017
    What's Up in the 8th
    What not to argue on appeal, waiving counsel, the perils of being a juvenile, and expert witnesses