March 2017 Archives
What's a poor boy to do? Say you're a defendant who wants to withdraw his plea. Your lawyer won't do it, and there's plenty of case law which says that the lawyer is under no obligation to file such a motion if he feels it's not in your best interests. But if you file it pro se, there's plenty of case law which says that the trial court can ignore that because it's hybrid representation.
I think both prongs of that are wrong; a lawyer can't file a motion he deems frivolous, but "I don't think it's a good idea" or "I don't think we'll win" does not equal "frivolous." And the main case on hybrid representation - the defendant acting pro se while still having his lawyer represent him - dealt with the trial situation, not motions. In fact, in two early cases on the subject, the 8th held that the concept didn't apply to motions.
That may change after State v. Ward.
So you're sitting there at your confirmation hearing to be Supreme Court justice, and you get word that the Supreme Court just unanimously reversed one of your opinions. Awkward! That was Neil Gorsuch's fate last Wednesday. His folksy, albeit evasive, demeanor won him a few friends, although Democrats insist they'll filibuster his nomination, with Republicans responding that they'll invoke the "nuclear option" and eliminate the filibuster for Supreme Court nominations.
Filibuster isn't the end of it. The only justice to fail to reach the 60-vote threshold in the past quarter century is Sam Alito, and the Senate voted for cloture (ending debate) by a 72-25 margin, with such Democratic stalwarts as Hillary Clinton, Chuck Schumer, and Barack Obama voting with the majority. Don't be surprised if enough Democrats vote for cloture, then vote against Gorsuch just so they can tell the Sanders wing of their party that they did.
On the other hand, Scalia was confirmed unanimously, and Ruth Bader Ginsburg by a 93-3 vote, and that's not going to happen again. And here's today's factoid: of the nine nominations FDR made to the Supreme Court, seven of them were approved by voice vote.
I'm taking the week off. Have a major brief due on Thursday, plus a trial in Federal court starting next Monday. Plus, I'm pretty sure that Obama wiretapped me, too, so I'm working on getting to the bottom of that.
See you next week.
The 8th District cases come out every Thursday. By about ten o'clock in the morning, the court will have posted the "weekly decision list" on its web site. It will give a summary of the case, usually in a sentence or two. By early afternoon, the actual opinions will have been sent down to Columbus, where they will be posted on the Supreme Court's web site. A day or so later, they'll appear in Lexis.
Last Thursday's weekly decision list contained no fewer than a dozen criminal decisions. Some of them, based on the summaries, looked promising. So when I did my Weekly 8th District Roundup for the listservs for the state and local bar associations, plus a fair number of judges, and pulled up the Supreme Court's listing, my heart was resolute with the task to come, but my mind was eager with the anticipation of learning exactly why Jacob Flanagan's conviction and sentence were vacated because the trial court didn't conduct a competency hearing.
It wasn't on the Supreme Court's website. None of the decisions from last Thursday are on there. Nor are they on Lexis. They've disappeared into the ether.
Damon Rippo was the subject a major bribery investigation by the Feds and the State prosecutor in Clark County, Nevada.
Wait! It was Rippo's trial judge who was the subject of the investigation. Rippo, on trial in a death penalty case, moved for the judge to recuse himself. The judge told him that he did not know whether state law enforcement was involved, and the prosecutor confirmed that it was not. Both statements were untrue.
At this point, we'll take a brief time-out to raise the question that's probably occurred to you as well: What the hell is a judge who everybody knows is the target of a Federal bribery investigation doing presiding over a capital case???
It gets better: one of the people the judge was accused of fixing cases for was a witness against Rippo.
One reason Federal sentences are so long is the Armed Career Criminal Act. If you commit a crime with a gun, and you have two prior convictions for drug or violent offenses, you get an additional fifteen years in prison.
So what's a "violent offense"? The statute gives several examples, such as robbery, but then concludes with what became known as the "residual clause": a catchall definition that a violent offense is one which "involves conduct that presents a serious potential risk of physical injury to another." Two years ago, the Supreme Court decided in Johnson v. United States that this was too vague, and struck it down.
Another reason Federal sentences are so long is the Career Offender designation under the Sentencing Guidelines. We'll skip the math, but I recently had a case where my client was a career offender. Without that, he faced a sentence of 77 to 96 months; the career offender designation boosted that to 188 to 235 months.
The definition of what constitutes a career offender is the same as for the ACCA. Last year, the 6th Circuit struck down the residual clause of the career offender guidelines, for the same reason the Court killed it in Johnson.
So last Wednesday, the Supreme Court held in Beckles v. United States that there's nothing wrong with the definition in the Career Offender designation, because the guidelines are now advisory, and a sentencing factor which is discretionary with the judge isn't subject to void for vagueness analysis. So a lot of Federal sentences are going to stay long.
On December 23, 2016, the Supreme Court handed down its decision in State v. Gonzalez. Gonzalez had been charged with cocaine trafficking, and the issue was whether the State had to show the pure amount of cocaine -- sans filler - to get more than a fifth degree felony conviction. The court, by a 4-3 vote, held that the State did have to prove the pure weight. Whether that was right or wrong doesn't really matter for purposes of our discussion.
Justice Lanzinger wrote the plurality opinion, joined by Pfeifer and O'Neal. Kennedy concurred in judgment. O'Connor dissented in an opinion joined by O'Donnell and French.
On January 3, the State filed a motion for reconsideration.
On Monday, the court granted the motion for reconsideration, and reversed itself, by a five to three vote.
So who changed their minds? Nobody. The difference was that Lanzinger and Pfeifer, two members of the original majority, were no longer on the court. Their age had forced them into retirement, and they were replaced by Justices Fischer and DeWine. And both of them voted with the State.
Sometimes it's bar shooting week in the 8th. Sometimes it's consecutive sentencing week. Apparently, last week was Beat Up Your Girlfriend Week.
It did not go well for defendants.
Remember the "knock and announce" rule? It was the common law rule that a police officer had to knock and announce his intentions before entering a home, even with a search warrant. Eleven years ago, in Hudson v. Michigan, Scalia wrote an opinion holding that while the rule was constitutionally required, the exclusionary rule would no longer apply to it.
One of the big questions facing the Ohio Supreme Court is the application of the Ohio Constitution. In a number of decisions, most recently State v. Mole (discussed here), the court has said that the Ohio Constitution is a document of independent force. In a number of decisions, most recently (just a month later) in State v. Anderson (discussed here), the court has held that the provisions of the Ohio Constitution regarding "criminal rights" are co-extensive with the U.S. Constitution.
What ties those two paragraphs together is State v. Bembry, which was argued in the Supreme Court last week.
Today, the Ohio Supreme Court granted by a 4-3 vote the motion to reconsider its decision in State v. Gonzalez (discussed here.) That was a decision last December which held that in order for a defendant to be convicted of more than a fifth degree felony charge of possessing or trafficking in cocaine, the State had to prove the pure amount of cocaine. By a 5-2 vote, the court changed its mind. Purity is no longer required.
I'll have more on that later in the week. Tomorrow I'll have the Case Update, and on Wednesday we'll take a look at the 8th District's cases.
Benjamin Oles was stopped for a marked lanes violation. When the officer approached the car, he noticed an odor of alcohol. In an effort to determine the source, he put Oles in the front seat of the cruiser and asked him some questions. First question: "Did you have anything to drink tonight?"
Answer: "I had four mixed drinks at a wedding."
That brings us to the hearing on the motion to suppress in Oles' DUI case, where the trial court decides that the officer should've Mirandized Oles before asking him any questions. The 8th District affirms on that basis.
And yesterday, the Ohio Supreme Court convened oral argument to decide whether that was right.
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