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What's Up in the 8th

One of the questions clients always ask me after oral arguments - besides, "Do you think we won?" - is "How long do you think it's going to take for the court to make a ruling?"  I tell them that normally it's going to take about two or three months.  I've had them take as much as eleven months and as little as three weeks.  Sometimes longer.  There was a Supreme Court decision last year which came down almost exactly two years after oral argument.  But two to three months is the middle of the Bell Curve.

I'd never dream of telling my client, "Oh, probably sometime tomorrow."

That's exactly what happened last week in Cleveland v. Tarver.

Tarver appealed on March 1 - of this year.  The court ordered that the transcript be filed by March 14, and gave each side seven days to file a brief.  On the day after the filing of the State's brief, the court held oral argument, and issued the decision the next day. 

Why the expedited resolution?  Tarver was charged with stealing a pack of cigarettes from a gas station.  Tarver apparently had some issues of the mental kind, and the court ordered an evaluation of her competency to stand trial.  Despite the low bar for that - one commentator has suggested that the standard is the ability to distinguish the judge from a cabbage - Tarver failed to clear it. 

So the judge shipped her to the local state-run Rubber Ramada to restore her to competency.  The place asked for permission to "forcibly medicate" Tarver, and the court granted it.

Let me repeat that.  The place asked for permission to "forcibly medicate" Tarver, and the court granted it.

Not that there's anything wrong with that, as they said on Seinfeld ... at least in some circumstances.  The Supreme Court of these very United States held in Sell v. US that "the Constitution permits the Government involuntarily to administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial."

Should I have issued a spoiler alert on that "serious criminal charges"?  The Tarver panel spends several pages weighing the competing equities in determining whether Tarver's heinous offense qualifies, but the essence of its decision is this:  Strapping someone to a gurney and injecting them with psychotropic medication for stealing a pack of cigarettes might pass constitutional muster in Pyongyang, but it sure as hell doesn't fly in America.

The court makes an unforced error in State v. Smith.  Smith pled guilty to aggravated murder - he was seventeen at the time of the killing - in 1988, claims that trial judge agreed not to oppose parole.  Instead, the court sent a letter to the parole board before Smith's latest hearing, stating that "the court imposed sentence after due consideration of all relevant factors and opposes any reduction or modification of sentence." 

There's an easy way to dispose of Smith's claim of the judge's promise that he wouldn't oppose parole:  it's based solely on his affidavit.   The original judge is dead (the successor judge sent the letter), so are the defense attorneys, the assistant prosecutor doesn't remember squat about it, and the transcript's long gone. 

The court does that, finding the affidavit "self-serving."  Plus, the Parole Board mentioned nothing about the judge's letter when it denied parole, raising a serious problem of showing prejudice.

The opinion should have stopped there, but instead goes on to say that even if judge did promise not to oppose parole, the "journal entry did not recommend a sentence of life without parole," and "the trial court was within its authority to make a recommendation regarding Smith's parole."

It turns out that this is a standard letter sent by most judges here when they get notified of a parole board hearing.  We'll skip over the question of whether parole constitutes a "reduction or modification of sentence" because it clearly does not.  If a defendant's sentenced to life with a possibility of parole after 20 years, and the parole board kicks him out at the first hearing - hey, I can dream - that's exactly what his sentence was.

But the rest of it doesn't hold up.  Yes, the letter didn't recommend a sentence of life without parole, but it sure constituted "opposing" parole, which was the precise argument advanced by Smith.  Let's put it this way:  if a transcript of the hearing did exist, and it showed the judge promising not to oppose parole, I can't think of any way you square that with what the successor judge did.

One final case, a civil one, but worth mentioning.  In 2008, a woman flagged down a police car and claimed that Anthony Sowell raped her.  The detective closed the case after spending about as much time investigating it as I do in making up my weekly grocery list. 

A year later, the police investigated another rape involving Sowell, searched his house, and found bodies of eleven women. 


The plaintiffs in Moore v. Cleveland are family members of the victims killed after police missed their chance to arrest Sowell in 2008.  They sued the City, the City prosecutor, and four of the police officers who were involved with Sowell's release that year.

The court affirms summary judgment for all but one detective, Georgia Hussein.  There's lots of talk about sovereign immunity and the public duty doctrine, and other stuff of that ilk, and while I'm not sure I'm smart enough to figure all that stuff out, I'm morally certain that I have no interest in doing so.  This is just another story about the craptastic way the Cleveland Police Department treated minority rape victims for decades.

But the thing I do remember about the case is that after the bodies turned up, the Police Department sent out some flunky to explain to the press why they didn't arrest Sowell in 2008, even after they'd found blood on the walls of his house.  The spokesman acknowledged that the blood was discovered, but explained that there was no way the police could determine whose blood it was.

And I'm sure you join with me in hoping that someday in the far distant future science comes up with a way to figure that out.


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