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What's Up in the 8th

Every now and then you read about a criminal who got caught because he left something at the scene of the crime -- a driver's license, a social security card, or some other identifying item -- which led the police to him.  That's bad enough, but Jaron Solomon's situation is even more embarrassing.  He left his hairbrush, embedded with his DNA, next to the guy he shot at the scene of a robbery he committed.


I imagine the guys down at the joint will be impressed by a well-coifed addition to their ranks:

"Hey, I saw the new guy from Cell Block C over in the yard."


"And his hair was perfect."

Solomon's trying to vacate his plea, and his argument his simple:  his lawyer didn't tell him that by pleading guilty he'd be forfeiting his right to appeal the motion to suppress his statement, which the trial court denied.

The record doesn't really bear that out, so the panel affirms.  Solomon got a fairly good deal, and the only way he could retain his right to appeal was by pleading no contest to the indictment.  From the brief portions of the transcript, it appears that he made a knowing choice to take the deal and forego appeal of the motion. 


In a lot of states and Federal circuits, the only way you can bring an ineffective assistance of counsel claim is trhough collateral proceedings, like habeas or post-conviction relief.  Sometimes, the claim can be determined solely from the record - failure to object to a jury instruction, for example - but this wasn't one of them.  Anytime you describe the situation and include the phrase, "my lawyer told me," you should be in post-conviction, where you can introduce affidavits and present testimony that never was part of the records.

There are two things that happen on the day of trial in State v. BuchananFirst, Buchanan seeks to represent himself.  Normally, that would be a no-go:  there are plenty of cases holding that an assertion of the right of self-representation must be timely made.  Buchanan's situation is made worse by the fact that he spent a year being restored to competency, and the panel agrees that, given Buchanan's "often muddled and confused answers" in the hearing to determine whether he can act pro se, a waiver of counsel wouldn't be knowing and voluntary.

The second thing that happens is the State belatedly realizes that while the indictment claims the incident, a rape, happened in August, it actually happened in December.  While timeliness may be a problem for Buchanan, it's not for the State; the judge grants a motion to amend the date of the indictment.  The court does chide the prosecution for "lack of workmanship," but affirms, noting that the result might be different if Buchanan were claiming an alibi, instead of arguing consent.

During a month-long crack binge, the defendant in State v. Wojtowicz perfects a simple modus operandi:  he'd steal a car, ram it into a store, then grab cigarettes and other merchandise and take off.  Well, not perfect; that would imply he wasn't caught.  He was, leading to six different indictments and, ultimately, twelve years in prison.

The issues you have on appeal from a plea and sentence are limited, but Wojtowicz works it as best he can.  He first complains judge didn't tell him that he could get consecutive sentences, but the judge doesn't have to, and anyway the judge did.  Next up, he contends that the lawyer told him he'd probably get about five years, but a lawyer's mistaken prediction about a sentence isn't ineffective assistance. 

He also argues about the $25,000 in restitution he was ordered to pay, but the panel is unsympathetic, noting that "Wojtowicz will be approximately 42 years of age when released, and it is quite possible that Wojtowicz will be able to pay the restitution."  Sure it is.  One can only imagine how many employers are lined up to hire a guy who's spent the last dozen years in prison. 

The 8th District used to be the most Fourth-Amendment friendly court in the state, and after some hiccups, gets its mojo working again in State v. Jackson.  The Cleveland Police have a gang unit, and the unit detective estifies that they'll cruise around the city (read:  black neighborhoods) and stop people (read:  black people) "hanging around on the corners, in front of stores." 

On this particular occasion, in an area known for "heavy gang activity" (read:  lots of black people), the officers see a vehicle with three occupants parked on the side of a road at about 11 PM.  This engendered their suspicion, so they hit the sirens and lights and pulled up to the car.  As they approached it, they saw one occupant with an open container.  You can figure out what ensued, but the net result was the discovery of a gun and an indictment of Jackson for having a weapon under disability.

The trial judge upheld the search, but the panel reverses, holding that "the record supports Jackson's position that the detectives initiated the traffic stop based on a mere hunch and their belief that Jackson's parked vehicle was suspicious based on the character of the area," so "we resolve this case in favor of Jackson's Fourth Amendment rights."  Can I have an amen? 

A couple of points here.  The cops putting on their lights and sirens constituted a stop under Terry, which requires a reasonable suspicion of criminal activity.  This was a parked car, though; had the police simply pulled up behind it and gone over to talk the occupants, that would have been a consensual encounter, with no Fourth Amendment implications.

Second, the defense attorney (she handled both the hearing and the appeal) did a very good job of conceptualizing the strategy for the search issue, and executing it.  She got the detective to admit on cross that none of the officers saw the open container until after they'd stopped the vehicle, and the subsequent discovery of evidence can't validate an otherwise illegal stop.  That's what served as the basis for the panel's opinion.


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