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Case Update

Neil Gorsuch cast his first major vote last week.  It provided a majority approval for Arkansas to kill Ledell Lee, the first time in a dozen years that the state has executed anyone. 

But that opened the floodgates, as we say in the law biz.  Lee was one of four inmates that "got the cocktail" in Arkansas last week.

One of the trio of drugs used in the state's killings was midazolam, a sedative.  Pharmaceutical companies won't sell that anymore unless the buyer - usually governments - agree that it won't be used for executions.  Arkansas' supply was due to run out at the end of the month, and so the state what one commentator aptly termed "a lethal clearance sale." 

But at least we won't have to worry about keeping safe from Jack Jones, the first to meet his maker that night.  Not that we had much to worry about anyway, given that he's an overweight 52-year-old amputee.  Three hours later, Marcel Williams met the same fate on the same table, marking the first time in eighteen years that a state had executed two people on the same day. 

It could have been worse:  Arkansas actually had eight executions lined up for the month, but four were stopped by court order.

Not by Neil Gorsuch's order.

Another lawyer in my office has a good friend who works for the attorney discipline board in Illinois.  He says the friend tells him that anytime they want to find the harshest rules and penalties, they look to Ohio.  At first blush, that view is reinforced by last week's decision in Disciplinary Counsel v. Denslow

Maybe at second blush, too.

Let's start with the ending.  Denslow got a six-month stayed suspension.  What did he do to earn that?  How much of the client's money did he put into his checking account instead of his IOLTA account?  Did he fail to show up for a pretrial because he was drunk or, even worse, show up for the pretrial drunk? 

No.  Denslow blew the filing deadline for an appeal.

As Paul Harvey used to say, "and now, for the rest of the story."  As is often the case, this was an alcohol-involved screwup.  The opinion notes that "after committing the misconduct" (read:  after he got the letter from Disciplinary Counsel), Denslow entered into a four-year stint with the Ohio Lawyers Assistance Program (think AA meetings, but with most people dressed in suits).

But that was it.  No pattern of misconduct.  No failure to cooperate with the disciplinary investigation, no failure to refund a retainer, no prior disciplinary history.  (Well, that's not quite true.  His license had been suspended for three weeks two years ago for an incident which foreshadowed this one:  he missed the filing deadline to register as an attorney.) 

If I asked a hundred lawyers if they'd ever missed a filing deadline, fifty percent would admit that they did and the other fifty percent would lie.  You now have a decision from the Supreme Court that says that missing a deadline on a single occasion, without any other factors, requires a suspension, albeit stayed. 

And that's not the scary part.  The scary part is that this is a disciplinary matter at all.  Yeah, blowing a deadline is a serious matter, especially if it gets our client kicked out of court.  And that's why we carry malpractice insurance.

In the courts of appeals...

Registration... It's not just for sex offenders anymore.  There's an arson registry, too, and if you're convicted of arson you're on the registry for life.  There is one escape hatch:  the period can be reduced by the court, but only if it receives a request from the prosecutor or the investigating law enforcement agency.  If that sounds kinda hinky, the 4th District agrees in State v. Dingus.  Well, they didn't call it "hinky," but they did hold that it violated the separation of powers doctrine, essentially giving the executive branch veto power over what the judicial branch decides. 

Dismissals for speedy trial violations are as common as thoughtful Adam Sandler movies, but the 6th District affirms a dismissal in State v. Arrington.  The State gets away with a lot stuff in discovery, but not here:  after numerous motions to compel, the prosecutor provides defense counsel forty DVD's five days before trial, forcing a request for a continuance.  There were additional delays beyond that due to problems with discovery, and the judge tosses the case.  On appeal, the State argues that the judge was required to impose the least onerous sanction for discovery, but the panel isn't buying:  dismissal because of a speedy trial violation isn't a "sanction," it's required by statute.

In State v. Wright, the defendant's first trial resulted in a hung jury, and the State sought to introduce one witness' testimony from the first trial at the second.  Prior testimony is admissible under a hearsay exception, as long as the defendant had the opportunity to cross-examine when it was given.  But it also requires the proponent of the testimony to establish that the witness is unavailable despite the proponent's best efforts to locate him.

Wright claims the prosecution didn't show that, but the 1st District isn't buying.  It noted that although the witness had been in the courtroom at the start of the trial, "he had left the courthouse, could not be located, and was 'on the run,' actively trying to avoid testifying."  Yeah, that would do the trick.   

Finally, we come to State v. Jackson, a forty-page opinion dealing with ten assignments of error from the denial of a post-conviction relief petition which raised fourteen grounds of relief.  For those of you who are numerologists, if you multiply everything it comes to 7,840.  I'm sure it has meaning; for me, it means I'm not going to read the whole damned thing.  I got as far as the holding that res judicata bars you from raising issues in a PCR petition which you could have raised on appeal.  You don't get around that bar just by attaching some new material to your petition; the new material has to be significant. The other thing I learned, which is just reinforcement of a prior lesson, is that the next time you think of filing a post-conviction relief petition, go buy a lottery ticket instead.  You've got a better chance of winning that. 


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