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What's Up in the 8th - Part I

I used to like it if my clients were in jail pending trial.  At least that way, it's harder for them to commit new crimes.  One thing has changed my opinion:  the realization that among the 2,150 inmates of the county jail, at least 1,600 must have a law degree, and are more than happy to advise my client about my innumerable failings and lack of knowledge.

Did you know that you can't be prosecuted for drug residue?  That failure to comply -- basically, the old fleeing and eluding the police -- requires the State to prove that the chase was at least four miles long?  All too often, I find myself sitting in a holding cell thinking, "Wow, I'm here with a guy in an orange jumpsuit, and I'm the dummy in the room.

So when the trial judge tells the defendant in State v. Richmond that he "should be careful not to listen to 'jailhouse lawyers,'" my only response is, can I have an amen?

Richmond re-teaches the lesson that only where there's been a total breakdown of the attorney-client relationship is replacement of the former required.  A defendant doesn't have to be in love with his lawyer, and Richmond mainly adds to that by extending it to a defendant doesn't even have to be in like.

Sex cases abound, again; we Clevelanders are a randy, if misogynist, lot.  Richmond was a rape case, and in State v. Miller, the defendant winds up with a decade-long prison sentence for sitting next to a 10-your-old at "The Peanuts Movie" and rubbing her leg.  It comes back, though; the judge had referred the defendant for competency, but made no finding one way or the other. 

That's not necessarily fatal; there's a 1986  Supreme Court decision, State v. Bock, which says that "the failure to hold a mandatory competency hearing is a harmless error where the record fails to reveal sufficient indicia of incompetency."  I'm sorry, but that's stupid.  If the record reveals that there was sufficient indicia of incompetency to persuade the trial judge to refer the defendant to determine if he was competent, well, that's good enough for me.

But in the Supreme Court decision, the defendant had testified at length, and had given reasonably cogent responses; the court decided that, absent anything in the record indicating that the defendant was wearing a drool bucket on the stand, that was good enough for government work.

The Miller panel does a very nice job of analyzing that.  It correctly reads the situation as requiring a balancing of the evidence of incompetency against the evidence of competency.  Here, there was evidence of incompetency, by virtue of the referral.  Brock didn't go there, but the panel draws an important distinction:  while Bock's lengthy testimony at trial provided evidence of competency, Miller's limited responses at the plea and sentencing weren't sufficient to do so.

The only way to read Miller is that unless the case goes to trial, if there's a referral for competency and there's no disposition of it, it goes back.  Hard to argue with that.  That's why it's called a mandatory hearing.

Romeo and Juliet is reprised in State v. Crymes, updated about five hundred years:  in this version, Juliet claims that she was raped.

So here's the story.  Romeo was 17, Juliet 13.  The liaison took place on the couch in her house.  This wasn't a break-in:  the two had been "dating" for several months, and Romeo told the police they'd had sex the month before.  He also told the police that she had called him the morning of the alleged rape, at 1:00 A.M. and again at 6:15 A.M., to make sure he was coming over.  She was confronted the next day by her mother, and denied any rape, until mom -- a Cleveland police dispatcher -- announced that she was taking Juliet to the hospital for examination.  Juliet told the police that when Romeo came over, he forced down her pants and had sex with her, despite her protests.  Juliet told the hospital that she had a crush on Romeo.

Oh, and here's the kicker:  all this happened in 1996.  The police sent the file over to juvenile court prosecution.  And no one heard any more about it until Romeo became a CODIS hit almost twenty years earlier.

Entre moi, stage left; I got assigned to the case.  The big issue is obviously pre-indictment delay.  That requires a showing of actual prejudice, and if that's established, unjustifiable delay.  I've got the back end covered.

And for prejudice, there are the phone calls.  Romeo had the same number he'd had back then, and I subpoenaed the phone company records.  They conducted an exhaustive search, and two minutes after I'd sent the subpoena by fax, I received a return one telling me they don't keep their records that long.

Imagine my surprise.

How would that have played out at trial?  The panel, on appeal by the State from the judge's grant of the motion to dismiss, notes that the phone calls would have directly contradicted Juliet's statement to the police that she "didn't know why" Romeo had appeared on her doorstep that morning.

But the court goes on, and makes two other astute observations.  First, it is the existence, not the content, of the phone calls that is significant.  Second, this is not a situation where Romeo was coming up with the phone call story now.  He told the cops about that at the outset, and they had ample opportunity to check it out.

So, two good decisions.  There's more, and we'll talk about them tomorrow.


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