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June 2017 Archives

Plea Bargaining -- The defendant's view

The Supreme Court's decision in Padilla v. Kentucky was a landmark.  Not only did it conclude that a non-citizen defendant had to be warned about the consequences of a plea on his immigration status, but it also decided for the first time that a lawyer had to give correct advice on that status, which is a purely collateral matter.

But it left some questions unanswered.  What if the lawyer simply doesn't give advice, instead of the misadvice in Padilla?  The Court noted that a number of states had statutes requiring warnings on immigrant status, and cited Ohio approvingly; does that mean the judge's warning absolves the attorney of any responsibility?

And there was one big question left over.  If the statutory warning isn't given, it comes back, no questions asked.  (Well, one question:  was the motion to vacate filed within a reasonable time, measured from the point where the defendant became aware of deportation proceedings?  That's fair; if you know The Man is coming for you, and you don't do anything about that for eight years, I'm not going to feel sorry for you, and neither is an appellate panel.)

Most of these cases, though, come back on claims of ineffective assistance of counsel. That's a two-pronged analysis:  the attorney's performance has to be deficient, and the defendant has to show prejudice.  In Padilla, that meant he had to show that his attorney had given bad advice, and that had he been warned of the consequences, he would've gone to trial instead of pleading. 

But how do you gauge whether the defendant would have gone to trial?  The Court gave a basic answer to that one last Friday in Lee v. United StatesAnd maybe answers to some other questions.

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What's Up in the 8th

In State v. Carabello, the judge dismissed a case because the State hadn't provided full discovery by the trial date.  Read that sentence again; you're unlikely to see it anytime soon.

The State squawked and took it up on appeal, arguing that the judge should've conducted an evidentiary hearing on the discovery violation before dismissing it.  Here's where things get weird:  the State claims there was no hearing, but in their appeal filed a precipe asking for a transcript of the hearing.  Since no transcript was provided, the court presumes the regularity of the proceedings below.  What's more, no evidentiary hearing is really required; CrimR 48 simply specifies that the judge has to provide reasons for the dismissal, which the judge did, albeit ever so briefly:

Case called for trial. Outstanding discovery. Case is dismissed without prejudice. Over state's strenuous objection.

I've seen the State object strenuously.  It's not pretty.  The moral of the story, I suppose, is that if you wait until the day of trial to file supplemental discovery, be prepared to object strenuously when the judge dismisses the case.

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Crime and the First Amendment

Although I have a Facebook page, I don't spend time on it, for two basic reasons:  first, I've seen enough dog pictures to last me a lifetime, and second, no, I don't care where you went shopping today.

Lester Packingham was more social-media friendly.  Six years ago, after a judge dismissed a traffic ticket he'd gotten, he posted this message on his Facebook page:

"Man God is Good! How about I got so much favor they dismissed the ticket before court even started?  No fine, no court cost, no nothing spent ... Praise be to GOD, WOW! Thanks JESUS!"

Packingham had a far better reason to stay off of Facebook than I do:  that post got him charged with a felony, for which he received a suspended prison sentence.

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What's Up in the 8th

My winning streak - which was either at one or two, I forget - comes to an end with State v. Lash.  Lash and his three compatriots decided to rob an AutoZone.  From his prior experience working there, Lash knew that the store was staffed by two people.  One would take out the trash near the close of business.  The plan was to blind and handcuff him, then rob the store.

The first part went as planned, but the second part was aborted when some customers drove up.  Various other factors led to the search of the house where Lash lived with his mother, and in his bedroom the police found a pair of handcuffs, with the serial numbers scratched off.  Oh, wait, did I tell you the part where the police found that the employee had been bound by an identical pair of handcuffs, with the serial numbers scratched off?

That led to a tampering with evidence charge, certainly the least of Lash's problems, but the one for which I devoted most of my ingenuity.  Tampering requires proof that an investigation was in progress or likely, and I argued that since the crime hadn't progressed to the point where it was even an attempt, there was no investigation likely.  Even threw in some law school bullshit about inchoate crimes.

Yeah, that went well, right?  Ingenuity indeed.  Well, it wasn't the worst argument I've made.  That week...

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Case Update - SCOTUS

President Trump's immigration ban is apparently on its way to the Supreme Court, and the hot topic du jour among the Talking Heads is something that wasn't covered in law school:  the effect Trump's tweets might have on the outcome.  The government had argued in its briefs that the policy was only intended to pause immigration while vetting procedures were tightened, only to see Trump reiterate in numerous tweets that it was indeed a ban.  The Solicitor General has urged the courts to ignore Trump's campaign-trail comments, because taking the oath of office "marks a profound transition from private life to the nation's highest office."  The Times' Linda Greenhouse counters that "it is "the very absence of such a 'profound transition' in President Trump's behavior that increasingly concerns his critics and even some close allies."  Feel the burn!

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What's Up in the 8th

As if my life isn't complicated enough, here I find out that there's a war between two branches of the Heartless Felons, the Fleet and Broadway divisions.  I'm sure a good moral cause motivates at least one of the players in this internecine conflict, but can't quite be troubled to learn which one.  In any event, Antonio Houston is convicted of shooting at a bunch of people at various times while riding in a car.

He didn't kill anyone, but he might as well have.  By the time we get stacking sentences, and throwing in the firearm specs and the driveby specs and the RVO's, he winds up with 67 years in prison.  He'll next breathe the air as a free man when he turns 93.  It says here he doesn't make it. 

The panel's affirming all that breaks no new ground, but every now and then it's helpful to go back over well-trodden fields.  So here's what you need to know:

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A switch in time

In State v. Aalim, the Ohio Supreme Court held that the statute requiring mandatory bindover of juveniles for certain crimes was unconstitutional.  Last week, they decided it wasn't.

In State v. Gonzales, the Ohio Supreme Court decided that to prove the amount of cocaine for conviction of a possession or trafficking offense, only the amount of cocaine could be considered; any filler had to be discounted.  Earlier this year, they decided that the amount of filler could be included.

It took the United States Supreme Court 46 years to overrule Plessy v. Ferguson's "separate but equal" doctrine.  It took them 27 years to overrule Belton v. New York, which created a "bright-line" rule allowing the police to automatically search a car if the defendant was arrested, even if the defendant was safely, if unwillingly, ensconced in the back of a police cruiser.

The Ohio Supreme Court works more swiftly.  Gonzalez took just under three months to overrule, Aalim about six.

Except they weren't really overruled.  They were "reconsidered."

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What's Up in the 8th

A couple years ago, the 8th District was throwing out aggravated murder convictions left and right for insufficiency of evidence of prior calculation and design.  The prosecutor's office appealed each one of them, their apoplexy at the result increasing exponentially as each decision came down.  The Supreme Court finally agreed to hear one of them, State v. Walker (discussed here).  To the State's continued distress, the Supreme Court affirmed.

The closeness of the 4-3 decision reflects the murkiness of the issue:  prior calculation requires more than premeditation, but the line is blurred.  The court in Walker relied heavily on an earlier decision, State v. Taylor, in which the court articulated three factors to consider in deciding prior calculation and design:  whether the victim and the defendant knew each, especially when there was bad blood between them; whether the defendant exercised some thought and preparation in choosing the murder weapon or the murder site; and whether the killing was drawn out or an "instantaneous eruption of events."  I said at the time that Walker meant that at least one of the Taylor factors had to be present for a finding of prior calculation and design.

Which proved to be as prescient as my prediction that the American public would never elect an egomaniacal orange-haired loon as president.  

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Case Update

Angel Mendez and his girlfriend were resting comfortably in the shack where they lived, when two deputy sheriffs burst into the place without knocking or announcing their presence, and without a warrant.  When he heard someone entering, Mendez picked up a BB gun and moved it so he could stand up.  Bad decision:  the cops, seeing the gun, launched a fusillade of bullets toward the pair, leaving both severely injured; Mendez had to have his leg amputated.

Well, surely the evidence the police found would be suppressed, wouldn't it?  The police didn't find any evidence.  The case, County of Los Angeles v. Mendez, dealt with the civil liability of the county for the injuries suffered by the pair.  As you may know, police officers have "qualified immunity" for suits for constitutional violations:  you have to show that the police knew their actions were impermissible before they can be held liable. 

In Mendez, everybody agreed that, once the officers observed the gun, they used reasonable force; the question was whether their prior unconstitutional actions could factor into that equation.  In a unanimous opinion, the court basically says, yeah, but not the way the 9th Circuit did it.  I read the opinion, but mostly came away from it with the feeling that this probably isn't the time to put more restrictions on the ability of people to sue the police for excessive force.  More on that later.  

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Recent Entries

  • June 28, 2017
    Plea Bargaining -- The defendant's view
    A look at the Supreme Court's decision last week in Lee v. United States
  • June 27, 2017
    What's Up in the 8th
    A worrisome decision on expert funding, and, mirabile dictu, a court's dismissal of a case for a discovery violation is upheld
  • June 23, 2017
    Crime and the First Amendment
    Facebook and sex offenders, and encouraging someone to kill himself
  • June 20, 2017
    What's Up in the 8th
    I come a cropper, plus inventory searches and mandatory probation
  • June 19, 2017
    Case Update - SCOTUS
    What's coming up in the US Supreme Court in the next two weeks
  • June 12, 2017
    What's Up in the 8th
    After weeks in the desert, we come upon an oasis of defense wins
  • June 7, 2017
    A switch in time
    Why what the Supreme Court did in Aalim II and Gonzales II is a bad thing
  • June 6, 2017
    What's Up in the 8th
    A turnabout on prior calculation and design, and harmless error in all its manifestations
  • June 5, 2017
    Case Update
    A death penalty case, fourteen years after the crime, and we're just getting started. And two appellate decisions on search and seizure.
  • May 31, 2017
    What's Up in the 8th
    "What's a law enforcement accountability activist?" asked someone never, but the answer is here. Plus, cell phone experts, joinder, and the fading glory that was State v. Hand.