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October 2017 Archives

What's Up in the 8th

You can take a mulligan in golf, depending on who you're playing with.  Taking a mulligan on a guilty plea is a decidedly dicier matter.  And, like comedy, timing is everything.  The continental divide here is whether you seek to withdraw the plea before sentencing or after.  If it's the former, you get the benefit of the Supreme Court's admonishment that such motions should be "freely and liberally granted."  A motion made after the sentence should be rarely granted, "and only to correct a manifest injustice."

Michael Davis thinks that he's fallen on the right side of the divide.  He pleads out in six different drug cases, and the judge tells him he could get anywhere from 3 to 39 years.  At sentencing, the judge whacks him with 22 years.  I was surprised by that, and apparently Davis was, too.  He immediately sought to withdraw the plea.

Of course, that was denied, but Davis has an interesting argument on appeal:  since the sentence hadn't been journalized -- the judge hadn't even left the bench -- at the time Davis sought to withdraw the plea, there was actually no sentence, so he gets the benefit of the more liberal standard.  Not so, says the court:  the law is clear that once the judge pronounces sentence, a motion to withdraw after that is post-sentence.  Otherwise, a defendant could "test the waters" and, if he gets a sentence longer than he wanted, he could file a motion to withdraw and, as I said, get the benefit of the more liberal standard. 

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En banc on sentencing

Randy and Carissa Jones were convicted of involuntary manslaughter and child endangerment for neglecting medical treatment for their 12-year-old daughter.  The judge gave them each 10 years in prison, but last year the 8th District reversed, finding that the record didn't support the sentence.

Heaven Robinson pled no contest to five counts of child endangering, and the judge gave her a four-year sentence.  She appealed, claiming that the record didn't support the sentence.  Last week, the panel affirmed her sentence, ignoring the assignment of error and instead deciding that the sentence wasn't contrary to law:  it was within the limits set by the legislature, and the journal entry said that the judge had "considered all required factors of law," and that's all that was necessary.

This is what might be called an intradistrict conflict, and App.R. 26(A) provides a means of revolving that:  having all the judges review the decision.  And that's exactly what's going to happen:  the 8th is reconsidering Jones en banc.  

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Friday Roundup

A bit overworked, eh?  I had lunch with a couple of women from the Public Defenders office here on Friday.  The subject of case loads came up, and they mentioned that they each have about 50 or so open files, about the same number I've got.

We're pikers compared to Karl Hinkebein.  He's a public defender in Missouri, which is a bad place to be if you're a public defender.  Or the client of one.  The state allocates $355 per case for indigent defense.  Only Mississippi spends less.  The result?  The state's 370 public defenders handle more than 80,000 criminal cases a year.  One of the reasons I went to law school is that they promised there wouldn't be any math, but even Barbie can figure out that that comes to about 216 cases per year. 

Of course, an average is just that.  There will be defenders who handle fewer cases than that.

And there will be some who handle many more.  The director of the state's public defender system says that one public defender is handling 298 cases, another 295, and a third 198.  Those numbers aren't per year; that's the number of active cases those attorneys are handling right now.

That's where Hinkebein comes in.  His workload, in comparison, was relatively light:  "only" 110 active cases.  The number of cases and chronic health problems resulted in the state's disciplinary counsel filing a complaint against him for neglecting six cases.  The Supreme Court let him continue to practice law, putting him on probation; another violation could result in the loss of his license.

The other public defenders drew the proper inference from this:  more cases, more chances to screw up, risk losing the law license, as opposed to fewer cases, less chances to screw up, less risk to the law license.  And so the instinct of professional self-preservation kicked in, and they simply stopped taking cases.  Or tried to:  several judges have threatened public defenders with contempt if they refuse to take assignments.  Others have instead appointed private attorneys to handle new cases.  They're not paid; there's no provision in the state's budget for that, so they work pro bono.  Lucky them.

I could spend the next three months writing posts about the abysmal state of indigent defense in this country.  The simple fact is that state governments, including Ohio, are acquitting themselves of their Sixth Amendment obligation to provide lawyers to poor people on the backs of public defenders and private attorneys.

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Case Update

Last Monday was the first Monday in October, which means not only was it the first Monday in four weeks that didn't occur in September, it was the beginning of the U.S. Supreme Court's 2017 term.

One of the lead cases for oral argument last week was Gill v. Whitford, which has the potential to be the most significant case on politics since the 1962 "one man one vote" decision in Baker v. Carr.  (Oh, and there was that little dustup in Bush v. Gore that had some ramifications.)  Gill is an appeal from Wisconsin's 2010 redistricting scheme, the plaintiffs arguing that Democratic votes were diluted by the Republican legislature's gerrymandering.  That was relatively obvious:  In 2012, Republicans won only 48.6% of the statewide vote, but wound up with 60 of the 99 seats in the state assembly.  While at oral argument the four conservatives predictably voiced concern about venturing this thick, and the four liberals seemed more than willing to do just that, Kennedy seemed somewhat responsive to the plaintiff's arguments.

Of course, as the numberless hordes of my regular readers can attest, those seeking to learn more of this will not have the gaps in their knowledge filled by this blog.  Instead, they are respectfully directed to SCOTUSblog, where they can review a week's worth of commentary, while the rest of us stay here and talk about criminal law. 

Not too much going on there.  Last week's oral arguments included Class v. US, which poses the issue of whether a guilty plea waives a defendant's right to challenge the statute of his statute of conviction.  Of interests only to Federal practitioners:  in Ohio, a guilty plea waives everything except subject matter jurisdiction and ineffective assistance of counsel, and the latter only where the ineffective assistance induced the plea.  Good luck with that.

In fact, criminal cases are at a minimum through the end of the year:  the only one of real consequence presents the issue of whether the police need a warrant to get historical cell phone records.  Things pick up in the new year:  there are several cases on search and seizure law.  The most interesting one, though, is McCoy v. Louisiana, which presents an ineffective assistance of counsel claim.  McCoy was on trial for killing his estranged wife's son, mother, and step-father.  His lawyer wanted to concede his guilt in the hopes that the jury would not impose the death penalty.  McCoy objected strenuously, but the lawyer went and ahead and did it anyway.    

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What's Up in the 8th

The hardest part of filing a motion to reopen your appeal because you think your appellate lawyer was a screw-up -- besides the fact that almost invariably, you have to do it pro se -- is getting in the door.  You have 90 days from the court's decision to file it, unless the court finds "good cause" for a late filing.  That "good cause" appears to be a legal Bigfoot; although people talk about it, there've been no sightings, as best I can tell.

And so the defendant in State v. Robinson doesn't get in the door, in fact, isn't even allowed on the tree lawn:  the time for his filing expired ten years and nine months earlier.  The defendants in State v. Miller and State v. White do make the cut, but their identical arguments -- that the Cuyahoga County common pleas court lacked jurisdiction to try them because the indictments didn't specify where in Cuyahoga County the incident occurred -- is rejected because there's nothing that requires an indictment to do so.  You will probably not be surprised to learn that the two briefs are almost identically worded, as well.

It will surprise you even less to learn that Miller and White are in the same prison.

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State v. Thomas

I don't know how many times the Ohio Supreme Court has reversed a death penalty case since we got the new law in 1981.  My guess is that you could count them without having to take your shoes off.  But whatever the number is, you can add one to it:  yesterday, the Supreme Court reversed a capital conviction in State v. Thomas.

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Russ' Excellent Adventure

Voir dire started to go south when one juror told the bailiff that she couldn't stand me.

We brought her out into the courtroom, and in probing questioning, a bit too extensive for my taste, the prosecutor established that the prospective juror felt that I was a complete phony, play-acting to the point where she felt she was in a television show.  She looked at me and said, "It's nothing personal."

Well, that's good.

When she said that the only way she could be fair and impartial was if I didn't say anything the rest of the trial, we agreed to remove her.  Still, what she said lingered.  I was defending a cold case rape, with my defense being that the woman was a prostitute.  I'm so sensitive to feminist issues that I make Alan Alda look like Vlad the Impaler, and here I was sounding like a pre-rape-shield shyster.  By the time closing argument came around, I was sure I could feel the hatred from the jury box rolling over me like a wave.

So I was surprised when they came back in an hour and fifteen minutes with a not guilty.

Several lessons.

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What's Up in the 8th

One of the arguments raised in the appeal in State v. Makin is that the judge denied a continuance requested by the defendant for a defense witness to show up.  That's sabotaged by the defense attorney admitting to the trial court that the witness wasn't really that important.

When I read that, my first reaction was, "what defense witness is?"  One out of twenty will be helpful.  The others range from inconsequential to catastrophic, with the curve skewed toward the latter.  If you put a family member on to give an alibi, you deserve to lose.  In fact, the only thing worse than presenting the testimony of one family member on an alibi is presenting two:  they'll invariably get their stories mixed up.  

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