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What's Up in the 8th

 Got an email from an attorney friend of mine a couple weeks ago, informing me that the State had quoted me in their brief in an appeal she was handling.  She did not appear too pleased by this, closing her missive by postulating the existence of a sexual relationship between me and my mother.

The case involved a Batson challenge, and the State began its brief on this point discussing the sanctity of peremptory challenges, closing with this:

Even a prominent local criminal defense and appellate attorney acknowledged as much, describing the "hound dog method" of picking a jury: "Every now and then, you'll see two dogs being walked down the street, who take an instant dislike to each other, barking and howling. That works with people, too. If you're getting bad vibes from a prospective juror, kick them off." 

That attorney was me, of course, in a blog post I'd done in October.  This isn't the first time this has happened, but right now, I'm just basking in the glow of having achieved prominence in the eyes of the prosecutor's office.

I'm also basking a bit in State v. ThomasBack in 2013, Thomas was sentenced to 8 to 25 years in prison on a cold-case rape.  I got the appeal, and the panel affirmed the conviction but vacated the sentence, holding that Thomas should've been sentenced to flat time under H.B. 186.

The State appealed it to the Ohio Supreme Court, the court took it in, and I won there.

In the meantime, after the State appealed to the Supreme Court but before the court agreed to hear the case, the trial judge conducted a re-sentencing, and gave Thomas the maximum 11 years.  I appealed that, and I sort of won:  the court reversed again, holding that the trial court didn't have jurisdiction to re-sentence because of the pending appeal.  Can't take credit for that one; the panel raised the issue sua sponte. 

We go back for another resentencing, and the judge maxes Thomas out again.  So we trot across the street once more.

I thought I had a real good argument that the record didn't support the sentence.  Thomas had committed this crime almost 25 years ago, when he was 19.  He hadn't committed any offense since 1996, and that was a misdemeanor.  In the three years he'd served in prison, he'd compiled a perfect disciplinary record - hard to do when you can get written up for looking at a guard cross-eyed - and been moved to an honors dorm.

I also threw in a claim that the sentence was vindictive:  the judge hadn't given Thomas the maximum, which would have been 10 to 25, when she first sentenced him.  But I thought my winner was the first one; I didn't plan on even addressing vindictive sentencing at oral argument. 

Shows what I know.  That's all the panel wanted to talk about.  Last Thursday, exactly 20 days after oral argument, I got the decision reversing the sentence once more.

Now, the State could appeal to the Supreme Court, but since I know the gang over there reads my stuff, here's a fun exercise for you:  Try to come up with an argument that the Supreme Court should spend its valuable time on this case when the chances of this situation ever arising again are the same as zero.

Surprisingly, there were things that happened in the 8th District over the last six weeks which didn't involve me.

Like State v. Carter, a child rape case where the SANE nurse testifies that it's "important that we believe" children complaining of sexual abuse, and that she assured the child that "we believe her disclosure."   The Supreme Court held in State v. Boston that an expert couldn't testify as to her opinion of the credibility of the alleged victim, and the panel decides this crosses that line.  Then it becomes a question of whether it's harmless, and the panel finds that it's not harmless error if the case is a credibility contest between defendant and accuser. 

State v. Davner presents two oddities:  it is the rare case which reverses the denial of a motion to withdraw a plea, and it discloses the attorney's name while finding him ineffective.  It reads like a primer in how not to represent a defendant.  One is left with the firm impression that Davner's lawyer pressured him into taking the plea, which was entered on the day set for trial, an impression buttressed by the lawyer's giving Davner bad information on judicial release, and admitting on the record that he wasn't prepared for trial because he thought Davner would plead.  The dissent makes a decent argument that this is a closer call than it might appear, but this is one of those cases where you don't wade into the legal thicket, but just decide that nobody should go to prison after a procedure like this.

Finally, this week's Teaching Moment comes courtesy of State v. Jones.   There aren't a whole lot of good arguments you can make to mitigate your sentence for engaging in 2½-year-long incestuous relationship with your under-16 stepdaughter.  Contending you shouldn't get much prison time because you have other children at home isn't one of them.


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