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What's Up in the 8th

It used to be that I preferred that my clients remain in jail pending trial.  Not because I'm a bad person, but at least that way their chances of picking up another case were minimized.

I've changed my mind about that, because it's become increasingly apparent that among the 1,000 inmates in the county jail, a great majority are more than willing to tell my client everything I'm doing wrong.  The new Big Thing is the Motion to Disqualify Counsel, a form template which appears to be circulating in the jail, with the aggrieved defendant filling out the caption and then a paragraph or two detailing his litany of woe with his attorneys. 

Success on this front is not easy:  according to State v. Hill, good cause for removal "exists only where there's a conflict of interest, a complete breakdown of communication, or an irreconcilable conflict that could cause an apparently unjust result."  Hill's complaint appears to be that his lawyers aren't telling him what he wants to hear, and that doesn't cut it.  

The defendant's complaint in State v. Robinson is even more amorphous; he tells the judge that doesn't "feel like the communications are good here ... I just don't think we're connecting, clicking on the same page and we got the same thing in mind."  While that might be a good break-up speech with a girlfriend, it again falls short of what's required to get a new attorney, especially since Robinson first voices his displeasure with counsel on the day of trial; there's a presumption of bad faith if you wait that long.

The lawyer's performance is also at issue in State v. Tinsley.  Tinsley pleads to a felony-two drug trafficking charge, and at sentencing the State asks for a sentence of "at least" three years.  Tinsley's lawyer says a three-year sentence is just fine, and that's what the judge imposes.  Tinsley's claim on appeal that the lawyer rendered ineffective assistance by not urging a minimum sentence is rebuffed by the panel:  a rule requiring lawyers to always ask for the minimum

would not take into consideration the attorney's knowledge of the particular practices of a trial judge in light of the criminal history of a defendant, the best outcome achievable given the various parameters of a case, and the attorney's experience.

And that's right on the money:  sometimes, asking for a minimum sentence is just not credible, and you might as well not say anything.  You have to gauge your surroundings.

I'm not so sure the court's decision in State v. Stefan is as correct.  Stefan, who lived in Lorain County, entered an Internet chat room and found a woman offering to introduce her fourteen-year-old daughter to the joys of sex.  Ignoring a host of red flags, he made arrangements to meet the mother-and-daughter team at a Cuyahoga County fair.  If you haven't guessed by now, the "mother" was a detective with the Internet Crimes against Children Task Force.  Stefan is arrested when he shows up for the meeting, and agrees to a search of his house and the seizure of his computers, on which the detectives find child pornography files from ten years earlier.  Stefan pleads to child porn and importuning, and gets eight years.

A friend of mine worked with me on the brief, and came up with what I thought was a good argument:  the statute of limitations had expired on the child porn charges, and the venue for those charges was Lorain County, not Cuyahoga.

The panel was not impressed.  It held that the statute was tolled until the porn was discovered, and the importuning and porn was a "course of conduct" which allowed venue in either county.

While the Ohio Supreme Court has held that the statute of limitations in cases involving fraud are tolled until the fraud is discovered, the court's holding here is much broader:  it would essentially eliminate any statute of limitations for child porn.  And if a defendant sold drugs in Lorain County in 2005, and sold drugs in Cuyahoga County a decade later, I don't believe anyone would be arguing that the two offenses constituted a course of conduct.  But we're talking about child porn here, so chalk this up to the application of the Bad Man Doctrine.

A no contest plea gets tossed in Euclid v. Cannon.  RC 2937.07 requires that that there must be an "explanation of circumstances," for a no contest plea.  Anybody can provide it -- the prosecutor, the police, even the defendant -- but it does have to be sufficient to support a finding of guilt.  (And it can't be something that the trial court can just glean from the documents in the file.)  In Cannon, the defendant is the one who provides the explanation, but it's exculpatory, so the panel reverses.  Not only that, but since this is an insufficiency of the evidence analysis, Cannon's conviction is vacated and he's discharged.

The defendant in State v. Mahon worked in the Cleveland Municipal Court's clerk's office, and did a dumb thing:  he'd gotten a traffic citation, and went into the database and removed the $200 court costs for the ticket.  That got him fired and a fifth degree felony conviction of unlawful use of a telecommunication device.  The judge imposed five years of community control sanctions, and in addition to the normal conditions, required Mahon to wear a GPS dev ice for a year, and forbade him, for the duration of his probation, to attend any place or function where alcohol was sold, served, or used:  restaurants, night clubs, sporting events, family functions, weddings, and the like.

While courts have broad discretion in imposing conditions of probation, that discretion isn't unfettered:  there has to be a reasonable relationship between the condition and the crime.  A number of courts have rejected prohibitions on alcohol use where the crime didn't have anything to do with that, or where there was no history of alcohol abuse.  The court does so here, and for good measure tosses the requirement of the GPS monitor.

The interesting thing to me was that the State conceded error.  I wouldn't particularly want to be a floor prosecutor in that courtroom for a while.


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