Down in DC, the Supreme Court’s concluded oral arguments for the term.  Between now and the third week of June, expect a raft of decisions, probably the biggest being Heller v. DC, the gun rights case.

Down in Columbus, there was another sentencing decision.  The defendant in State v. Warren had committed the rape of a child in 1988, when he was 15, but wasn’t prosecuted until 2004.  The Supreme Court upheld a sentence of life imprisonment, ruling that there was no due process violation in imposing the mandatory sentence, and refusing to give mitigating consideration to his age at the time he committed the offense.  I’ll have more on sentencing later this week.

In Turner v. Ohio Bell, the plaintiff’s decedent had been a passenger in a car which ran off the road and struck a utility pole.  The plaintiff sued the utility company, and the 8th District had reversed a grant of summary judgment, holding that the reasonableness of the pole placement was a question for the jury.  Not so, say the Supremes:  if the utility company has obtained the necessary permits to install the pole, and if it doesn’t interfere with the “usual and ordinary course of travel,” the company’s not liable.  So unless they put one in the middle of the road, that’s that with that. 

The Court also holds that a decedent’s beneficiaries aren’t in privity with the decedent’s attorney, and thus can’t sue him for malpractice in screwing up a deed so that it increased the estate taxes.

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The only case out of DC this past week was the Court’s 6-3 affirmance of Indiana’s voter identification law, in Crawford v. Marion County.  Scotusblog has  an analysis of the case, if you’re interested.

I don’t usually do anything with 6th Circuit cases, although I probably should.  There was a very good one last week, in US v. Blair, involving a traffic stop.  The court tossed the search, and its discussion of the various aspects — traffic violation stop v. Terry stop, length of detention, etc. – make excellent reading, and give an absolutely essential understanding of the law in this critical area. 

Down in Columbus, the Supreme Court handed down about a dozen decisions.  Excluding the disciplinary cases (don’t steal from your employer, and don’t accept clients from a company that direct-markets estate planning services) and a few others which I wouldn’t read at gunpoint, there were State v. Price and State v. Bates.  Price involved whether a domestic violations order can modify an civil protection order as to questions of visitation (it can), but Bates is the biggie, not so much for what it decides — that a judge can order a sentence served consecutively to the sentence a judge in another case handed down — but for what it says:  the presumption that sentences are concurrent is no more.  I’ll have more on that tomorrow.

Elsewhere in Ohio’s capital, beleaguered Attorney General Marc Dann denied that he’d appointed Bluto as chief of staff of his frat hou — er, department.

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And I thought being a Methodist was complicated.  The wonders of the Religious Land Use and Institutionalized Persons Act, Congress’ attempt back in 1997 to protect religious freedom from government interference, was on full display last week in a case out of the 7th Circuit.  As Decision of the Day explains,

Plaintiff Gregory Koger was a Baptist when he entered Illinois state prison, but he went through several religious transformations while incarcerated, filing numerous requests for a special religious diet along the way. Eventually, Koger settled on Thelema, a religion founded by famed devil worshipper Aleister Crowley, whose golden rule is not “Do Unto Others . . .,” but rather “Do What Thou Wilt.” And Koger decided that for him, “Do What Thou Wilt” meant eating a special vegetarian diet.

The prison wasn’t accomodating of his request, so Greg, being a red-blooded American, sued.  Last week, the 7th Circuit reversed a grant of summary judgment to the prison.

Why yes, the war on drugs is going well.  Why do you ask?  Hard to tell what was more embarassing for the Pineville Police Department:  the fact that an undercover buy of drugs was inadvertently broadcast to the public over a police scanner, the fact that two of the people caught by the sting were Pineville police officers, or the fact that one of them worked in the schools for the DARE program. 

Maybe he’d eat better if he become a Theleman.  According to Overlawyered,

413-pound Broderick Lloyd Laswell was arrested for robbing and murdering Randy Walker and setting Walker’s trailer home on fire, and has been kept in an Arkansas jail cell awaiting a capital trial. Eight months later, he’s down to 308 pounds, but he’s not grateful for the diet, and has sued for “hot meals” and more consistent portions.

Calling all judges.  I blogged yesterday about State v. Colon, the Supreme Court’s decision a few weeks back, and the substantial impact it might have on the way that indictments are handled in Ohio.  That hasn’t escaped the attention of the prosecutors in this state.  I got hold of an email from Ashtabula County Prosecutor Thomas L. Sartini, written to Judge Diane Grendell of the 11th District in response to an email she’d sent out to all Ashtabula County lawyers about Colon.  Sartini waxes apocalyptic about Colon’s ramifications, which are so severe that the Ohio County Prosecutor’s Association held an emergency meeting in Columbus on Wednesday “to muster support for the Court’s reconsideration of the case.”  The letter closes by noting that “any support that the 11th District could provide would be greatly appreciated.”

Two things.  First, there’s a good chance that the prosecutors will get their wish.  Colon’s not a particularly compelling result, especially with regard to the determination that failure to include the mens rea requirement in an indictment is a “structural error.”  In fact, that runs directly contrary to the Supreme Court’s decision just a few weeks earlier in State v. Wamsley, where they specifically rejected the claim that failure to include a mens rea requirement in a jury instruction was structural error.

Second thing.  Why would a county prosecutor believe that an appellate court judge could, would, or should lend “support” to his efforts to get a Supreme Court case reconsidered?

Today’s menu features Virginia v. Gray, a notable US Supreme Court decision on search and seizure, which I’ll discuss in more detail tomorrow.  Closer to home, their Ohio counterparts handed down Columbus v. Kim, upholding that city’s noise ordinance against a claim of unconstitutionality, concluding that whatever one’s standards of “unreasonably loud” was, it was met by a dog barking for an hour and a half so loudly that it could be heard over a running lawnmower.  The court also handed down another decision in a speedy trial case, with a result that’s sure to astonish you.  Yep.  Shocking, I tell you.  Shocking.  We’ll talk about that on Wednesday, along with another case that came down a few weeks back.

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They’s had all they can take in the City of Brotherly Love, and they’s not gonna take no more:

Four veteran criminal defense lawyers sued the city and its court system yesterday, contending that fees paid to court-appointed lawyers for indigent defendants were “grossly inadequate” and that, as a result, defendants were being denied their constitutional rights to adequate legal representation, a speedy trial, and due process under the law.

The fees do appear pretty miserly.  You get $650 for a felony, plus $350 for each day of trial.  For handling a case that results in you spending a week in trial, that works out to $2,400, hardly a princely sum for an experienced criminal defense attorney.

Well, boo hoo.  Let me introduce you to Ed La Rue and Joan Hall.  Up here by the Cuyahoga River, Ed is a highly-skilled and well-respected criminal lawyer.  Joan Hall not so much:  she was indicted back in 2006 for running a retail rip-off scheme involving stealing merchandise, and then returning it to the store for a refund.  And this wasn’t a minor-league scheme by any stretch; the county indicted Hall and her daughter on some 79 counts of corrupt activities, forgery, money laundering, and theft, claiming that the fraud had gone on for years and allowed Hall to amass over a million dollars, which she stuck in offshore accounts. 

Hall’s path and La Rue’s didn’t intersect directly; both Hall and her daughter had the coin to retain counsel.  But Joan Hall, who was 67, had a 76-year-old boyfriend, and the prosecutor tossed in five counts against him as well.  He’d become homeless by this time, and so, as an indigent, was entitled to appointed counsel.  That’s where Ed La Rue comes in.  He got assigned to the case in January of 2006.

Nearly a dozen pretrials and hearings later, the case finally went to trial in March of 2007.  It took five weeks.  All of the defendants were convicted, and the case having finally been concluded, Ed submitted his fee bill for his sixteen months of work on the case, including spending the five weeks in trial.

Ordinarily, Ed would have been entitled to $900.  That’s the maximum fee for appointed counsel in a first-degree felony case in Cuyahoga County.  Read those sentences again.  That’s not a typo.  $900.

But wait!  There’s good news!  Under the Cuyahoga County local rules, appointed counsel is entitled to ask for “extraordinary fees.”  Hell, Ed probably should have asked for hazard pay; the court’s docket contains this tantalizing entry, from March 28, two weeks into the trial:

DEFENDANT IN COURT. COUNSEL EDWARD R LA RUE PRESENT. DEFT REMANDED. DEFT’S PRESENCE IN COURTROOM HAS BEEN WAIVED AS NECESSARY TO RESOLVE HEALTH CONCERNS. DEFT HAS ACTIVE SCABIES.

Ed submitted his application for extraordinary fees.  Sure, the 180-plus hours he spent on the case would only be reimbursed at the rate of $40 or $50 an hour, depending upon whether it was in court or not, but that’s a damned sight better than $900.

Ed’s application was turned down.  For all the time he spent in the case, he wound up getting less than $5 an hour.  If Ed had been an employee of the County, the County could have been Federally prosecuted for paying him what it did.

Someday, the attorneys in this town are going to have the balls to do what the attorneys in Philadelphia did.

Busy time for the Nine in DC.  The Supreme Court affirms lethal injection as a method of executing people, which will come in handy if it decides that child rape can be punished by death; it had the argument on that last week.  It also had two rulings on the armed career criminal act, which imposes a 15-to-life sentence for someone convicted of being a felon in possession of a firearm if that person’s had three prior violent felonies or drug offenses.  In Begay v. US, they decided that a prior felony DWI wasn’t a violent offense, but in Burgess v. US, they held that a drug offense for which the defendant was imprisoned more than a year — the definition of a felony under felony law — meant it was a prior felony drug offense, even if the state law classified it as a misdemeanor.  And talk about speedy justice:  cert was granted in Burgess only last December, and the ruling was made three weeks after argument.  The best indication of how clear-cut the ruling was is not just the fact that the decision was unanimous, but that the government lawyer received so little questioning at argument that she used only seven of her thirty minutes.

Down in Columbus, the Ohio Supreme Court handed down a bunch of decisions in various workers compensation cases, of which no more will be heard here.  In State ex rel Liwinski v. Unruh, it decided various questions regarding RC 2323.42, which allows medical malpractice defendants to file a motion requiring the court to determine whether the plaintiff has “good cause” for continuing the lawsuit, and awarding attorney fees for the defendant if the court decides the plaintiff didn’t.  That’s what happened in this case, although the timing was rather odd:  the court granted the motion after denying the defendant’s motion for summary judgment.

And on the legislative front, the state House passed a law adopting the “castle” doctrine, making it clear that a homeowner confronting an invader can use deadly force without being required to retreat.  Probably a good idea, although this seems to be a cure in search of a disease; somehow, all those cases of homeowners being prosecuting for shooting burglars in their homes seem to have escaped my notice.

On to the courts of appeals… (more…)

I lied again.  Turns out that my 500th post wasn’t last Thursday, like I said, but on Monday.  Oh, well, one of the reasons I went to law school is they promised there wouldn’t be any math.

Speaking of reasons I went to law school, I recommended my blog to another lawyer who does a good bit of appellate work, and the next time I saw her, she gushed, “You write really well!  I think you missed your calling.”  I told her that a lot of people apparently share that view, because an increasing number of judges, lawyers, and clients are telling me that perhaps I would have been better advised to choose something besides law as a career. 

Anyway, on to what has become the tradition here on Friday, a tour of the blogosphere to find something that catches my fancy, and may catch yours.

No quarter asked, none given.  The vast majority of depositions I’ve been involved in have been relatively peaceful affairs.  Oh, sure, every now and then I have one like last week, when the other lawyer either wanted to impress his client or get an audition for the next version of Perry Mason.  But for the most part, lawyers are professionals, and act professionally during a deposition.

For the most part.  Then again, there are exceptions, such as a deposition in a medical malpractice case which prompted the plaintiff’s lawyer to sue the defense attorney, arguing that the latter had caused “grievous emotional distress” to his client.  According to this story, the case involved the death of the plaintiff couple’s baby, and in the deposition the doctor’s lawyer

asked the father what “he thought might have happened to the baby, whether he felt the couple’s baby nurse or nanny had committed negligent homicide and whether his wife had been involved in the death.”

The wife, who was present at the questioning, became pretty much of a basket case shortly thereafter.  The latest update on the suit over the deposition comes from Overlawyered: the judge tossed the suit, and even sanctioned the plaintiff’s lawyer for filing a frivolous action, thereby striking a blow for a lawyer to remain free to be as big a jerk as he needs to be.

Reefer madness.  I wish my mutual funds had a quarter like this:  Marijuana seizures in Algeria for the first three months of the year are up 592% from the same period in 2007, says the Algerian police.  Which will be good news in London; according to the Drug War Chronicle, the newspapers in that city are rife with stories about the effects of a “skunk” marijuana.

This apparently is not your father’s marijuana (or, if you’re of my generation, your college roommate’s).  Typical of the testimony describing the differences is that of “Gerard,” the nom de plume of the author of this piece in the London Times.  Gerard, described as “a former banker who is now self-employed in his own design business” (and how’s that for a career path), is no stranger to the evil weed, consuming around “six joints of regular cannabis every week,” but he draws the line at “skunk,” advising us that “just three drags on a skunk joint will induce paranoia on a massive scale.” 

There’s a certain irony in discussing “paranoia on a massive scale” in the context of marijuana laws, as this 1950’s drug education video might attest:

See you next week.

Nothing out of Washington this past week, but you’ll want to make space on your calendar for later today, when the Supreme Court is scheduled to hear argument in a case involving the authority of Indian tribal courts.  Moving away from my typically smarmy comments for a moment, the argument in Kennedy v. Louisiana, scheduled for Wednesday, might be a bit more momentous for the people who typically read this blog:  It involves the constitutionality of imposing the death penalty for child rape. 

Speaking of the death penalty, we had a rare reversal of one here in Ohio this past week.  In State v. White, both prosecution and defense psychologists had concluded that the defendant was mentally retarded, and therefore exempt from the death penalty under State v. Lott.  The trial judge disregarded them based on anecdotal evidence that, among other things, the defendant could drive, cook eggs, and play “Mortal Kombat.”  The 9th District affirmed, but the Supreme Court reversed, saying they should have listened to the docs.  The opinion which included the memorable phrase, “It is not clear, however, what relevance White’s video-game skills have to mental retardation.”

In other words, you can tell your kids that the Ohio Supreme Court has concluded that just because they’re good at video games doesn’t mean they’re not retarded.

In other cases, the Supreme Court held in State v. Colon that the failure to include the mens rea requirement in an indictment was a “structural error,” which means it can be raised on appeal even if it wasn’t objected to in the lower court.  The biggie for the week, though, was State v. Cabrales, which substantially modified the Rance test for allied offenses.  I’ll have a full post on that tomorrow.

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Make mine a double.  Last October, Michigan State University student Amanda Jax decided to celebrate her 21st birthday by going drinking.  They wound up carrying her back to her dorm, and discovered her dead the next morning; an autopsy revealed she had a blood-alcohol content of .4594. 

As anticipated, the lawsuit is forthcoming, not only against the bar which served her, but those same friends who set out to go drinking with her at the beginning of the night, and carried her home at the end of it.  Alan Milavetz, the lawyer for Jax’s mother, struck the appropriate tone about how such a lawsuit will ultimately benefit society:  

“College kids aren’t drinking a few glasses of beer anymore,” Milavetz said.  “When you’re talking about cherry bombs and other drinks, alcohol has become a recreational drug, and it’s killing college kids. That’s not something society should allow. People say her mother just wants money, but Jenny Haag would trade anything to have Amanda back.”

What about the claims of her friends that Amanda “used to drink all the time,” with one stating that he had “seen or helped put Jax to bed drunk at least 50 times,” claims buttressed by the fact that Jax had a DWI in each of the two preceding years?

Milavetz said those witnesses are blaming the victim.

“You don’t serve a college kid to the point they can’t stand up,” he said. “Especially a college kid who is out drinking legally for the first time.”

The fact that the attorney found it necessary to phrase it as “drinking legally for the first time” pretty much gives the game away, don’t you think?

A lawyer’s lawyer.  Tom Jacobs died this past weekend.  I’d worked for and with Tom for about six years, and was partners with him for eleven more. 

Like most of us, Tom wasn’t a great lawyer.  Like most of us, he had some interesting clients and cases, but there wasn’t any great result that he ever obtained, any outstanding victory.  He was a little too obsessive about details; he could spend an hour and a half taking in a shoplifting case, and come away with five pages of notes.  And he didn’t have a great sense of business, as far as the law was concerned.  I remember we had one corporate client, whom we charged at the rate of $100 an hour because Tom had promised them when he’d signed them up ten years earlier that that’s all he’d ever charge them.  I told him I’d tried to work out a deal with the local gas station that I’d always buy gas there if they promised to always charge me the same thing, but they’d been pretty nonresponsive to the idea; unfortunately, the analogy fell on deaf ears.

But in all the time I knew Tom, he always worked hard, he always treated everyone with respect, he was a model of honesty and integrity, his client’s interests were always his top priority, and he always did his best for them.  Think about that for a second.  There are a number of lawyers that I know — lawyers who have obtained great results, outstanding victories — that I can’t say that about. 

Tom didn’t teach me much law — though probably more than I’d care to admit — but he taught me everything about being a lawyer.  I only wish I could say that I was as good at it as he was.  He was a true professional, and as far as I’m concerned, that’s as good a compliment as you can give a lawyer.

A reminder to be a bit careful about loss of consortium claims in this week’s case of Disciplinary Counsel v. Itta.  Itta had taken over a PI case from another lawyer in the firm, and filed suit, including  a loss of consortium claim because the notes indicated the client was married.  Somebody should have talked to the wife, or even the client; turns out that they were separated, and would subsequently divorce.  The client balked at including the wife in the settlement of the PI case, so Itta dismissed her claim with prejudice.  She found out about it, and he got a public reprimand for his troubles.

There were a couple of notable other cases out of the Ohio Supreme Court, one involving a search and seizure, the other charges on lesser included offenses.  I’ll discuss both of them in more detail tomorrow.  The US Supreme Court is on spring break — imagine what those party animals are doing down in Cancun — but they did have a conference on Friday to consider granting cert in a number of cases, and depending on what they do, I’ll have more on that, too.

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