The AG Blues.  With Ohio Attorney General Marc Dann rebuffing demands for resignation, Ohio’s pols are contemplating impeachment as a course of action.  As the Columbus Dispatch notes, legislators are going to have to read up on the process; Dann would be the first statewide Ohio elected official ever to be impeached and removed.  Actually, there are two ways to removed Dann:  impeachment, which under the Ohio constitution is for any “misdemeanor in office,” or “through a complaint signed by at least 603,413 qualified electors that is filed and tried in court.”  Jonathan Adler over at the Volokh Conspiracy analyzes the constitutional provision and concludes that the term “misdemeanor” really refers to the traditional meaning of “misdeed” or “instance of misbehavior.” 

At any rate, Dann’s going to need all the help he can get.  According to another article in the Dispatch, Dann’s office is the subject of no fewer than seven separate investigations.

The benefits of a college education.  The story about the bust of the 75 San Diego State University students caught in a drug bust convinced me that getting into college isn’t as hard as it used to be.  After all, how bright do you have to be to figure that maybe it’s not a good idea to rely on ” mass text-messaging” as a “crucial marketing tool in the dealing operation”?  You think maybe as you’re sending out that message, “Attn. faithful customers, both myself and my associates will be in Vegas this coming weekend. So stock up, we will be back Sunday night,” and then proceeding to “list reduced prices on cocaine sold in bulk quantities,” the thought might enter your head, “Gee, I hope this message doesn’t fall into the wrong hands”?  What, all the billboards were taken?

We’re winning.  It’s just a new definition of “winning.”  Grits for Breakfast has an interesting take on a story in the Economist about the effect of the decline in meth lab busts, which authorities credit to restrictions on the the manufacture and sale of pseudoephridine.   Especially notable was the line from the article, which focused on the experience of a particular county in Washington state, “So grim was the methamphetamine experience in Pierce county that some view the rise of crack cocaine with relief.”  As Grits notes, “when shifting drug users TO crack cocaine has been re-defined as a public policy success, that’s an interesting moment.”

Ideas for your next marketing campaign.  You’ll thank me.

No, I’m not talking about the Marc “Drag Me Out Kicking and Screaming” Dann Deathwatch, where Vegas has pegged the over/under on his resignation at four days.  I’m talking about what’s going on at the Ohio Supreme Court, where eight cases are being argued this week.  A thumbnail sketch of the big ones (links are to the court of appeals’ opinion):

State v. Ferguson.  The application of sexual offender registration and notification (SORN) requirements to defendants whose crimes were committed before the law went into effect has been the subject of much comment and litigation.  Back in 1998 in State v. Cook, the Ohio Supreme Court held that such laws weren’t ex post facto if applied retroactively, because they weren’t intended to be punitive.  Ferguson asks the Court to take another look at that issue, with the defendant arguing that the SORN laws are now so harsh that they have to be considered as punitive.  This could have some substantial ramifications, especially in light of the passage of the Adam Walsh Act here in Ohio, which resulted in the reclassification of some 18,000 sexually oriented offenders, who were previously required to register once a year for ten years; over 80% of them saw their registration periods increase under the new law.  And for many of those, their registration period had already expired.

State v. Bartholomew.  Appeal by the state on the burning question of whether a trial court can order restitution to be paid to the Ohio Victims of Crime Fund for money they paid to the victim. 

State v. Mays.  You know all those bullshit traffic stops resulting from the cop seeing the defendant’s car go ever so slightly over the line on the right-hand side of the road?  Well, as the Chambers Brothers once sang, Time Has Come Today.  A certified conflict case, where the question that’s been certified says it all:  “May a police officer who witnesses a motorist cross a right white edge line and without any further evidence of erratic driving or that the crossing was done in an unsafe manner make a constitutional stop of the motorist?”

State v. Veney.  Another certified case.  Criminal Rule 11(C) requires a trial court taking a plea in a felony case advise the defendant that by pleading guilty he’s waiving certain rights:

the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant’s favor, and to require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.

The courts have consistently held that “strict compliance” is required for advising a defendant of his constitutional rights, while only “substantial compliance” is required for the non-constitutional requirements.  In Veney, the court of appeals determined that the “beyond a reasonable doubt” part was a constitutional requirement, and vacated the plea because the judge didn’t advise the defendant of that.

State v. Swann.  The defendant on trial for felonious assault tried to present evidence that another person had confessed to the shooting, but the trial court excluded it because it didn’t meet the corroboration requirements of hearsay rule pertaining to declarations against interest.  The 10th District reversed, finding that the court’s ruling effectively deprived the defendant of his 6th Amendment right to present a defense.  The State argues that a judge’s general discretion in determininig what evidence is admissible doesn’t impact the defendant’s constitutional rights, but that argument is complicated by the US Supreme Court’s decision a couple years back in Holmes v. South Carolina.  In Holmes, as in Swann, the defendant had attempted to present evidence that another party had committed the crimes.  In Holmes, as in Swann, the court had excluded the evidence.  The South Carolina rule barred evidence of third-party guilty if it “merely casts a bare suspicion” on another person.  That’s not too much different from a rule which allows a judge to exclude evidence because he feels it wasn’t sufficiently corroborated.

With the exception of Bartholomew, all of those cases are significant ones.  I’m going to catch the oral arguments over the next couple days, and give you my further impressions after that.

A couple months back, I had a case where the police got a call from a gas station saying that my client was annoying customers.  The police responded, and saw my client standing by a building across the street.  They searched him and found some crack.  The basis of the search?  It was incident to his arrest for disorderly conduct.

Now, I could have argued that there was no probable cause to arrest for disorderly conduct.  Let’s face it, if “annoying” people was a crime, half the people you know would be in prison.  I took the easier tack: I pointed out to the judge that disorderly conduct was a minor misdemeanor, and under Ohio law, you can’t arrest someone for a minor misdemeanor.  She agreed, and tossed the case.

After last week’s decision in Virginia v. Gray, the validity of that argument’s a little more open to question. (more…)

Back in March of 2001, Victor Harris got into a car chase with the cops.  After they’d pursued him for ten miles (and to give you an idea of the speed involved, this took only six minutes), one of the officers rammed Harris’ car, causing him to lose control; the car ran down an embankment and overturned.

The crash left Harris a quadriplegic, so he did what any red-blooded American would do:  he sued, arguing that the ramming of his car constituted “excessive force” under the Fourth Amendment and was thus a violation of his civil rights.  The district judge tossed it on summary judgment, but the Fourth Circuit reversed, holding that there was a genuine dispute of fact as to whether the force was necessary. 

Ah, the marvels of techology!  Turns out that one of the officers had a video camera in his car, and captured the entire chase.  When everybody trundled off to the Supreme Court to argue the case, Harris’ lawyer was met with a barrage of questions by virtually every justice, the upshot being that no one in his right mind could come to any other conclusion but that Harris’ driving created a substantial risk of injury to every other driver, and anything done to get him off the road was necessary.  Well, no one in his right mind except for Justice Stevens, who was the only one of the Justices who dissented from the reversal of the Fourth Circuit’s decision.  Justice Scalia, who headed the majority, even helpfully included a cite to the video in his opinion.  (You can find the video here; RealPlayer is required.)

Enter Professors Kahan, Hoffman, and Braman, who’ve prepared an article on the case for the Harvard Law Review.  (The abstract is here, and the whole article can be downloaded from that site.)  The profs explain:

We showed the video to a diverse sample of 1,350 Americans. Overall a majority agreed with the Court’s resolution of the key issues, but within the sample there were sharp differences of opinion along cultural, ideological, and other lines. We attribute these divisions to the psychological disposition of individuals to resolve disputed facts in a manner supportive of their group identities.

The authors then argue that while the result of the case might be defensible,

the Court’s reasoning was not. Its insistence that there was only one reasonable view of facts itself displayed a characteristic of a form of bias - cognitive illiberalism - that consists in the failure to recognize the connection between perceptions of societal risk and contested visions of the ideal society. When courts fail to take steps to counteract that bias, they needlessly invest the law with culturally partisan overtones that detract from the law’s legitimacy.

I think that could be better, and more simply, put:  judges tend to have biases that do not reflect the broad cross-sections of society, because judges, by and large, do not come from the broad cross-sections of society.  Most come from the upper strata, and reflect those sentiments.  Over time, especially at the appellate level — because that is where the law is enunciated — the law begins to reflect those sentiments, too. 

Clarence Thomas is perhaps the only Supreme Court Justice who came from a hard-scrabble background.  For the most part, to put it delicately, his opinions don’t reflect that background, but there was one glaring exception to that:  Virginia v. Black, which upheld the constitutionality of Virginia’s prohibition of cross-burning.  The First Amendment problems with such a statute are obvious, and the Court had in fact struck down a similar Wisconsin law about ten years before.  But during oral argument on the case, Justice Thomas, in one of his rare forays that arena, forcefully made the point that the history of cross-burning in this country made it “unlike any symbol in our society.”

It’s doubtful that any of the other Justices could have made that point as forcefully as Thomas did.  That’s something to keep in mind the next time the subject comes up of whether it’s appropriate to have a “black justice” or a “woman justice” on the Supreme Court.  There is value in diversity, especially in the law, which in a free country depends to a large extent on the acceptance of its legitimacy by the people.  If the people begin to lose faith that the law refelcts their beliefs, the legitimacy is eventually undermined.

On another note, this is the 500th post since the first one appeared back in May of 2006.  For those of you who’ve found this site helpful and, hopefully, entertaining, my thanks.

Got an appellate brief that’s due today — I tell you, if it weren’t for the last minute, I’d never get anything done — so we’ll just skim off the cream from the stuff that’s clogging up the Internet right now.

Sticks and stones will always hurt me, and calling me greedy on talk radio does the trick, too.  With a hat tip to Overlawyered, according to the Mobile, Miss. Clarion-Ledger, “Two Mississippi lawmakers took the unusual step Friday of going to the House floor to say they felt aggrieved by the way one of their colleagues discussed them on conservative talk radio.”  What got their ire up was the member referring to a bill they’d recently sponsored as “the Lawyer Full Employment Act.”  The bill would have required that an attorney be present at the closing of any residential mortgage that involved an escrow transaction.

The great thing about the Internet, though, is it leads you to one thing after another.  A quick perusal of the Clarion-Ledger’s home page shows that there’s all kinds of funky stuff going down in Mobile.  A 17-month old baby had to be taken to the hospital because, “according to witnesses, the grandfather of the infant poured a small amount of Vodka into the infant’s sippy cup.”  And a mistrial was declared in the case of the local police chief, a 50-year-old man accused of having sex with a 14-year-old; for the second time, a jury hung on the case.  The police chief’s name was Jimbo Sullivan.  I am not making any of this up. 

Jesus, take the wheel.  From A Stitch in Haste comes this story, which surpasses by several orders of magnitude anything I’ve had in my Bullshit Traffic Stop of the Week:  In US v. Magana, a case out of the Western District of Texas a few weeks back, the cop had conducted a traffic stop because he believed he’d observed a defective tire.  Turns out the tire wasn’t defective.  Nonetheless,

the officer detained the driver, because among other things, the driver had a religious statue on his dashboard. The officer stated that in his experience and opinion, religious symbols are used to dispel suspicion of wrongdoing and are usually indicative of drug activity.

Well, at least it was a plaintiff’s verdict.  We’ve all heard the horror stories about auto accident cases where the defense lawyer will get up in closing argument, admit that his client is negligent, and suggest a sum that will adequately compensate the plaintiff (usually about 10% of what the plaintiff’s lawyer will suggest), and the jury will still return with either a defense verdict or zero damages.  Courtesy of On Point comes the story of a Ford Bronco rollover suit, where the jury awarded the plaintiff, who was left a quadriplegic, over six million dollars in damages — against her sister, who was driving the SUV.  The suit had been brought against Ford, of course, alleging a design defect in allowing the rollover.  Ford’s lawyer was a standup guy:

Even Ford’s lead attorney had said in his closing argument that if the jury found any liability, it should blame his client, not Marla Bear. “You shouldn’t brand her with her sister’s injuries,’’ Donald H. Dawson said. “I say that even if it hurts my client.”

The plaintiff termed the award “retarded.”

See you on Monday.

I found interesting the recent firestorm of criticism over the comments of Barack Obama’s pastor, the Reverend Jeremiah Wright.  For those who just emerged from a week-long stay in a sensory deprivation tank, YouTube, the Internet, and the talking heads on the cable news shows have regaled us with excerpts from Reverend Wright’s sermons, in which he waxes indignant on the subject of racism in American, his comments running the gamut from the mildly unsettling (America was “founded on racism”) to the appalling (calling this country “the U.S. of KKK-A”) to the absurd (the government infected blacks with the AIDS virus).

I found it interesting because I think those of us who practice criminal law have a unique vantage point on race in this country.  Crime is the issue along which the tectonic plates of race in this country shift.  Whether it’s James Byrd being dragged to his death, or a white lawyer being pounced upon and beaten savagely by a group of black kids, when we talk about crime, race is never far from the surface.  And oftentimes, such as in the case of the Jena Six, the issue is so incendiary that both sides come up with wildly divergent narratives as to what happened.

This is not without basis.  The black population of Cuyahoga County is about 30% of the total, yet if you go onto any floor of the Justice Center, the defendants sitting in the lobbies awaiting the results of their pretrials are overwhelmingly black.  No reasonable person can dispute that blacks commit crimes disproportionate to their numbers.  Whether this is because of economics or class or culture — and it is a combination of the three — it is ultimately perceived to be because of race.

But perception feeds reality.  Driving While Black is not a relic of the 1950’s, but a more recent phenomenon, in which black drivers are routinely pulled over for the most trivial of traffic violations, often resulting in “consent” or “plain view” seizures of drugs or other contraband.  The penalties for possession or sale of crack, a black man’s drug, are several orders of magnitude higher than the penalties for cocaine, a white man’s drug.  Georgia used to have a law mandating life in prison for a second drug trafficking offense; prosecutors, who were given the discretion of seeking it, did so five times more frequently for black defendants than for white ones.  The law was repealed in 1996, when the state came to the embarassing realization that of 573 defendants serving life imprisonment under the statute, a mere 13 were white.  It’s little wonder that while blacks make up 12% of the population and comprise 13% of drug users, they are 35% of those arrested for drugs, 55% of those convicted, and 74% of those imprisoned.  People talk about the devastation that crack has wrought on the black community, but give little thought to how that community might have been impacted by seeing one-third of its young males wind up in prison, on probation, or parole.

Which is why, if I had to distill my 30 years of practicing criminal law to a single observation, it would be this:  It never hurts a defendant to be white, and it never helps a defendant to be black.  Regardless of everybody’s best intentions, the perception of race and crime will dictate the reality.

I don’t know what to do about all this, and sometimes it troubles me.  I find myself lapsing into stereotyping clients, and I know judges and prosecutors do, too.  We have very little in common with the people we defend, prosecute, or sentence, and that eventually comes out.  Empathy should play a role in a justice system — it’s hard to decide what to do with a person’s life, which is basically what the system has to determine — without having any understanding of that person.  Yet we do it all the time.  After a while, the faces, the stories, the presentence reports of broken homes and school failures and juvenile adjudications, all run together. 

Without getting into the political stuff, there were times this year when I thought that maybe we had all reached the point where we could get beyond the racial issue.  I’m really not sure that we can.  I think, anymore, the perception and the reality have become indistinguishable, and neither is likely to change.

What a difference a quarter-century makes.  A few months back, I wrote about Fortune v. Castle Nursing, the 9th District decision upholding an arbitration provision in a nursing home contract.  The 70-year-old resident in that case had filed an action against the nursing home for negligence in allowing her to fall, but the court decided she hadn’t submitted sufficient evidence to show that the arbitration provision was procedurally unconscionable.  After all, the court noted, she was 70 years old, had a high school education, and had purchased two cars and a home during the three-score and ten years she spent shuffling along this mortal coil , thereby demonstrating her business acumen.  Plus, she’d had the agreement for two whole days before signing it. 

A couple weeks back the 8th District evened things out in Hayes v. Oakridge Home, holding that the arbitration provision there was both substantively and procedurally unconscionable, and reversing the lower court’s decision to enforce it.  Hayes presented the exact same type of situation — nursing home resident sues home for negligence in allowing her to fall — except for one thing:  Hayes was 94.  (more…)

Goofiness abounds.  From the Overlawyered comes the story of two private school teachers in Seattle who filed a complaint against the school for hostile workplace environment.  Whatever the merits of their other claims in that regard, they were substantially diluted by this one: 

Among the plaintiffs’ complaints was [the school’s] invitation to conservative commentator Dinesh D’Souza to speak as part of a distinguished lecture series.

D’Souza has been an opponent of affirmative action, and argues that the problems that blacks currently encounter are due not to racial discrimination but to cultural differences.  Whatever the merits of that view, it’s a pretty sorry state of affairs when the mere expression of it can constitute a hostile environment.  Take that back; it wasn’t D’Souza’s expression of those ideas, but the school’s simple invitation to him to discuss them to which the plaintiffs took offense.

There’s a fair amount of that going around.  Concurring Opinions has a piece on Keith Sampson, a student and employee of the Indiana University - Purdue University Indianapolis, who was disciplined under the University’s prohibition of racial harassment.  His crime?  Reading a book entitled Notre Dame versus the Klan.  The book focuses on a 1924 incident in which several Notre Dame students fought members of the Ku Klux Klan, a result largely of the latter’s anti-Catholic focus.  Two of his co-workers objected to Sampson’s reading the book — on his break, no less – apparently because it had “Klan” in the title.  Back about eight months ago, I reported on a story where the Massachusetts NAACP protested that a government manager had a coffee cup with the Confederate flag on it; actually, the coffee cup had a reproduction of a painting of Pickett’s charge on it (it had been purchased by the manager’s son on a trip to Gettysburg), and the Confederate soldiers were, for some inexplicable reason, carrying a Confederate flag, which was apparently discernible to those equipped with Superman-like vision.

Ultimate Plaintiff’s Zero-damages Verdict.  Apparently, the attorneys for US District Judge George Schiavelli must have thought he was pretty badly injured in a fall from a malfunctioning escalator in 2005, because they asked the jury to give him $21 million.  To be sure, the judge had to have operations on one knee and hip, and will be facing other surgeries, but the jury apparently figured that $21 million was a bit much, so they gave him a lower figure.  Lower by $21 million, to be exact.  His lawyer, after taking quick time out to calculate what 40% of nothing is, blamed it on The Way Things Are Nowadays:  “The bias against judges in today’s world is just palpable.”  Well, from reading the cases and talking with lawyers, it seems one of the best ways to wind up with a turned-off jury is to ask them to give your client what’s equivalent to the GDP of a Central American country. 

Presidential candidates and crack retroactivity.  In light of the Ohio primary this past week, it’s a good idea to articulate the three rules by which I run this blog:  (1) no political discussions, (2) be civil, and (3) no political discussions.  I’m going to deviate from that slightly because there’s one thing I find disturbing.  As this article from the Huffington Post notes, Hillary Clinton is opposed to the retroactive modification of the crack/cocaine sentencing disparity.  (Discussed here.)  As Doug Berman notes in his Sentencing Law and Policy blog, this puts Hillary on the same side as the Bush administration and the Republican members of the Senate Judiciary Committee.  Not meaning to be overly political, but on this issue at least, that’s not good company as far as I’m concerned.

Shooting the (hired) messenger.  Finally, Decision of the Day gives us the cautionary tale of Dr. Barry Swerdlow, a plaintiff’s expert witness in a medical malpractice case.  For a variety of reasons, mainly lack of preparation and an unwillingness to display the evasiveness of the normal expert when cornered, Dr. Swerdlow pretty much gave the game away on his deposition, and the plaintiffs got bounced on summary judgment for failure to establish proximate cause.  That, the plaintiffs claimed, was supposed to be Swerdlow’s job, so they then turned around and sued Dr. Swerdlow, their litany of woe including claims of fraud, professional malpractice, breach of contract, and tort.  The district court tossed it out, but the 10th Circuit reverses, over the dissenter’s protest that all the decision accomplishes is to “make candor an expensive option and risk incenting experts to dissemble rather than change their views in the face of compelling new information.”

I think the compelling new information that Dr. Swerdlow gleaned from his experience is not to get within five miles of a courtroom in the future.

Nothing going on in Columbus, but the US Supreme Court this week granted cert in two criminal cases.  Pulido v. Crones is a 9th Circuit habeas decision, and might afford the Court an opportunity to decide whether a defective jury instruction is a “structural error,” which of course always necessitates reversal, or whether it can be judged under the “harmless error” standard.  Arizona v. Gant involves the question of how far the police can go in searching a vehicle after arresting the occupants, and I’ll have more on that later this week.

Before we go onto the courts of appeals, some of you may be wondering why there’s a paucity of 1st District decisions any more.  Seems that they’ve changed their policy with regard to accelerated docket decisions:  those aren’t considered “opinions” any more, and aren’t published.  Last year, the 1st District handed down 226 opinions.  In the first two months of this year, they’ve handed down nine.  Two of them did make the cut this week, though… (more…)

Should the Ohio Supreme Court overrule its decision setting forth the standards by which the Ohio Supreme Court should determine whether to overrule its decisions?  That was the subtext of a decision by the Court last week in a workers compensation case, that could have major ramifications in criminal law.

(more…)