It doesn’t.  By the time Dowdell got there, Edwards already had two hours of drinking in the rear-view, and the two began “playing the dozens,” a game in which the participants trade insults.  It’s normally less lethal if done by 10-year-olds and the subject does not include each others’ girlfriends.  Long story short, Edwards winds up the worse for it.  He claims Dowdell had a gun, Dowdell denies it, and the judge in a bench trial sides with Dowdell, but nonetheless convicts him of simple assault and aggravated menacing.  Various life lessons are taught in the case, but a single legal one.  There’s a well-established presumption that a judge in a bench trial only considers relevant, admissible evidence, but the 8th District a month ago inIn re C.T. (discussed here) carved out a notable exception to that rule:  the presumption doesn’t apply where the judge admits evidence over defense objection.  Dowdell creates an exception to the exception:  where defense counsel doesn’t object to inadmissible evidence, the trial judge will be presumed to have disregarded it.

Three companion cases — State v. Rivera, State v. Theodus, and State v. Koernberg – present defendants and the victim, a 15-year-old girl, making more bad choices.  In the victim’s case, it is to run away from home, drink and do drugs, and hang out with people she doesn’t know; in the defendants’, it’s to think that it would be a good idea to have the girl perform oral sex on each of them.  That results in convictions for rape for each of the three under the subsection prohibiting sexual activity with someone who is “substantially incapacitated.”

I handled the appeal in Rivera, and the reversal of the convictions in all three cases is interesting on a number of levels.  First, there’s not a lot of law on what constitutes substantial incapacity.  The only Supreme Court case on the subject deals with it in the context of mental retardation, and a number of appellate court decisions have seemed to conclude that evidence of intoxication is sufficient.  To its credit, the panel here (the same panel heard all three cases) did not:  it does an excellent job of sifting through the evidence, noting that here there was little more than evidence that the girl had consumed some liquor, let alone that she was intoxicated, let alone that she was incapacitated, let alone that the defendants had reason to know that she was incapacitated, which is what the statute requires.  The decision is of necessity quite fact-specific, but it’s an excellent starting point if you’re defending a case like this.

The second interesting thing about the case was how differently it played out on appeal from how it played out at trial.  The girl had originally told everyone that the sex was consensual, and only a month after the incident began to claim that she was forced into it.  That reverse recantation became the focal point of the trial.  Most of the defense effort was expended on the consent issue, and they were successful in that:  the jury acquitted on the counts alleging rape, sexual battery, and gross sexual imposition by force (except for Theodus, who was convicted of the latter count), but convicted of incapacity counts for each of those offenses.  That’s not to fault any of the trial attorneys, it’s just to note that what might seem to be the significant issue at trial may not seem that way with the benefit of the 20-20 hindsight that an appellate lawyer brings to the case.  In any event, the court vacates all the convictions for insufficient evidence, except for Theodus’ GSI conviction, which it reverses and remands on manifest weight grounds.

The third interesting thing about the case is that the court even vacated the count of unlawful sexual misconduct with a minor, finding that the State’s failure to introduce any evidence of the defendant’s ages meant that it failed to meet the element of showing that the defendants were 18 years of age or older.  This despite the fact that none of the defendants raised that issue, at trial or in the appeals.  I argued that the conviction was a misdemeanor because the State didn’t show that Rivera was more than four years older than the victim, and the other appeals didn’t even raise that conviction.  Oh, well, as that great bard Ringo Starr once wrote, “with a little help from my friends”…

The War on Drugs is not a misnomer; it bears numerous similarities to actual warfare.  One of them is that each side constantly modifies its tactics.  One of the more recent ones developed by the police is the “knock and talk,” widely practiced in the projects:  police will go to an apartment where they suspect drugs are being held or sold, knock on the door, and engage in the tenant in conversation.  The purposes for doing so were the subject of some dispute — among the detectives — in State v. Clark.  One denied that the goal was to gain entrance to find contraband; it was simply “to engage a suspect in a conversation to determine whether the allegations about the individual have any merit.”  The other detective was more forthright:  he acknowledged that the purpose of the “knock and talk” was “to develop probable cause and make an arrest” and that the police conduct “knock and talks” when they lack probable cause for a search warrant.

In any event, the “knock and talk” proved successful in Clark’s case:  according to the police, when they asked Clark if they could come in to discuss the complaints about him, he allowed them in, where they observed substantial quantities of marijuana in plain view.  Clark denied that he’d consented to the entry, but the judge found that he had.  

Normally, that would be the end of it:  the appellate court will almost always defer to the factual findings of the trial court.  Almost.  As the panel in Clark notes, while it must accept the trial court’s findings of fact as true, applying those facts to the legal standard is the job of the appellate court.  The legal question is not merely whether Clark consented, but whether his consent was voluntary.  The court enumerates a list of eight factors to consider in determining that question, and noting that the detectives were accompanied by two other police officers and two uniformed security officers, finds this to be a a force which is “inherently coercive” such as to make any consent involuntary.  In fact, the deference to the trial court’s findings is far from absolute; the opinion notes that the officers claimed there was an “immediate” and “overpowering” smell of raw marijuana as they stood in the doorway.  Clark would have been just as aware of this smell, the court suggests, and in that light, the conclusion that Clark “would have voluntarily invited the police in to his apartment under such circumstances is highly suspect.”  The concurring opinion rightly cautions that “the use of a ‘knock and talk’ policy where police are unable to secure probable cause by other means, is a slippery slope that invariably erodes the protections of the Fourth Amendment.”

Last term, in Kentucky v. King, the Supreme Court upheld a search where the cops banged on an apartment door and yelled “police,” and, when they heard movements inside, broke down the door.  When I discussed the case, I contended that it would lead to “a further diminution of 4th Amendment rights.”  Kudos to the 8th for recognizing that, and protecting against it.

Down in Columbus, the Supreme Court handed down six criminal decisions.  Five of them were GPS cases, specifically, whether the police were required to obtain a warrant before placing a GPS device on a car and tracking it.  All five of the opinions were worded identically:  the cases were reversed and remanded for consideration in light of the US Supreme Court’s decision earlier this year in United States v. Jones.  We’ll discuss that in more detail later this week.

The other decision was State v. Lloyd, which presented the question of how a court is to evaluate an out-of-state conviction for a sexual offense in determining what duty the defendant has to register here in Ohio.  Lloyd had been convicted of aggravated sexual assault in Texas, and the court determined that the offense was “substantially equivalent” to rape.  It did so by using the “modified categorical” approach the Federal courts use in determining whether a state offense triggers the enhancement under the Armed Career Criminal Act, and the resulting application of the ACCA’s additional 15-year minimum sentence.  Whether that’s a good idea is another story; to borrow Rehnquist’s phrase, the case law on the ACCA is something less than a seamless web, and resorting to that for clarity in legal analysis is sort of like looking to Joyce’s Ulysses for lessons in clarity of writing.

The bottom line is that a court in analyzing the issue is not limited to a comparison of the elements of the crimes, but “may consult charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, jury instructions, and jury verdict forms, or some comparable part of the record” in determining whether the two offenses are equivalent.  After all that, it turns out that it didn’t matter:  in order to convict Lloyd of any sex offender registration, notification, or verification violations here in Ohio, the State had to prove that he had a duty to register as a sex offender in Texas, and it never got around to doing that.

In the courts of appeals…

In State v. Jones, the defendant was sentenced on September 22, 2011, but the entry wasn’t actually journalized until October 7, 2011.  The 1st District holds that this meant that HB 86, which went into effect on September 29, 2011, governed Jones’ sentencing.  It reduces the five-year sentence for weapons under disability to three years, per the reduced sentences for most 3rd-degree felonies provided for by HB 86.  It affirms the consecutive sentences, though, finding that the trial court’s statements at sentencing show that it found that the harm caused by the multiple offenses “was so great or unusual” that consecutive terms were proper… One of those awkward moments in voir dire occurred in State v. Brewer, where, when asked whether they knew any of the parties, one prospective juror, a police officer, ventured that he’d arrested the defendant on a previous occasion.  The 2nd District finds that defense counsel was deficient for failing to ask for a mistrial, but no harm, no foul, because the defendant’s prosecution for having a weapon under disability required proof of a prior conviction anyway…

In State v. Alt, the 8th District decides that the failure of appellate counsel to notify the defendant of the court of appeals’ decision is not good cause for the untimely filing of a motion to reopen the appeal under AppR 26(B).  It contains no reasoning, and cites a solitary case in which the defendant waited five years to file a motion to reopen, and never claimed that his attorney failed to notify him of the judgment, but only that the attorney didn’t advise him of the 26(B) procedure; here the application was two months late… In State v. Burnap, the 5th District says evidence of an OVI stop should’ve been suppressed.  The stop was based on a report by a gas station attendant that the defendant was intoxicated, but did not indicate bad driving by the defendant, and the officer didn’t make an independent observation that the defendant was committing the offense…

Ballsy decisions.  I always enjoy reading the 2nd District’s decisions, finding them to be almost uniformly well written and thought out.  And gutsy, too, as confirmed by their decision last week in State v. Anguiano, in which the trial court had initially overruled the defense motion to dismiss drug trafficking charges for pre-indictment delay, holding that the defendant hadn’t shown actual prejudice, then dismissed the indictment anyway for the following reasons:

1) the unexplained delay in the indictment; 2) the State’s argument regarding the protection of a confidential informant’s identity did not justify delaying the indictment; 3) the memories of the witnesses could be impacted negatively by the delay; 4) Anguiano pled guilty to an offense in 2009 for which he was then serving a community control sanction and was showing positive steps toward rehabilitation; 5) Anguiano’s offenses were low level felonies for which community control was the likely sanction; accordingly, the trial court found that no additional deterrence or punishment could be obtained by prosecution of the instant charges; 6) the apparent inefficiency of the State in processing its caseload; and 7) the trial court noted the ethical consideration for prosecutors which emphasizes that the primary duty of a prosecutor is to seek justice, not merely to convict.

The 2nd District affirmed, finding that the statements given by the trial judge in dismissing the indictment — “while deference is usually given to the charging decisions of the prosecutor, such deference is not unlimited,” and that the court “possesses a duty to measure justice equally as to all parties” — are “correct statements of law.”

And a special shout-out to the trial judge, who kicked out two other cases for the same reason.  The 2nd upheld those, too.

Homework assignment.  As the 1st District noted in Jones, one of the requirements for imposing consecutive sentences is that the judge find that “at least two of the multiple offenses were committed as part of one or more courses of conduct.”  Your task is to come up with a scenario in which two or more offenses could not be committed “as part of one or more courses of conduct.”  Good luck.

We saw some new stuff.  The Martin Luther King Memorial was just okay; both of us thought they could have done more with it.  And we saw some old stuff.  There’s only one name on the Vietnam War Memorial that I know:  Joey Meyer.  I went to high school with him.  He was a year behind me, and dropped out before he graduated and joined the Marines.  He died on the 4th of July, 1969.  I’ve looked, but I’ve never been able to find his name.

The Lincoln Memorial is probably my favorite.  The statue is wonderful, and there’s the inscription of the Gettysburg Address on one wall, and his Second Inaugural on the other.  The latter is always remembered for the “with malice toward none, with charity for all” line, but the part I’m always drawn to comes a paragraph before that.  The war was to end a month later, and its outcome wasn’t in doubt, but still Lincoln recognized the roots of the conflict, where he posed the possibility that God might will the war to continue “until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword.”

The American History Museum had a special exhibit on Thomas Jefferson and the slaves at Monticello.  Jefferson as a slaveowner was hardly a novelty; twelve of our presidents owned slaves, and eight of them owned them while serving as president.  Of course, none of the other ones wrote stuff about all men being created equal, either, and in Jefferson’s prolific writings we can see him wrestling with the slavery issue.  And ultimately losing.  He died owing about a hundred thousand dollars (about a million to us) , and under the impression that a public lottery would be held to pay off those debts and allow the family to keep Monticello.  Didn’t happen.  About three years later virtually all of the property was auctioned off.  The exhibit had a clipping of the announcement of the sale:  the lead item was the “130 valuable negroes” who could be purchased, the ad noting that “the negroes are believed to be the most valuable for their number ever offered at one time in the State of Virginia.”

We stopped at the Antietam Battlefield, about an hour’s drive out of Washington, on the way home.  I’m a Civil War buff.  I grew up about 30 miles north of Gettysburg, and have been to the battlefield there God knows how many times.  For my social studies project in high school, I did a 3-dimensional map of the battlefield, with plastic overlays showing the positions of each brigade of each army over the three days of the battle.  That was accompanied by a 37-page typewritten paper on the subject.

I didn’t date much in high school.

I like Antietam better, though.  Gettysburg was a fascinating battle, but it’s weird to be standing on Cemetery Ridge, at the precise spot where Pickett’s Charge was finally repulsed, and look to your right and see a McDonald’s.  Antietam isn’t like that.  It probably gets 5% of the visitors that Gettysburg does, if that; in the two hours we spent touring the battlefield, we never saw more than a half dozen people in any one place.  So there’s no commercialization; it’s just about exactly the way it was when the two armies fought there on a single September day 150 years ago.  Over twenty-three thousand of them fell dead or wounded — more than the casualties America suffered in the Revolutionary War, the War of 1812, and the Mexican War, combined.  That was a small part of the butcher bill for being able to sell those “130 valuable negroes.”

See you tomorrow, when we’ll go back to talking about law.

A couple years ago, the 8th District decided in State v. Harris that the failure to impose a mandatory fine or a mandatory drivers license suspension in a drug case rendered the sentence void.  This was during the heyday of the “void sentence” debate, which stemmed from the Supreme Court’s decisions holding that failure to properly impose post-release control made the sentence a nullity.  The problem with this was noted in several quarters, including here:  if a sentence was void, did that mean the conviction was, too?  Since there wasn’t a valid sentence, and hence no final order, did that mean the original appeal from the conviction was void as well, removing any res judicata effects.  The court finally peered over the abyss into the logical consequences of those decisions, blinked, and held in State v. Fischer that only the PRC portion of the sentence was void.  Last week, the Supreme Court reverses the 8th District in State v. Harris, holding that only the mandatory fine and drivers license suspension portions of the sentence are void, and thus require resentencing only to those issues.

Pardon me, but is this trip necessary?  Doesn’t it make more sense to hold that if a judge fails to impose a fine, or a license suspension, that makes the sentence voidable, and if somebody appeals, you send it back and fix it, and if they don’t, you don’t?  I understand that you can’t do that with PRC, since the only way to get around the separation of powers problem of having the Adult Parole Authority impose a prison sentence is to perpetrate the fiction that it’s the judicial branch that’s actually imposing the sentence by “authorizing” the APA to do it.  But there’s no need for that fiction with stuff like fines and suspensions, and continuing the “void” charade is going to lead to problems down the road, just as it did with PRC.

Let’s see what problems the courts of appeals are encountering, and how they’re resolving them…

One more reason to go to the gym:  in State v. Dennison, the court affirms defendant’s conviction of voyeurism for taking pictures of other nude men in the locker room of the YMCA, rejecting defendant’s argument that the men had no reasonable expectation of privacy with respect to being nude in a locker room.  Nude, no, being photographed, oh yeah… The trial court’s imposition of a condition that defendant not consume alcohol during the period of his probation after conviction of two counts of violating a protection order didn’t constitute cruel and unusual punishment, the 10th District holds in State v. Tobin… Good discussion of the difference between spousal privilege and spousal competency in State v. Greaves.  The defendant was charged with having a weapon while intoxicated and domestic violence (threatening his wife), and the trial court excluded her testimony.  The 6th District reverses, holding that there were no confidential communications re the privilege issue, and that the spouse wasn’t incompetent to testify because the rule contained an exception for crimes against the spouse…

In State v. McFarland, the defendant, a resident of Erie County, was charged with importuning and disseminating matter harmful to juveniles for attempting to hook up with someone he thought was a minor in Lucas County.  Lucas County had the Erie County sheriffs seize McFarland’s computer, and after he’d pled no contest to the charges in Lucas County, Erie County indicted him for the child porn they found on his computer.  The trial court kicked it out on double jeopardy grounds, and the 6th District affirms, holding that where several offenses are committed in different jurisdictions as part of a course of criminal conduct, the defendant can be prosecuted in any of the jurisdictions, but not in more than one… Failure of the police to comply with the requirements set forth in RC 2933.83 for conducting a photo identification process is not a basis for suppression of the identification, the 1st District says in State v. Ruff… The 12th District rules in In re N.A. that where the issue of the juvenile defendant’s competency was raised, the trial court committed error, and defense counsel was ineffective, in not addressing it further…

The 2nd District’s decision in State v. Drane is notable because it resolves a couple issues that I haven’t seen addressed elsewhere.  First, if an appeal is resolved on an Anders brief, the court allows reopening of the appeal on grounds of ineffective assistance of appellate counsel, is that appeal limited only to those issues raised by the motion to reopen, or can the defendant raise any issues, including ones that the court previously considered in its Anders review?  Any issues, the court decides, because the defendant didn’t have the assistance of counsel in framing the issues the first time around.  Second, can a judge include in the sentencing entry that it disapproves of the defendant receiving transitional control?  Yes, at least in the 2nd; they’ve held that it’s premature at that point.  The judge can always disapprove of transitional control when the APA inquires about it.

Apparently, there are some prosecutors in Cuyahoga County who don’t understand the difference between civil and criminal cases when it comes to discovery.

There’s a big kidnapping/rape case going on in a courtroom up here, and the defense investigator was just served with a subpeona by prosecutor, which included a demand that the investigator provide the following documents:

Please provide a certified copy of all interviews (whether audio/visual or written), reports and notes taken in regards to the above matter.

Please provide any contractual agreement and fee schedule entered into by yourself and any attorney in the above matter.

Please provide a comprehensive CV which includes all criminal cases that you have worked on in Cuyahoga County and all cases that you have testified as a witness for the defense.

Where to begin?  First, it’s incredibly amateurish.  Note that the copies are supposed to be “certified.”  By whom?  Normally, certification is reserved for public records, which are certified by the public agency, or provided for by statute.  (For example, there’s a provision for allowing medical records into evidence based upon the hospital’s certification that they’re genuine and authentic.)  I can’t certify my own records, and neither can an investigator.  What’s more, a subpoena duces tecum can require a party to produce documents, but it can’t require a party to create one.  I doubt if the investigator has a “comprehensive CV” which includes all criminal cases she’s worked on.  The contract and fee schedule bit are similar to standard requests of that nature in civil cases of expert witnesses, for the obvious purpose of showing possible bias:  knowing that Dr. X is getting paid $10,000 a day to testify that the plaintiff’s mental distress is directly attributable to Kellogg’s negligently leaving out the toy in the cereal she bought for her kid might have an impact on how that testimony is treated by the jury.  But if the investigator testifies at all, it’s not going to be as an expert.

A bigger problem is that the request is far in excess of anything allowed by the discovery rules, even with open discovery.  CrimR 16(H)(5) allows the prosecutor the right to copy or photograph “any written or recorded statement by a witness in the defendant’s case-in-chief, or any witness that it reasonably anticipates calling as a witness in surrebuttal.”  In other words, the only statement – forget notes — that the state is entitled to are those of witnesses who’ll be testifying at trial on the part of the defense.  As for just about anything else, that’s flatly prohibited by 16(J)(1), which specifically provides that “material subject to work product protection” is not subject to disclosure, including “reports, memoranda, or other internal documents made by the prosecuting attorney or defense counsel, or their agents in connection with the investigation or prosecution or defense.”

The most astonishing thing about the request, though, is its cavalier disregard for not just work product, but attorney-client privilege as well.  The request, after all, isn’t limited to interviews with witnesses; it would include any interviews the investigator has conducted with the defendant himself, or notes of conversations with the defendant.  As an agent of the defense attorney, the investigator’s conversations with the defendant fall within the attorney-client privilege as well.  In fact, the request could be deemed to include the investigator’s conversations with the defense attorney as well.

So, in addition to being far in excess of anything permitted by the rules and violating work product and attorney-client privilege, the request also tramples upon the defendant’s 5th and 6th Amendment rights.  Not bad for an afternoon’s work.

I’m really at a loss to understand this.  When I first heard about it, I thought it might just be the work of a prosecutor who’d decided to make the jump to civil practice and figured he’d get an advance look at what it was like.  Upon more reflection, I thought it would have had to have been approved at the higher levels, but I know most of the people over there, and I can’t think of any of them that would pull something as goofy as this.  (I’d be willing to bet a Benjamin or two that whoever came up with this didn’t run it past the folks in the appellate division.)  Whatever happened, somebody over there ought to call a quick halt to this.  The 8th District and, to a degree, the Ohio Supreme Court have been increasingly critical of the prosecutor’s office here, and if they get wind of this, it’s not going to make things any better.

*   *   *   *   *

Then again, this might fall into the category of Everybody’s Entitled to Do One Dumb Thing.  Mine was earlier this week, when I forgot to set up the Case Update so that it would post on Monday.  You’ll see it tomorrow.  It’ll be my last post of the week; my wife and I are taking a little weekend jaunt to DC.  The Case Update for next week will be delayed until Tuesday, assuming I remember to post it.  That means that there will be no post on Monday, May 14, even though it is the 6th anniversary of my first post here.  In lieu of flowers, please send cash.

Take John Moore, for example.  Please, as the old joke goes.  He threatened his attorney at a pretrial, he had an extensive record, and seems to have been an all-around pain in the ass, so when he was convicted of aggravated robbery and kidnapping back in 2001, the judge evinced no equivocation in giving him maximum consecutive sentences of 33 years.  A year later, the court of appeals affirmed the convictions, but remanded for resentencing to correct some technical errors.  The court conducted the resentencing by video and imposed the same 33 years, but that got reversed, too, the 8th holding that this violated Moore’s right to be present.  The judge did another resentencing, gave Moore another 33-year sentence, but Moore then won a new trial through a habeas proceeding in Federal court.  He was convicted again, at which point the judge (a) threw up his hands and gave Moore time served, plus an apology, or (b) gave Moore 33 years in prison.  If you picked (a), you’re the captain of the Dummy Team this week.

But all for naught; last week, in State v. Moore, two judges on the panel found that the sentence was an abuse of discretion and vacated it yet again.  The court’s analysis of this doesn’t extend much beyond noting that Moore’s co-defendant, who was the person who actually had the gun during these offenses, got only nine years, and the inference that this might have had something to do with the fact that the co-defendant pled guilty, while Moore insisted upon a trial.  In any event, if Moore is ultimately to wind up with a 33-year sentence, it will have to be imposed by a different judge; the original judge is slated to become the county prosecutor next January.

A judge wants to give Tony Quinones five years for a rape and sexual battery he’s convicted of in 2009, so imposes three years for the rape and two for the battery and runs them consecutively.  The two offenses should have merged, the 8th held a year later, and so remanded the case for a resentencing.  The judge announces that it was her intent to make sure Quinones did five years for the crime, and so imposes that for the rape.  Quinones appeals that, claiming vindictive sentencing, but in State v. Quinones the court concludes that the judge “adequately rebutted the presumption of vindictiveness by stating that the increased sentence for rape was intended to effect the court’s original desire to sentence Quinones to five years in prison, regardless of what counts may have survived.”

But wait!  Good news for Quinones.  In the Federal system, he would have been screwed; there, a trial judge is permitted to consider the sentence as part of an overall “package,” i.e., to look at the defendant’s offenses as a whole and fashion an appropriate sentence.  If one of the convictions is reversed on appeal, the trial court can still impose the sentence “that appears necessary in order to ensure that the punishment still fits both crime and criminal.”  But that’s not how it works in Ohio.  We don’t follow the sentencing package doctrine; the sentence for each offense is separate, and so when Quinones’ sentence for sexual battery went bye-bye, all that was left was the three years for the rape.  The court reverses and remands with instructions to impose that three-year sentence.

Finally, if you’re a judge and you want to send someone to prison, be careful who you listen to.  The prosecutor in State v. Cruz tells the judge that Cruz is facing mandatory time on her convictions of deception to obtain drugs, so the judge obligingly gives Cruz a mandatory three-year prison sentence.  Turns out there’s only a presumption of prison time for the offense.  The State defends the result with the ridiculous argument that “there is nothing in the record to suggest that the trial court’s decision was unreasonable, arbitrary, or unconscionable” – as though the sentence being wrong isn’t enough – but the court rightly notes that there’s a difference between mandatory and nonmandatory sentences, especially with regard to judicial release, and remands.

I’ve mentioned before that one of the considerations in trying a case to the bench is that you give up certain appellate issues by waiving a jury, and that shows up in two cases.  One is State v. Goss, a appeal from burglary conviction in which the sole assignment of error is manifest weight of the evidence.  If Cervantes had written about appellate law, he would have had Don Quixote writing a brief on this subject rather than tilting at windmills, and it’s beyond futile when the fact-finder was a judge, not a jury.  State v. Wilson presents a complicated and rather weird fact pattern regarding a conviction for attempted murder, and the application of the castle doctrine, which presumes that a defendant acted in self-defense if he’s in his own home (or car) and shoots an intruder.  The facts weren’t the best for the defense — the defendant shot the victim twice, five minutes apart — and the court rightly notes that this was simply an issue of credibility:  if the judge believed the defendant, the shooting was justified, if he believed the victim, then the presumption of self-defense was overcome.  But there are a number of good legal issues with the castle doctrine, especially with the jury instructions, and if there’s no jury, you don’t have those issues on appeal.  I’m not suggesting that either attorney was wrong to waive a jury; there are a lot of factors that go into that decision.  I’m just saying that one of them should be how the case might play out on appeal.

Speaking of appeals, State v. Grice serves as a reminder that just because the clerk’s office tells you the whole record was filed on appeal doesn’t mean that it was; it’s a good idea to go over and check.  The first three assignments of error relate to a motion for new trial, which was based on several affidavits of co-defendants.  The affidavits were attached to the motion, and there’s no question they existed; in fact, as the opinion notes, the transcript shows the judge reading from one of them during the hearing.  Alas, they weren’t included in record, so that disposes of those assignments of error.  A similar fate befalls the assignment regarding the testimony of a police officer as to a claimed match between footprints found on a door and the treads on Grice’s shoes.  The photographs of that comparison were admitted as trial exhibits, but the exhibits aren’t contained in the record.  Finally, Grice argues that the judge’s written jury instructions varied from the oral ones given the jury, but, you guessed it, the written instructions weren’t included in the record, either.  Grice does hit paydirt with his 11th assignment of error, the panel holding that the trial court couldn’t impose court costs in the journal entry if it didn’t do so at the sentencing hearing, but his relief is limited to a new sentencing hearing, the only purpose of which is to allow Grice to try to talk the judge out of imposing costs.  At least he, unlike some of his brethren this week, doesn’t have to worry about prison; the judge gave him community control sanctions.

These cases have allowed me to read a lot of competency reports, however.  They’re pretty much the same:  they’ll give a history of the client’s mental illness, then the results of a series of questions posed to him to determine his understanding of how criminal proceedings are supposed to work.  The report usually ends with a finding of competency, especially given that the threshhold for that appears to be the ability to distinguish the judge from a rutabaga.

But the reports (and the case law) also focus on the client’s ability to assist his attorney, so I was somewhat puzzled when I ran across this story (h/t to Legal Blogwatch) about a murder trial in which the judge has ordered the defendant, Joshua Monson, to be seated at a separate table from his lawyer.  Hard to assist your attorney if you can’t talk to him.

It seems that Monson is to blame for this problem.  He’s on his fourth lawyer, having stabbed the previous three with pencils he’d smuggled.  (Lowering the Bar’s take on this produced the paradigmatic example of “the headline tells it all” story:  “Man Who Stabbed His First Two Lawyers With a Pencil Stabs Another Lawyer With a Pencil,” although in the last incident it seems Monson used the lawyer’s own pen.)  It should be noted that this didn’t take place in a holding cell or at the jail; the third incident occurred when Monson stabbed his lawyer in the side of the head while the prosecutor was giving his opening statement.

But things are going well in Monson’s murder trial, at least for now; as the news story recounts, with no hint of irony, “No lawyers were injured on Thursday as a murder trial got under way for an Everett man accused of stabbing three of his previous attorneys.”  This naturally led to Lowering the Bar’s headline, “Fourth Lawyer Not Yet Stabbed With Pencil in Trial of Man Who Stabbed Three Lawyers With a Pencil.”

And here I thought I made some bad career decisions.

For the woman who has everything.  My wife’s got a birthday coming up, and I’ve been wracking my brain trying to come up with what to get her.  As you might imagine, I’ve already showered her with all the diamonds and furs and other baubles that any women could want.  Then again, living with me isn’t exactly a day at the beach, so I’ve got to come up with something. 

Then I came across several stories about how gun sales are at an all-time high in this country, and I remembered this picture of actress Summer Glau from the TV series The Terminator, and an idea formed:  I’ll get Summer Glau for my birthday!  Hah-hah, just kidding, honey.  No, I’ve decided to get my wife a gun.

That’s not as far-fetched as it sounds.  As this story notes, there are some 15 to 20 million women packing heat in this country.  In fact, some gun stores now carry a line of weapons specifically designed for women.  Bud’s Gun Shop, for example, which has the slogan — wait for it — “More Bang for the Buck,” features a “Guns for the Ladies” department; the first item in the catalogue is a .22 long rifle with a pink stock.   That’s not to suggest that the marketing is sexist; while no self-respecting male would be found with such a weapon, some of the other items in the Ladies Department, such as the Sig Sauer Compact 9 mm, could be carried around without having an adverse effect on one’s testosterone levels.  It should be noted, though, that the Smith & Wesson .38 Special revolver with the pink handle is currently out of stock.

Now, I know what you’re saying.  Sure, Russ, she’ll no doubt love that nifty little Walther PPK .38, but accessorizing a gun is different from figuring out the appropriate scarf or pair of shoes to fit your wardrobe.  Enter Woolrich’s, a company selling clothes for close to two centuries, which, according to this story, has decided to enter this market with the Elite Concealed Carry line.  No, I’m not making that up:  also called “covert fashion,” it features things like a lightweight water-resistant vest which “includes a stealth compartment in front so the wearer can appear to be warming his hands while actually gripping a pistol in a waistband holster.”

Is this a great country or what?

Woolrich’s line seems directed at men, but it’s probably only a matter of time before the little black dress has a compartment for carrying around that Glock.  The one with the night sights, of course; never know what the little lady is likely to encounter while on an evening out on the town.

Then you being reading the State’s sentencing memorandum, and this is how they describe the first file they found on his computer:

“This is a compilation of video clips where the predominant theme is that of an adult nude male standing either over or in front of nude pre-pubescent females and ejaculating into either their mouths or their vaginal areas.  In many of the clips the girsl are either crying or grimacing and in those instances the clip is repeated over several times.  In a number of clips, the suspect is either holding the head of the child or the hair of the child, forcing that child to participate.  In a number of other clips, the adult males are shown vaginally penetrating very young pre-pubescent females.”

You scan the rest of the page, see a reference to another video where “the ages of the prebuscent girls range from 2-12 years old,” and set the memorandum aside. 

Jesus, you think to yourself, It’s a good thing the guy pled or I’d have had to watch this stuff.

Disproportionate sentencing comes in two types:  between offenders and between offenses.  With 34 judges up here in Cuyahoga County, we have plenty of examples of the former.  A couple years back, one lawyer representing a client who’d got caught up in the semi-annual child porn sting tracked the case of every other defendant who’d been nabbed at the same time.  When his client got a 20-year sentence, he was thus able to present a record for the court of appeals showing that the other defendants got between probation and four years.  This was at the time when the 8th District’s sentencing analysis du jour had them reviewing excessive sentences to determine whether they were “outside the mainstream of judicial practice.”  But the panel was able to point to another defendant who’d also gotten a 20-year sentence.  It turned out the same judge had handed down both sentences, and she was one of the judges caught up in the county corruption probe.  So, for one shining moment which will hopefully be marked by future generations, the mainstream of judicial practice here was established by a judge who was ensconced in a Federal prison.

But disproportionate sentencing can also arise between offenses.  In 2010, about eighteen hundred people were sentenced under the Federal porn statutes.  They received an average sentence longer than those convicted of any other Federal crime except murder and kidnapping.  Other studies have shown that at the state level, child porn offenders often receive longer sentences than defendants convicted of sex crimes against children.  One former prosecutor in Kentucky recently lamented about his client’s 16½-year sentence for possession of child pornography, noting that it was more than three times as long as the sentence he’d received a decade earlier for molesting three children. 

But this raises the obvious question:  why?  To be sure, on the national level it’s the result of a Congress intent upon proving its law-and-order bona fides by enacting increasingly harsher penalties.  But at the state level, the truly Draconian sentences — five years ago, the Supreme Court denied certiorari in a case where an Arizona man had received a 200-year sentence for child porn — are largely the result of some judges imposing “max and stack” consecutive sentences.

On an empirical basis, there doesn’t seem much justification for that.  There are some claims that a large number of child porn offenders also molest children, but the methodology of studies showing that is open to serious question, as I discussed here.  There’s an argument that punishing those who possess child pornography will eventually dry up the market for those who produce it, but that theory didn’t work out real well with drugs, did it?  Besides, you’re talking about a world-wide market, and in a number of countries child pornography isn’t even illegal.

I think I know the reason for harsh sentences.  I’ve been doing criminal law for a long time, and most crimes, why people commit them, I understand.  I understand robbery and theft, and financial crimes; that’s easy.  Even violence I understand; some people have a hard time controlling their temper, and some people are just evil. 

But I don’t understand child pornography.  I don’t understand how anyone would want to look at the video I described above.  (The description is word for word from the State’s sentencing memorandum in a case I handled.  And it’s not the worst one.)  I simply don’t have a clue why someone would do that.  I think that goes a way towards explaining why you see some of the sentences you do:  the judge just reacts viscerally to something that he finds unimaginable and inexplicable.

At any rate, with the crack/powder cocaine disparity out of the way, the sentencing debate has now focused on child pornography.  Especially at the Federal level, there’s a backlash against the severity of the sentences.  Two years ago, a survey of Federal judges found that seventy percent believed the sentences for receipt or possession of child pornography were too severe.  (By the way, under Federal law, receipt of child pornography carries a mandatory 5-year minimum sentence; possession of child pornography does not.  Go figure.)  Forty-five percent of child porn sentences came in below the guidelines, more than twice the rate for all other crimes.  The Sentencing Commission is wrapping up a three-year review of the issue, and will present its findings to Congress at the end of the year, and will probably suggest some reduction in punishment levels.

Good luck with that.  The weapon of choice in political advertising is the meat cleaver, not the stiletto, and the first thing a Senator or Representative viewing the Sentencing Commission’s report is going to envision is an ad featuring a bad picture of him on  a black background with the words “SOFT ON CRIME” emblazoned across the screen and a narrator intoning that “Jim Hardfish voted to REDUCE penalties for child pornography offenders.”  There’s little reason to believe that the Sentencing Commission’s report is going to produce a reasoned, intelligent discussion of the penalties we should be imposing on people who possess child pornography. 

The problem is, I’m not sure if the subject lends itself to a reasoned, intelligent discussion.

Johnson, by refocusing attention on the defendant’s conduct, changed all that.  Now, appellate courts have to parse the record to determine whether the crimes were committed with the same conduct, as the 8th District did last year in State v. Waltzer:   the defendant had pushed his wife down on the porch, then followed her into the house, grabbed a knife, and cut her.  The change in location and elevation of violence, the court held, was enough to allow conviction on two separate offenses. 

But Waltzer came up on an appeal from a trial.  What happens when the case comes up on a plea, especially where neither the judge nor the parties even raised the issue of allied offenses?

The defense’s failure to raise the issue at the time of sentencing waives it and allows for review only of plain error, but that doesn’t mean anything; back in State v. Yarbrough the Supreme Court held that sentencing a defendant on two offenses which should have merged, even if concurrent sentences are imposed, is plain error.  That leaves the appellate court having to sort out what happened.

And that’s not easy, as the 8th District recognized last week in State v. Baker, the opinion lamenting that “the record is nearly devoid of any facts.”  Baker was accused of raping his daughter over a period of time, and pled to three counts of rape and two of gross sexual imposition.  He claimed for the first time on appeal that two of the rapes should have merged with the GSI’s.  The court notes that “Johnson ushered in a new era where trial courts are always required to delve into the factual underpinnings of the case in order to resolve the allied offense issue,” and grimly sets out on that venture.

One way of handling the problem at the trial level is for the parties to stipulate whether the offenses merge, a procedure specifically sanctioned by the Supreme Court two years ago in State v. Underwood.  The opinion in Baker makes an interesting point here:  that such a stipulation

merely supplants an allied offense issue with an ineffective assistance of counsel one — for mistakenly advising the defendant to agree to multiple sentences for a single crime. Without the facts of the defendant’s conduct in the record, the reviewing court will be unable to resolve the ineffective assistance of counsel claim either.

My initial reaction was that an IAC claim would be a hard sell, especially in the context of a plea bargain; the state may legitimately offer a plea to reduced charges on the condition that they will be considered as separate offenses.  But the opinion might have a point, in light of the Supreme Court’s decisions earlier this year in Lafler v. Cooper and Missouri v. Frye.  Those decisions (discussed here, here, here, and here) basically establish a right to effective assistance of counsel at the plea bargaining stage.  If an attorney can be deemed ineffective for failing to properly advise his client on whether to plead because he misunderstood the law on homicide, as occurred in Cooper, it’s not too difficult to envision a claim being made on the basis that the lawyer improperly stipulated to non-merger of the offenses because he misunderstood the law on allied offenses.  In any event, Baker’s caution that “the better course would be for the state to include in the record the facts of the defendant’s conduct, satisfying the Johnson  test, prior to sentencing” is worth heeding.

But woulda coulda shoulda aside, the court’s still confronted with figuring out how to resolve the allied offense issue.  That task is complicated by the fact that in the past year the 8th has come out with two contradictory decisions on that.  In State v. Corrao, the defendant pled to seven counts of pandering sexually oriented material involving a minor and sixteen of illegal use of a minor in nudity-oriented material.  The court found it impossible to determine whether any of the offenses were allied, found plain error in the trial court’s failure to make any inquiry on that, and vacated those sentences and remanded the case back for determination of whether any of the offenses merged. 

But earlier this year the 8th took a different approach in State v. Lindsey (discussed here).  In that case, Lindsey had pled to forgery and uttering, and claimed on appeal that the two should have merged.  Again, there was no way for the appellate court to determine that issue from the record, but instead of remanding for that determination, the court found that the defense’s failure to offer any evidence on the issue in the trial court precluded a finding of plain error.

What to do?  The Baker court decides to come down on the side of Corrao, and then waded into the issue of whether the offenses should have merged.  It’s a hard slog:  the indictment alleged the same year-long span for the first 30 counts, including the two rapes and GSI’s, with no distinction between them.  As typical in this county, the bill of particulars was no help, since it contained the exact same language as the indictment, with the place where the offenses were supposed to have occurred thrown in.  The parties and the court apparently tried to use the pre-sentence report to resolve the issue, but that didn’t indicate what conduct aligned with which offenses.  The court finally throws up its hands, finds that the trial court committed plain error in failing to address the issue, and, as it did in Corrao, vacates the sentences and remands for that determination.

Some lessons to take away from Baker

• If you’re the trial judge, you’ve got to make sure there’s enough in the record to allow the appellate court to determine whether the offenses should have merged.  If you don’t do it the first time, you’re going to have another opportunity.
• If you’re the prosecutor, treat the allied offense issue the same as you would a no contest plea:  you’ve got to provide a factual basis for the court to make a determination.  Stipulations are probably the preferred way to go, but as a supplement, not a substitute, to providing a factual record.
• If you’re the defense attorney and you’ve got an allied offense issue, don’t rely on Baker to absolve you of any responsibilities; you don’t know if the next court’s going to apply Lindsey and knock an appeal out of the box because you didn’t present anything. 

Of course, this raises another angle:  was the attorney in Lindsey ineffective for not presenting evidence on the allied offense issue?

If one thing’s certain in all this, it’s that Baker’s unlikely to be the last word on the subject.

The defense objected only to those two, so, the court tells us, “any allegation of additional sleeping jurors is waived absent plain error,” which exists “only where results of trial would have been different without the alleged error.”  A nit to pick:  this is the wrong test.   What the court should have said is that there was no evidence in the record of other sleeping jurors.  If there was, regardless of whether the defense objected to it — they didn’t in Majid – it seems that you wouldn’t have much trouble showing that the results of the trial would’ve been different in front of a panel that hadn’t decided to pack it in and take a road trip to Dreamtown.

The court does some excellent, and significant, work in State v. Griggs.  The case began at a bar, as so many do, when Griggs approached a woman named Jamille.  The opinion notes that there had been a romantic relationship between the two, but there was “a dispute about whether the romantic relationship was ongoing.”  Been there, done that, got the t-shirt.  In any event, Griggs’ entreaties to resume the affair, coupled with some physical groping, impelled Jamille to take out her cell phone and call 911 to report she was being harassed.  At that point, Griggs grabbed the phone from her hand and walked away, later returning the phone to her front porch later that night.  In a bench trial, Griggs was acquitted of gross sexual imposition, but convicted of third degree felony robbery.

That offense requires proof that the defendant “used or threatened the immediate use of force against another.”  Several years ago, I wrote about a 2002 8th District case, State v. Eskridge, where the defendant had reached across a counter, pushed the clerk’s hand away, and grabbed some money from the cash register.  The 8th reversed the robbery conviction, concluding that the force required by the statute had to be sufficient to pose a danger of physically harming the victim, or causing fear.  The Griggs court follows Eskridge and a 1984 8th District decision, State v. Ballard, distinguishing “purse-snatching” cases cited by the State, finding that those all involved actual physical harm or at least the prospect of it.

Griggs and a case decided a month ago, State v. Miller, offer an interesting combination for those defending “aggravated shoplifting” cases, those in which some rummy gets into a tussle with a security guard while trying to walk out of a Walmart with a shopping cart full of its finer wares.  Miller, discussed here, reversed a conviction of assaulting a police officer, finding the evidence insufficient where the the defendant had been “flailing around” in reaction to the officers’ attempt to arrest him; the court determined that this wasn’t enough to prove that the defendant had “knowingly” attempted to inflict harm.  So getting back to the rummy wrestling with the security guard, if he simply tries to break away without causing or attempting to cause any injury, Griggs might absolve him of the force element for robbery, and if he does make inadvertent contact — the defendant in Miller had kicked one of the officers in the shins — Miller might absolve him of “knowingly” causing harm.

The court revisits the issue of competency in State v. Macon.  On the day of trial, defense counsel asked the judge to refer Macon for a competency determination, noting that Macon had only a 5th grade education, which impeded the attorney’s ability to work with him.  The judge did so, then continued the case twice more to get the report, but there’s nothing in the record to indicate that one was received.  The case proceeded to trial without any determination having been made that Macon was in fact competent, and he wound up being convicted of child rape and given life without parole. 

The 8th has reversed on numerous occasions when the trial judge failed to make a determination of competency after it was raised, but the opinion notes that while a hearing is mandatory in those circumstances, the error can still be harmless “where the record fails to reveal sufficient indicia of competency.”  That, the court concludes, is what happened here; counsel never raised the issue again, illiteracy alone is not an indication of incompetency, and “nothing about [defendant's] testimony in direct and cross-examination suggested he was incompetent to stand trial.”  Somewhat troublesome facts, especially given the LWOP sentence, and the dissent makes some good points, but the majority’s analysis is a thoughtful one.

In State v. Williams, the court wrestles with another question:  admissibility of evidence of the character of the victim in a homicide case.  (Full disclosure:  I handled the appeal.)   In Williams’ trial for murder resulting from a melee involving several motorcyle gangs, the prosecutor asked one of the witnesses “what kind of guy” the victim, eliciting the anticipated answer, “he was a good guy.”  A good guy with six prior felony convictions, it turned out, and the defense argued that this opened the door to their admission.  The court affirms the trial judge’s determination that the rules of evidence limited admissible evidence about the felony convictions to opinion testimony about reputation or character, rather than specific instances of conduct.  EvidR 405, though, allows cross-examination on specific instances of conduct, and somewhat bewilderingly, the 1994 case cited in the opinion in support of its holding on this score actually holds the opposite:  there, the defense opened the door, and the court affirmed the prosecution’s use of specific instances of conduct in response.

More troubling is the court’s handling of a second issue.  Williams had testified that he’d seen the victim cut someone with a knife on a prior occasion, but the court refused to allow that person to testify because it was “cumulative.”  That’s nonsense, of course; a jury might well discount the defendant’s testimony on that score as self-serving, but would have a harder time dismissing the independent testimony of the person who was actually cut.  In fact, there’s a 1931 Ohio Supreme Court case right on point, coming to that very conclusion, but the court ignores it, instead relying on cases which hold that corroborating evidence is not permissible on this point.  This gets back to the admissibility of evidence of specific instances of conduct again, and here, the court makes a fundamental error:  while specific instances are not admissible to show merely that the victim had a propensity toward violence, they are admissible to show the defendant’s state of mind — i.e., the reasonableness of his fear of death or great bodily harm.  This is a confusing area of law, and the opinion does not serve to clarify it.

Not that I’m bitter or anything.