On the way to the station, they made fun of her weight.  When she got to the station, one tried to grab her purse while she was being booked, and she instinctively grabbed at it.  They knocked her down, kicked and punched her a few times, and when she got to her to her feet, she finally told them what she did for a a living:  she was a state parole officer. 

She told me that the place cleared out pretty quick after that.

That’s the only civil rights case I ever handled.  Jeanne didn’t have much in the way of physical injuries, but I’d known her before all this, and she was never the same afterwards.  I brought in a psychiatrist who explained it all, that Jeanne had always thought of herself as part of the law enforcement team, and that this had turned her world upside down.  It’s sort of like the happily married woman who finds out that her husband is a pedophile; it’s hard to keep it together when the entire foundation of your life comes crashing down.

The cops were terrible witnesses – I never had so much fun with my pants on as I did in that trial — and the judge gave Jeanne over $85,000, $75,000 of that for compensatory damages for psychological injuries.  The city appealed it, and a 6th Circuit panel cut the damages in half.  During the oral argument, one of the judges asked me to justify the award.  This was a long, long time ago, and if I’d been smart I would have talked about how the court should defer to the trial judge, who had a superior opportunity to gauge the credibility of the plaintiff and her doctor on that point.  Instead, I talked about how there are very few events that change your life, and this one had changed hers, and not for the better.  I’ll never forget the sneer on one of the other judge’s faces as he said, “So you think she should get $75,000 for… psychic injuries?”

And I said, “You miserable sonofabitch.  How do you think you’d react if a couple of cops busted for you bullshit, dragged you down to the police station, and used you as a punching bag?  What do you think that would be worth to you?  Of course, that’s never going to happen, because the chances of the cops doing that to an older white guy driving a nice car are nil.  That sort of thing doesn’t happen to people like you.”

I didn’t say any of that, of course, as the fact that I still have a law license attests.  But I thought about it yesterday, when I was writing the post about the 9th Circuit’s decision in the GPS case, and especially their holding that, by parking his car in the driveway next to his trailer, the defendant didn’t have a reasonable expectation of privacy; if people could walk up to his car, then so could the police.  This was from Judge Kozinski’s dissent from the denial of en banc review:   

There’s been much talk about diversity on the bench, but there’s one kind of diversity that doesn’t exist:  No truly poor people are appointed as federal judges, or as state judges for that matter. Judges, regardless of race, ethnicity or sex, are selected from a class of people who don’t live in trailers or urban ghettos.  The everyday problems of people who live in poverty are not close to the hearts and minds because that’s not how we and our friends live. Yet poor people are entitled to privacy even if they can’t afford all the gadgets of the wealthy for ensuring it.  Whatever else one may say about Pineda-Moreno, it’s perfectly clear that he did not expect–and certainly did not consent — to have strangers prowl his property in the middle of the night and attach electronic tracking devices to the underside of his car.  No one does.

When you glide your BMW into your underground garage or behind an electric gate, you don’t need to worry that somebody might attach a tracking devise to it while you sleep.  But the Constitution doesn’t prefer the rich over the poor; the man who parks his car next to his trailer is entitled to the same privacy and peace of mind as the man whose urban fortress is guarded by the Bel Air Patrol.  The panel’s breezy opinion is troubling on a number of grounds, not least among them its unselfconscious cultural elitism.

There’s less diversity as you go up the ladder of the court system.  Every current Supreme Court Justice went to either Harvard or Yale law school, and whatever hard-scrabble beginnings a few of them might have had are not even in the rear-view mirror any more.  That’s what allowed them to come up with probably the worst 4th Amendment decision of all time, Whren v. US, which held that so long as you’ve committed a traffic violation, the cops have the right to stop you, even if the traffic violation is a pretext.  If a few more justices had been in the “target group” for such stops — blacks, minorities, the poor — the Bullshit Traffic Stop of the Week™ wouldn’t be a regular feature of this blog.

That doesn’t mean there’s a lot of diversity at the bottom of the ladder, though.  I know a lot of judges, and while a few of them had privileged backgrounds, most didn’t.  Then again, I don’t know of any who live in trailers, or who go home at night to the projects, or who are likely to be stopped by the cops if they forget to put the turn signal on before changing lanes. 

You know what, though?  And it’s something I just thought of as I was writing this:

I don’t know any lawyers who do that, either.

I have served on this court for nearly three decades. I regret that over that time the courts have gradually but deliberately reduced the protections of the Fourth Amendment to the point at which it scarcely resembles the robust guarantor of our constitutional rights we knew when I joined the bench.

Sound like something departing Supreme Court Justice John Paul Stevens could have written?  Not quite; it’s the dissenting opinion of Judge Reinhardt in a denial of en banc consideration by, of all places, the 9th Circuit, from a decision they made in January in US v. Pineda-Moreno. 

Technology has always given courts fits in 4th Amendment cases.  The first time the Supreme Court looked at wiretapping, way back in 1928, it decided that there wasn’t a problem because the wires being tapped belonged to the telephone company, and the defendant thus didn’t have a property interest what the government was “seizing.”  It wasn’t until 40 years later that the court focused instead on a person’s expectation of privacy in their phone conversations and held that wiretapping did implicate 4th Amendment concerns.  In recent years, the courts have had to tackle a wide variety of other gadgetry, from infrared sensors to helicopter overflights to cell phones.

The Supreme Court first confronted the use of devices to monitor vehiclular movment in United States v. Knotts in 1982, and held that the police use of a beeper to track a vehicle doesn’t constitute a “search” because “a person traveling in an automobile on a public thoroughfare has no reasonable expectation of privacy in his movements from one place to another.” 

The Pineda-Moreno court relied on that same analysis, and went it one better.  On two occasions, in order to place the GPS tracker, the police had to sneak onto his driveway at 4:00 in the morning.  No problem, said the court, since the driveway had no gate or “no trespassing” signs; “because Pineda-Moreno did not take steps to exclude passersby from his driveway, he cannot claim a reasonable expectation of privacy in it.”  Since the device was placed on the outside of his vehicle, he had no reasonable expectation of privacy there, either.  And as for monitoring his whereabouts, the device gave the police the same information they could have obtained by simply following him. 

To me, this deconstructionist view of privacy expectations misses the entire point of the 4th Amendment.  The Amendment is intended as a bulwark against government action, and the central question should be, what is the reasonable expectation of privacy with regard to the government, not with the public as a whole.  If I park my car in a driveway, I might not have a reasonable expectation that some kid isn’t going to come onto the driveway and crawl under the car to retrieve an errant ball, but that doesn’t mean I should expect that police officers will crawl onto the driveway in the dead of night and affix a device with which they can track my movements.  Similarly, I can reasonably expect that a car following me on the highway can tell where I’m going at that moment, but that’s a far cry from expecting the police to be able to monitor everywhere I go.

Earlier this month, the DC Circuit exposed the flaws in the 9th’s logic in US v. Jones, where the police had used a GPS device to track Jones’ vehicle for a full month.  The court distinguished Knotts by noting that that case had involved the use of a beeper to track an item of contraband from one site to another, and had specifically reserved the issue of whether longer surveillance would require a warrant; in fact, the Knotts opinion cautioned that it should not be read to sanction “twenty-four hour surveillance of any citizen of this country.”   The court then tackled the notion that Jones’ rights weren’t violated because his movements over that period of time were exposed to the public:

Two considerations persuade us the information the police discovered in this case — the totality of Jones‘s movements over the course of a month — was not exposed to the public: First, unlike one‘s movements during a single journey, the whole of one‘s movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil.  Second, the whole of one‘s movements is not exposed constructively even though each individual movement is exposed, because that whole reveals more — sometimes a great deal more — than does the sum of its parts.

Jones isn’t a complete answer to the questions arising from the use of a GPS device.  It doesn’t address the placement of the device; in fact, the opinion makes no mention of how the device got on Jones’ car in the first place.  And one wonders how the court would have treated a much shorter surveillance, one lasting only a day or two.  The decision is certainly going to be of minimal, if any, value in cases where the police use the device to track a person from one place to another in a short period of time, as was the situation in Knotts.

Still, it’s a massive improvement over Pineda-Moreno.  The New York Court of Appeals had held that notwithstanding Knotts, under the state constitution such tracking required a warrant, concluding that permitting the warrantless use of such devices “would be to countenance an enormous unsupervised intrusion by the police agencies of government upon personal privacy.”  The 9th Circuit shrugged this off:

Should government someday decide to institute programs of mass surveillance of vehicular movements, it will be time enough to decide whether the Fourth Amendment should be interpreted to treat such surveillance as a search.

By that time it might be too late.

As Yossarian might say, “That’s some catch, that Catch-22.”

Actually, the court’s position isn’t quite as illogical as it might look at first blush.  The 8th District has held the same in several other cases (here and here), largely based on a 1987 Ohio Supreme Court case, State v. Stumpf, which used the same reasoning:  a plea of guilty admits guilt, thus removing the question of whether the defendant is actually innocent; the only question is whether the plea was voluntarily, knowingly, and intelligently made. 

There are a couple of problems with that argument, though.   First, is a plea made in ignorance of available exculpatory evidence really “knowing”?  More importantly, numerous cases like this one have established that whether the defendant has a valid defense to the charge — whether he’s actually innocent — is a factor to be considered in determining a pre-sentence motion to withdraw a plea.  (In fact, just last week in State v. Irizarry the 8th reiterated that one of the factors in determining whether a trial court had abused its discretion in overruling a pre-sentence motion to withdraw a plea was “whether the accused was perhaps not guilty or had a complete defense.”  If there’s a reason to distinguish between pre-sentence and post-sentence motions in this regard, the reason escapes me.

To be sure, post-sentence motions should only be granted “to correct a manifest injustice,”  so it’s logical to require that subsequently-discovered evidence must have much higher evidentiary value in showing innocence than would be required for a pre-sentence motion.   (Keep in mind that such evidence can’t be the basis for a new trial motion, since there wasn’t a trial.)  And it may very well be that whatever Pizarro had to present was pure bullshit.  But it seems that the evidence has to be examined, rather than dismissed out of hand because the defendant pleaded guilty.  If somebody’s really in prison for something he didn’t do, that should suffice for anyone’s definition of “manifest injustice.”

One of the tonier shopping areas in this area is the Beachwood Mall.  My last trip there was a long time ago, when I went to buy jeans for my daughter, and even she agreed that, at a price of $240, the cashier should have had a mask and gun when she rang up the sale.  So when I read in State v. Jacobs that the defendant was given a lifetime ban from the Mall, my first thought was that this wasn’t exactly cruel and unusual punishment.

But it was simply one of the many facets of punishment that the trial judge meted out.  He sentenced Jacobs to 17 months in prison, to be followed by five years of community control sanctions; the judge also imposed a $5,000 fine and the aforementioned lifetime banishment. 

Problems abound.  First, you can sentence a defendant to prison, or you can put him on community control sanctions, but you can’t do both.  And since the maximum period of sanctions is five years, you can’t impose a banishment for more than that.  Finally, while you don’t have to hold a hearing to determine an offender’s ability to pay a fine, even if he’s indigent, you do have to “consider the offender’s present and future ability to pay” it, and there was nothing in the record to indicate the judge had done that.

Some decisions merit mention because they contain good discussions of the applicable law in important areas.  In State v. Reddy, the court reduces the defendant’s conviction from aggravated murder to murder, and presents a fairly good roundup on the case law about what’s necessary to show “prior calculation and design” in the former offense.  In the civil arena, Ruggerio v. Kavlich begins as an attempt by a doctor to collect his bill for treating a personal injury client (a jury awarded the latter $500 for his property damage, and zero for his medical claims, but we’ve all seen that movie, haven’t we?) leads to several lawsuits, the last of them an abuse of process claim.  The opinion delves into the elements of this claim. The (very) long and (not nearly) short (enough) of it is that the claim is not, as you might think, based on the defendant’s having earler filed a frivolous lawsuit against the plaintiff.  On the contrary, the plaintiff must show that the initial proceeding ”was properly initiated and supported by probable cause,” but was then perverted to achieve an ulterior purpose.  I’m sorry, but with all due respect to the people who came up with this, it’s stupid.  Also, probably unnecessary; I’m sure if I spent some time on it, I could think of something you can get in an abuse of process action that you can’t get with a motion for sanctions for filing a frivolous action, but right now I’m drawing a blank.

Last, there’s preserving the record and, as the attorney in State v. Miller demonstrates, there’s preserving the record.  Miller is charged with a variety of offenses for trying to feel up his neighbor’s wife, and his counsel promises in opening statement to present various witnesses.  Miller appeals his conviction, claiming that his attorney was ineffective because she’d failed to call the aforementioned witnesses.  That was going to be a tough sell in any event, since that falls under “trial strategy and tactics” and thus is normally immune from claims of ineffective assistance.  But it became an impossible sell because the record included this dissertation by defense counsel, near the end of the State’s case:

I had three witnesses that were going to testify that we’ve agreed not to put on the stand.  Now, I’ve been in situations before where, in the event there would ever be a conviction here, you know, the first thing you hear is, you know, you didn’t put the witnesses on the stand.  But I want the record to be very clear, all the witnesses are here, and with the family and my client’s approval, we decided not to put the witnesses on.

And that, as they say, is that.

Lot’s of disciplinary cases this week, which mostly prove that your mother was right when she told you not to lie.  And paying more attention in math class might have helped, too:  that way, you wouldn’t submit assigned counsel fee bills showing you’d worked 3,431 hours in a single year. 

On to the courts of appeals…

Criminal.  Where state has presented sufficient evidence to show attempted murder, juvenile court errs in sua sponte amending charge to voluntary manslaughter in order to avoid mandatory bindover of 14-year-old boy, says 1st District… 6th District holds that vehicular assault is not lesser included offense of aggravated assault… While judge need not hold hearing before imposing fine, even on indigent defendant, record must show that he considered defendant’s ability to pay, rules 8th District… 9th District says that indictment for retaliation need not include the predicate offense… Rule does not require that trial court must inform defendant of constitutional rights before accepting guilty plea to misdemeanor, says 1st District… 5th District rejects claim that disparity between crack and powder cocaine penalties is unconstitutional… 6th District tosses search, says no evidence that cat feeder had authority to consent to warrantless police entry of defendant’s house, no reason for police to believe that he did…

Civil.  Punitive damages may be awared in conversion action, 1st District holds… Defendant not entitled to findings of fact and conclusions of law in ruling on motion for default judgment, says 8th District… CivR 15(C) cannot be used to amend complaint to include a party against whom statute of limitations has expired, notes 8th District… Trial court erred in permitting doctor in workers comp case to be impeached with his 1981 conviction, says 10th District… 6th District reverses an entry regarding child visitation because magistrate had an ex parte communication with father’s attorney about entry…

Alford pleas.  The prosecutor’s office up here doesn’t allow Alford pleas — where the defendant pleads guilty while maintaining his innocence — and the 2nd District’s decision in State v. Mapes might indicate why.  Alford holds that even though a defendant might believe he’s innocent, he could make a rational calculation that he’d be better off taking a plea deal.  In Mapes, the trial judge had gone into detail on how much prison time Mapes faced if he were convicted — about 44 years, versus the 26 maximum the plea entailed (he got 10) — but there was no proffer of what the evidence would have been.  The Alford calculation involves two factors, the 2nd holds:  not only the length of possible punishment, but the likelihood of that punishment being inflicted, i.e., the chances of conviction.  Here, there was nothing “from which the court could conclude that Defendant had rationally calculated that it was in his best interest to accept the State’s plea offer because he would be convicted if he did not.”

Puzzler of the week.  The average expenses incurred in prosecuting a medical malpractice action are somewhere north of $75,000, lawyers who do that for a living tell me.  Davis v. Firelands Reg’l Medical Center presents the question:  If you’re going to invest that kind of coin, why in the world would you scrimp on the transcript on appeal, and present only the direct and cross-examination of two experts and the direct testimony of two others, especially when your appeal presents issues of weight of the evidence?  And were you really surprised when the appellate court said that the failure to present the whole transcript left them unable to consider your argument?

The importance of proofreading.  From the 6th District’s decision in State v. Hall:

Before any discussion of appellant’s assignments of error, we must point out that appellant’s argument set out under his Assignment of Error No. II actually should be part of his Assignment of Error No. III and shall be addressed under that assignment of error. Furthermore, a reading of the argument made by appellant under his Assignment of Error No. IV reveals that it is made in support of appellant’s Assignment of Error No. I. It shall therefore be considered under that assignment. Finally, appellant’s argument that relates to Assignment of Error No. IV is found within the body of Assignment of Error No. III. This argument will be dealt with under Assignment of Error No. IV.

Not Mr. Rogers’ Neighborhood.  In State v. Collier, the 2nd District vacates the defendant’s conviction for criminal mischief, finding that Collier’s putting a note on his neighbors garbage can and placing a stick over it so it wouldn’t blow away did not satisfy the statute’s requirements that the defendant “move, deface, damage, destroy, or tamper” with another’s property.  The note read:

Grey’s and my chicken legs. Don’t worry about my business! Worry about that $ 300.00 + check you bounced and the late charge by the credit union. You make $ 500/per pay. Peanuts 15 years on the job/no education. Close your blinds. Watchin you and that hippo have sex is repulsive. You need to detox and go to AA, drunk.

To say that the twin decisions had a substantial impact is to grossly understate the situation:  panicked prosecutors tried to figure out how to phrase their indictments, and puzzled appellate judges tried to figure out if they’d done so correctly.  In the ten years preceding Colon, there were only 19 Ohio Supreme Court and appellate decisions in Ohio in which the words “mens rea” and “indictment” appeared in the same sentence.  In the two years since, there have been 326 such decisions.

So on Friday the Supreme Court said the hell with it, and in State v. Horner overruled Colon.  Here’s what you need to know.

How dead is Colon?   Very.  We go back to pre-Colon law that an indictment is not defective so long as it tracks the language of the statute.  Which means that if the statute doesn’t specify a mental state, the indictment doesn’t have to, either.  And structural error goes bye-bye, too; if the defendant doesn’t object to the indictment (and under the rules he has to do so before trial), all but plain error is waived.

Does this affect how a statute’s mens rea is determined?  Yes, it does, and that’s the most unsettling aspect of the opinion.  Exactly how much of an effect can be seen by comparing the statutes involved.  In Colon, it was the subsection of the robbery statute which prohibits a person from “inflicting, attempting to inflict, or threatening to inflict physical harm on another”; the court held this required a reckless intent.  In Horner, it was the subsection of the aggravated robbery statutue which prohibits a person from “inflicting, or attempting to inflict, serious physical harm on another,” and the court held that was strict liability.  As Justice Lanzinger writes in her partial dissent (she had no problem with the above two points), “to inflict or attempt to inflict serious physical harm. . . implies action on the part of a defendant that requires a mental state of some degree.”

In fact, Lanzinger points to the real concern in Horner:  the court appears to be moving toward the view that strict liability, not recklessness, is the default mens rea when the statute doesn’t specify one.  The court looks at two earlier cases, State v. Wac and State v. Maxwell; in both, the court had held that the specification of a mens rea element in one portion of the statute indicated the General Assembly’s intent that other portions be strict liability.  Section (B) of the aggravated robbery statute, which prohibits trying to steal a policeman’s gun, requires a knowing intent; ergo, the omission of any intent element in the remaining sections “plainly indicates an intent to impose strict liability.”  The upshot is that it’s likely that more offenses will be found to be strict liability.

Was this trip really necessary?  I’ve got mixed feelings about Horner.  On the one hand, I’m a defense attorney, and Colon helped us; it confused the hell out of prosecutors and trial and appellate judges, and that usually helps defendants.  On the other hand, it was bad law, and sooner or later bad law comes around to bite everybody.

The case might also prompt the Supreme Court to revisit its policy of having appellate judges sit as visiting judges.  Colon was a 4-3 decision, with a visiting judge sitting in for Justice Cupp, the most reliably pro-prosecution justice on the bench.  (Cupp unsurprisingly sided with the majority in Horner.)  Last week I mentioned that the swing vote in State v. Kalish, the most significant decision on appellate review of sentencing since Foster, was provided by a visiting judge.

What about Westfield?  The numberless hordes of my regular readers know that I’ve harped for years about the damage wrought by Westfield v. Galatis, the 2003 decision which purportedly set forth a standard for determining when the Supreme Court should overrule a prior case, and in fact created a standard so strict it was virtually impossible to meet.  (Example of one of my previous screeds here.)  The court has been edging away from Westfield through a number of artifices:  for example, in upholding the tort reform laws that previous courts had quashed, the court pretended that the new laws were really differently worded.  The effort reached its apogee this year in State v. Bodyke, when the court declared that stare decisis “was not controlling in cases presenting a constitutional question,” only to have Justice O’Donnell point out that Westfield’s test was partly derived from US Supreme Court decisions concerning the value of precedent in cases involving — you guessed it — constitutional questions.

So what does the Horner court have to say about Westfield?  Nothing.  Colon is summarily overruled without so much as a word about the standards to be employed in doing so.

This could be the bigger story than Horner.  Everybody knows that allied offense jurisprudence is a mess, but stare decisis keeps the court from overruling State v. Rance.  Everybody knows that it’s impossible to maintain the fiction that sex offender notification and registration laws are “remedial” instead of punitive, and that ex post facto considerations should apply, but stare decisis keeps the court from overruling State v. Cook and State v. Patterson.  Everybody knows that making a judgment “void” when a judge fails to properly impose post-release controls at sentencing is a land mine waiting to go off, but stare decisis keeps the court from overruling State v. Bezak.

If Horner really means that the court feels finally unshackled from Westfield’s limitations on overruling precedents, Colon isn’t the last decision that’s going to be deep-sixed.

Which is what I pretty much what I did.  Three pretrials got continued to another date, by which time I’ll have discovery, and maybe we can work something out, or not.  The hearing, on a motion to suppress, was obviated by the State’s willingness to offer me a misdemeanor.  This is how bad the search was:  in front of one of the most prosecution-friendly judges on the bench, and in the face of the insistence by the police officers involved that the defendant plead to a felony, they offered me a misdemeanor. 

But I did get one case resolved:  I got another misdemeanor plea on a drug trafficking case.  Twenty bucks worth of marijuana.  That leaves me with two other cases involving a $20 dollar sale of marijuana. 

One thing my clients can be thankful for:  they’re still alive.

Trevon Cole wasn’t so lucky.

Trevon was targeted by the Las Vegas police as a “major drug dealer.”  It was the wrong Trevon Cole; the one the police were looking for had a different middle name, was seven years older, three inches shorter, and a hundred pounds lighter.  And even his “lengthy criminal history of narcotics sales, trafficking, and possession charges” amounted to three misdemeanor marijuana possession arrests.  Still, that was more than the criminal record of the real Trevon Cole, the one who wound up dead; he had an unauthorized use of a motor vehicle as a teenager.

The police nonetheless managed to set up three controlled buys with Cole, for a total of 1.8 ounces of marijuana.  They wanted to make a bigger purchase — $400 worth — but “major drug dealer” Trevon Cole had to back out, because he didn’t have that much stuff.

On the night of June 11, the police narcotics squad raided Cole’s house.   The raid didn’t go well.  The front door required four hits from the battering ram before it opened, longer than normal.  The police rushed in, and Det. Bryan Yant kicked open the bathroom door.  Cole was kneeling in front of the toilet, and despite Yant’s commands to show his hands, Cole rose, turned toward Yant, and thrust his hand toward Yant as if he had a gun.  Yant shot and killed him.  “Unfortunately he made an aggressive act toward me.  He made me do my job,” said Yant.

That’s Yant’s version, anyway, but there’s nothing else to support it.  The position of Cole’s body, and the downward angle of the bullet through his cheek to his neck, demonstrated that Yant’s story was physically impossible; the medical examiner and the homicide detective who investigated the shooting concluded that Cole had been bent over the toilet when he was shot.  A more likely explanation for the shooting, from the accounts of the other police officers who heard the door kick and gun shot virtually simultaneously, is that Yant had accidentally discharged his gun when he kicked down the door.  Of the six police officers present, five didn’t hear Bryant say anything to Cole before the shot was fired, and the sixth didn’t hear Bryant say anything to Cole about his hands.

In any event, the whole thing went in front of a coroner’s inquest earlier this week.  If there was a betting line in Vegas on the outcome, it would have heavily favored Byrant:  of approximately 200 coroner’s inquests in the city into officer-involved killings since 1976, only one has resulted in a finding against the officer.  That one was for criminal negligence, and was subsequently overturned.  Det. Bryant himself was no stranger to the process:  in an incident a few years ago, he was absolved of killing a man whom he claimed was threatening him with a gun.  The coroner’s jury took only 30 minutes to acquit him, despite the fact that the gun was found 35 feet away from the victim’s body.  In Cole’s death, the inquest took a whole 90 minutes before concluding that the killing was justified.

California is electing a governor and a US Senator, but a lot of attention on the election results from that state this November will focus on the fate of Proposition 19, which would legalize marijuana.  It’s been leading fairly consistently in the polls — a SurveyUSA poll last week had it up 50-40 — but you don’t know how the undecideds are going to break, and even soft support for it might be swayed by things like the op-ed by the six current and previous drug czars in the LA Times.

I don’t buy into a lot of the arguments made by the proponents of legalization.  I think it’s unquestionably going to lead to greater use.  There are a lot of people who don’t use drugs simply because they’re illegal, and making it legal is going to eliminate that disincentive.  I don’t think it’s going to bring in much additional revenue.

But Trevon Cole’s finacee was present at the time of the raid.  She was 8½ months pregnant at the time.  I’m pretty sure I know how she’d vote.

With that caveat, let’s take a look at what’s scheduled.

As usual, several cases pertain to the “Great Writ” of habeas corpus.  Its availability to review state court decisions was substantially limited in 1976 when the Supreme Court prohibited virtually all substantive review of search-and-seizure claims in habeas, and it was virtually gutted by the passage of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) in 1996, which provided for an exceedingly deferential standard of review:  a Federal court could grant relief only if the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”

Nonetheless, a trio of habeas cases involving ineffective assistance of counsel claims made their way to the High Court this year.  Harrison v. Richter (links are to ScotusWiki, which provides links to all pertinent documents on the case) presents the issue of whether counsel was ineffective for failing to procure expert forensic testimony (the 9th Circuit held that he was), and also raises the issue of what deference the Federal courts must make when the state court doesn’t address the constitutional claim, or does it in only summary fashion.  Premo v. Moore, also a 9th Circuit decision, granted relief on ineffective assistance grounds for counsel’s failure to move to suppress a confession.  The unusual issue here is that Moore pled guilty, the concurring judge in Premo held that the defendant could demonstrate the necessary prejudice for an IAC claim by showing that he would have been in a better plea-bargaining position had counsel filed the motion.  The last is Cullen v. Pinholser, yet another 9th Circuit decision, which presents the question of whether relief can be granted based upon factual matters that were never submitted to the state courts, but presented for the first time on habeas.  Unaffectionately derided as the “9th Circus” by conservatives, and renowned for its reversal rate by the Supreme Court, don’t be surprised if the 9th goes 0 for 3 in this round.

One major non-habeas criminal case:  Michigan v. Bryant poses the question of whether a wounded crime victim’s statements to police concerning the perpetrator and circumstances of his shooting should be admitted at trial under the theory that they are “made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency,” and thus not testimonial under Crawford v. Washington and Davis v. Washington.  This is arguably the biggest post-Crawford case yet, because it offers the Court the opportunity to do something it hasn’t yet done:  define exactly what a “testimonial statement” is. 

A civil case with heavy criminal overtones is Connick v. Thompson. Thompson was charged with two crimes in 1984, an armed robbery and a capital murder.  The prosecutors proceeded with the robbery trial first, hoping to gain a conviction and thus effectively preclude Thompson from testifying in his murder trial.  It worked:  he was found guilty of the robbery, and didn’t testify at the murder trial, where he was convicted and sentenced to death. 

His attorneys subsequently discovered that state prosecutors hadn’t turned over blood evidence they had showing that Thompson hadn’t committed the robbery.  That, and discovery of more than a dozen other pieces of exculpatory evidence which hadn’t been disclosed, led to the granting of new trial, and the jury spent just 35 minutes in deliberation before acquitting Thompson, who’d spent 18 years on death row.  Thompson sued, and another jury hit up the prosecutors office for a whopping $14 million.  The Supreme Court accepted certiorari on the question of whether a single Brady violation can justify such an award, but don’t be surprised if this gets tossed as improvidently granted; there’s good reason to believe that the facts will show a good bit more than a single violation.

In the civil arena, a couple of notable First Amendment cases.  The first concerns Fred Phelps, the evil little fuck who founded the Westboro Baptist Church, which makes it a point to show up at military funerals with signs claiming that the deceased soldier is a “fag,” and his death the result of God’s hatred of homosexuals.  The family of Matthew Snyder, one of the objects of Phelp’s execrable displays, sued him for intentional infliction of emotional distress and was awarded $5 million.  The 4th Circuit reversed the award on free speech grounds and, for good measure, ordered Snyder’s family to pay $16,000 for the church’s legal fees.  Snyder v. Phelps poses a number of questions, such as the balancing of the freedom of speech against freedom of religion and assembly, and “whether an individual attending a family member’s funeral is a ‘captive audience’ entitled to state protection from unwanted communciation.”

A less troubling case is Schwarzenegger v. Entertainment Merchants Association, which presents the question of the constitutionality of a California law restricting the sale of violent video games to minors.  The mystery here is why the Court took the case in the first place:  the usual basis for doing so, to resolve a split in the lower courts, isn’t present, because the lower courts have uniformly rejected such laws.  It may be that the Court wants to take another look at how far the First Amendment goes in protecting the rights of minors, but coming after last term, when the justices practically laughed the Solicitor General out of the courtroom for her defense of the Congressional act prohibiting dogfighting videos, it’s hard to see exactly where this is going.

Anyway, the early handicapping has Michigan v. Bryant being the most significant case of the year.  Stay tuned.

I’ve been having a running debate with my buddy John Martin, appellate chief of the county PD”s office, about allied offenses, and the implications of State v. Williams, which held that felonious assault merged with felony murder.  John’s been pushing the idea that any predicate offense to felony murder is allied with that crime; for example, if a defendant was charged with felony murder and aggravated robbery, the latter charge would merge with the former.

I was initially skeptical, because some of Martin’s ideas appear to be the product of inordinate alcohol consumption (he puts the “pub” back into “public defender”).   But I think he’s got a pretty good point here.  It depends upon how you compare the elements of the two offenses in the Rance/Cabrales first step or, more precisely, what elements you compare.  Obviously, you can commit either crime without committing the other:  you can commit a felony murder in the commission of a burglary, say, and you can commit an aggravated robbery without killing anyone.

But if the first step is to be done by comparing the elements alleged in the indictment, that’s another story:  obviously, you can’t commit a felony murder in the commission of an aggravated robbery without also committing the aggravated robbery.  That’s supported by the Supreme Court’s decision in State v. Williams (discussed here), where the court held that felony murder — murder in the commission of a felonious assault — merged with the predicate offense of felonious assault.  We’ll get a better idea of how all this shakes out when the Supreme Court decides State v. Johnson, which presents the question of whether child endangering and felony murder based on that charge merge (oral argument discussed here), but it’s something to think about — and argue — at least until then.

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I’ve been doing some work recently on Federal sentencing, and the contrast between that and Ohio’s scheme is stark, both at the trial and appellate level.  District judges have substantially more discretion since Booker relegated the Sentencing Guidelines to an advisory role, but that discretion is far from unfettered:  the Supreme Court and the circuit courts have articulated a fairly clear standard by which sentences are to be reviewed.

That’s hardly the situation with Ohio law; post-Foster, it’s not even entirely clear what the appellate standard of review for sentencing is.  The Supreme Court took a stab at answering that question in State v. Kalish (discussed here), finding that appellate courts had adopted one of two standards:  whether the sentence was contrary to law, or whether it was an abuse of discretion.  The Supreme Court decided to double its pleasure and double its fun, and held that both standards were to be employed:  the appellate court reviews the sentence first to determine whether it’s contrary to law, and then to decide whether it’s an abuse of discretion.

Well, maybe.  Three justices dissented, and a fourth — a visiting judge, Willamowski of the 3rd District – concurred only in the judgment.  Most courts have gone ahead and followed Kalish, while noting that they really don’t have to because it’s only a plurality opinion.

Well, that’s not quite right.  Willamowski did write an opinion, and last week, the 2nd District, in State v. Hubbard, parsed that.   After closely examining Willamowski’s concurring opinion, it concluded that the issue of whether the trial court had actually bothered to consider the seriousness and recidivism factors under RC 2929.12, and everything else — imposition of maximum or consecutive sentences – is reviewed on a contrary to law standard, but the trial judge’s application of the 2929.12 factors is reviewed for abuse of discretion.

The author of Hubbard could certainly claim to know the thinking behind the concurring opinion in Kalish.  It was Judge Willamowski, who was sitting on the 2nd District by assignment. 

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In my first post about Ohio’s New, Improved “castle doctrine” which creates a presumption that the defendant acted in self-defense in an attack in his home or car, I ventured the view that I didn’t know

whether this is worth all the fuss; it’s not as though the nightly news regularly bombards us with scenes of homeowners being perp-walked out of their houses for shooting a burglar. 

That was pretty much on the money, as it turns out:  the two years since the law’s enactment have produce a grand total of three appellate cases.  The first one was a puzzling effort by the 8th District, which I discussed in January.   Two more came just last week, in State v. Clellan and State v. Miller.  Neither involved an actual castle — er, house.  In Clellan, an attempt to back into a driveway produced an altercation, a dialogue worthy of Quentin Tarantino (sample:  “I’m just dropping her off, fuck-face”), a gun, and a conviction for aggravated menacing.  Clellan relied on the provision of the statute which extends the defense to one who is in his own car, and uses force against a person who is unlawfully attempting to enter the vehicle.  The 10th District affirms the conviction, concluding that the jury could have found that Clellan wasn’t even in the car when he pulled the gun. 

Miller presented a similar equation of men+cars+testosterone=fight, and Miller’s attempt to avail himself of the defense foundered on the fact that he was indisputably not in the vehicle at the time.  The 12th District does add some case law to the statute.  Self-defense requires a showing that the defendant was not at fault in creating the situation giving rise to the affray, and the court holds that this also applies to the castle doctrine.

I generally don’t like it when a judge reads off of cue cards when doing a plea.  Waiving all those constitutional rights that the Founding Fathers felt were so important, and pleading guilty to a felony, is a big deal to a defendant, or at least should be, and you get a better feel for that if the judge is looking the defendant in the eye and talking to him like a real person.  Of course, the downside to that is that every once in a great while the judge is going to forget something, like the judge, normally a very thorough one, did in State v. Fisher, where mention of the defendant’s right to confront witnesses was omitted.  Strict compliance with Rule 11’s plea requirements is necessary insofar as constitutional rights are concerned, so Fisher’s attempt to vacate his plea is successful.

Not so for the defendants in State v. Owens and State v. Irizarry.  Irizarry argued that the trial court hadn’t told him that post-release controls were mandatory, or that by pleading guilty to involuntary manslaughter he was admitting to killing the victim.  The last claim is so not going anywhere, and as for the first, while the judge didn’t use the magic word “mandatory,” he did say, “you shall be on post-release controls for five years,” and that’s good enough.  Owens is in an even worse position:  his motion to withdraw the plea is filed after sentencing, which means that instead of getting the benefit of the “should be liberally granted” standard (which admittedly is honored mainly in the breach), he has to surmount the “only to correct a manifest justice” hurdle.  He falls woefully short, his grievance that his attorney promised him a six-year sentence refuted by the dozen or so times in the plea transcript that he acknowledges he’s pleading to an agreed nine-year sentence. 

Allied offenses also qualify for a trifecta of cases, and prompt some head-scratching.  In State v. Walton, a barmaid succumbs to Walton’s entreaties to have breakfast with him, which necessitates a short stopover in his hotel room.  Of course, what happens there is that he rapes her twice.  Two weeks after correctly concluding that taking a woman from one area of the bar to another between rapes isn’t sufficient asportation to provide a separate animus for kidnapping, the court decides that slamming the victim’s head against the wall and forcing her into the bathroom then back onto the bed is.  For good measure, it throws in some mumbo-jumbo from a 7th District case about how covering the victim’s mouth increased “”the risk of suffocation that would not have existed without this form of restraint.”  Hey, guys, here’s the easy way out:  taking the victim from the bar to the hotel would be more than sufficient asportation for a separate kidnapping conviction, and kidnapping can be committed by deception.

Allied offenses also get a workout in State v. Andrews, as does Andrews:  fired from his job, he starts whaling on a co-employee with a baseball bat, then follows him out to the victim’s car and beats him some more.  This earns him two convictions for felonious assault, one for using a deadly weapon and one for causing serious physical harm.  He argues that the offenses should merge, but the court finds a separate animus from the separate attacks.  This probably wasn’t intended by the indictment:  the outcome means that although the two attacks are virtually indistinguishable in their method and result, Andrews used a deadly weapon in one and caused serious physical harm in the other.

Allied offenses don’t get a workout in State v. Crumbley, but should.  Police suspect Crumbley and a cohort of robbing an elderly man of his social security checks, and stake out the house; when Crumbley and the other man break down the door and grab the victim, the police immediately intervene and grab him.  It’s hard to see how the resultant kidnapping and robbery convictions wouldn’t merge, but nobody raises the issue.

Crumbley is odd for another reason:  the opinion says that the aggravated robbery conviction is against the manifest weight of the evidence because there was no proof of serious physical harm, but the conviction will be affirmed because a reversal for manifest weight requires the concurrence of all three judges, and that isn’t present here.  It turns out that only the author of the opinion holds the view that the weight of the evidence compels reversal, which results in the anamoly of two of the three judges dissenting.  This stems from the 8th District’s practice of having the panel decide which judge will write the opinion before they hear oral argument and vote on the case.

Finally, the weekly lessons that the court’s decisions always impart.  From State v. McKnight, we learn that you’re not going to get very far in a claim that the judge improperly denied you your right to represent yourself at trial if (1) it took a year and half to restore you to competency to stand trial, (2) you don’t mention anything about representing yourself until the day of trial, and (3) when you do mention it and the judge says, “Well, we’ll have to have a hearing,” you say “never mind.”  And the moral of State v. Johnston is that if you’re going to claim “mutual combat” as a defense, it’s going to be a tough sell if the other guy has a broken jaw, fractured face, knocked-out tooth, was hospitalized for four days, and had his jaw wired shut for several months, and you don’t have any injuries, except maybe some bruising on your knuckles from where the victim kept hitting you in the fist with his face.