So you can imagine my thoughts when one of the jurors in the Yazeed Essa case, in their press conference following their verdict finding him guilty of poisoning his wife, mentioned that one of the deciding factors was Essa’s lack of reaction to various testimony at trial. 

To be sure, there’s a difference to not reacting to a some particular bit of testimony, and not reacting when a picture of your dead wife and the two kids you haven’t seen in five years is flashed on a screen.  And let’s agree that the jury went about its task quite responsibly, deliberating for four days before reaching a verdict that many courthouse observers felt would have come much quicker. 

Still, the idea of a “jury press conference” strikes me as a bit unseemly, especially in the setting of a courtroom in which the victim’s family is gathered, with the family congratulating and thanking the jurors, and the jurors expressing sympathy for the family’s pain.  Besides, you never know what somebody’s going to say with the cameras rolling.  Imagine what might have ensued if one of the jurors had opined, “Maybe if he’d told us his side of the story, things would have been different” or “Hey, as far as I was concerned, this thing was over after his brother testified against him on the third day of trial.”  The spectacle served mainly to vouchsafe Warhol’s prediction of everbody’s being famous for fifteen minutes, and I’d hope that a bit more discretion on this sort of thing will be exercised in the future.

Perry Mason in the jury box.  Speaking of juries, one of the recent developments in trial practice which has displeased defense attorneys is allowing jurors to ask questions.  The trial judge in the 5th District’s decision last week in State v. Nicholson might be having some second thoughts about it, too.

Nicholson, an inmate at Richland Correctional, was charged with one count of assaulting a corrections officer.  The incident began with a confrontation between Nicholson and his case manager, who wrote up Nicholson for “disrespecting a staff member,” the particulars of which were that Nicholson called the case manager “a lazy mother-fucker.”  Apparently, understatement is a habit among the correctional staff at Richland; the sergeant conducting the hearing on the violation testified that when he imposed a 30-day commissary restriction on Nicholson, the latter became “pretty belligerent,” as evidenced by Nicholson shouting “fuck you, fuck both of you,” and “I don’t give a shit about this commissary restriction.”  Things spiraled downward from there, with Nicholson eventually punching the sergeant.

At trial, the jury asked five questions of the sergeant, and then five more of the next witness, another corrections officer.  The appellate court noted that “some of the questions appeared to slant toward the defense,” such as whether the sergeant had used profanity toward Nicholson, or whether the officers were allowed to sit together while filling out their incident reports.

After that, the gloves came off:  eight questions for the next witness and thirteen for the one after that, prompting an admonition from the trial judge:

I will just say one other thing to you, folks, when I give you the opportunity to ask questions, I don’t expect you to be an attorney who does a lengthy examination of witnesses. You can ask one question, but not a whole series of questions. So if you have one question, fine, but don’t give me three or four questions.

Hint taken.  No questions for the next witness, one for the next, and none for the defendant when he took the stand.

Nicholson argued on appeal that “the trial court committed ’structural error’ by admonishing the jury for posing multiple questions to the witnesses.”  Since this was reviewed under a plain error standard — there’d been no objection at trial — it met the fate that you’ve probably guessed.  Sadly, the jury did not give a press conference afterwards, or we might have learned which of them planned on going to law school.

 *   *   *   *   *

As I mentioned earlier, no Briefcase next week.  I’m off to Phoenix to soak up some sun, do some hiking, watch a ballgame or two.   Or more; seems that Arizona’s Supreme Court just passed a rule granting reciprocity to lawyers, meaning you can practice there without having to pass the Arizona bar exam.  (Although you do have a take a test on Arizona law.)  Food for thought.

By the way, the picture at right isn’t of Arizona, it’s Death Valley.  As you can see, I stood in the middle of the road to take the picture, and had to depend on my wife to warn me of approaching traffic from the rear.   That’s true love.

See you in ten days.

The facts in Speer were relatively simple.  Scott Speer and Jim Barnett were co-employees and friends, who also had disagreements about money.  One evening in August of 2002 the pair set out in Speer’s boat to Put-in-Bay on South Bass Island.  Speer was the only one to come back, and the circumstances surrounding Barnett’s failure to make the return trip served as the basis of Speer’s indictment for aggravated murder, murder, aggravated vehicular manslaughter, and involuntary manslaughter, the state alleging that either Speer pushed Barnett off the boat, or that Speer’s drunken operation of the craft caused Barnett to fall overboard.

Central to the case were the 9-1-1 calls Speer had placed during the night in question, with the state arguing that the “calm tone” of Speer’s voice was evidence of his guilt, and the defense arguing that the fact Speer didn’t slur his speech on the tape was evidence he wasn’t drunk.

All that was lost, though, on one of the jurors, Linda Leow-Johannsen.  During voir dire, she’d indicated she had a hearing impairment, and needed to be able to read the lips of any speaker in order to know what was being said.  The judge rejected the defense’s challenge to the juror for cause, and tried to make accomodations for her by moving her to the first row, and directing counsel and witnesses to face her when they spoke so she could read their lips.

The 6th District decided this wasn’t enough, because while Leow-Johannsen was given transcripts of the 9-1-1 calls, that wouldn’t help her in determining Speer’s “calm tone” or the absence of slurred speech, critical factors in the trial. 

The Supreme Court agreed.  The Rules of Superintendence mandate that “the opportunity for jury service should not be denied or limited on the basis of disability,” and the court noted that the trial judge’s attempts to accomodate Leow-Johannsen served that function.  But it was not enough in this case: 

[The juror's] impairment directly prevented her from completely evaluating the specific evidence from the 9-1-1 recording presented in this case and relied on by both the state and the defense. Although promoting access to the courts is and should be a primary concern for the judiciary, the trial court’s paramount duty is to ensure that the accused is afforded a fair trial.

The court parted ways with the 6th District’s pronouncement that a disabled juror must be removed for cause if “any doubt exists that a juror can adequately and completely perceive and evaluate all the evidence.”  But the court’s own syllabus is quite sweeping: 

1. In deciding a challenge for cause to a prospective juror on the basis of a physical impairment, the court must determine, in light of the specific evidence to be presented, whether any reasonable and effective accommodation can be made to enable the juror to serve. In making that determination, the court must balance the public interest in equal access to jury service against the right of the accused to a fair trial, the latter being the predominant concern of the court.

2. The right to a fair trial requires that all members of the jury have the ability to understand all of the evidence presented, to evaluate that evidence in a rational manner, to communicate effectively with other jurors during deliberations, and to comprehend the applicable legal principles as instructed by the court. An accommodation made to enable a physically impaired individual to serve as a juror must afford the accused a fair trial.

3. A hearing impairment by itself does not render a prospective juror incompetent to serve on a jury, but when the accommodation afforded by the court fails to enable the juror  to perceive and evaluate the evidence, the accused is deprived of a fair trial. To avoid such situations, a trial court must determine whether reasonable accommodations will enable an impaired juror to perceive and evaluate all relevant and material evidence, and when no such accommodation exists, the court must excuse the juror for cause.

While this is certainly specific enough to provide guidance to the lower courts, it’s broad enough to provide some basis for the assertion in Lanzinger’s dissent (joined by Cupp) that it comes “dangerously close to encouraging trial courts to dismiss disabled jurors outright rather than risk reversal on appeal.”  What, for example, of a blind juror?  How many appellate courts have sloughed off arguments about the credibility of witnesses by saying that it was up to the jury to resolve those issues, since they had the ability to view the witnesses and observe them while they were testifying, and thus were able to perceive the physical cues most of regard as key to determining whether someone’s telling the truth?  In a case which turned on the credibility of witnesses — and which ones don’t? — would a blind juror be less capable of evaluating all the evidence?

Possibly, but that’s probably too broad a reading of Speers.  Speers was an unusual situation, where it was clear that a juror was unable to evaluate the key piece of evidence at trial.  (Lanzinger comes close to conceding the point; while making a passing reference to “the record” being contrary to that, she never attempts to explain why, and instead focuses on the failure of the defense to request an alternate juror take Leow-Johannsen’s place when it became obvious that the tape was crucial.)  The better reading of Speers is probably as a reaffirmation of the defendant’s fundamental right to a fair trial.

Watkins had gone out with some friends, one of which, Katelyn Kuntz, mentioned that she was going to be buying a car the next day with money she’d received as a graduation gift.  Essentially, Watkins set up Kuntz for the robbery, which was committed by three friends of his.  (Watkins was along for the whole time, although pretending to be held hostage by the other three.)  The group forced Kuntz at gunpoint to drive around, demanding money from her, and finally had her park the car, get out, and strip to prove that she wasn’t hiding anything.  After that, they let her drive away, telling her that she had to return in ten minutes with $5,000 or Watkins would be killed.

Well, guess what?  Kuntz called the police instead, and the short version is that things went to hell in a hurry after that.  The other three turned on Watkins, pinning him as the guy who’d set the whole thing up.  Watkins pulled the Sgt. Schultz “I know nothing” routine, but the jury wasn’t buying, convicting him of everything except the gun specifations.  The judge gave him maximum sentences on both — ten years on the aggravated robbery and eight on the kidnapping — and ran them consecutively. 

The appellate court spends more time than it really needs to rejecting Watkins’ manifest weight and sufficiency arguments, then turns its attention to the sentencing issues.  Watkins argued first that the sentence was “contrary to law” because the trial judge failed to mention at the sentencing hearing the purposes and principles of sentencing under RC 2929.11 or the seriousness and recidivism factors under RC 2929.12.  The court does the usual routine about how the judge needs to “consider” that but doesn’t need to make specific findings to show he’s considered them.  What’s more, the judge had included reference to the statutes in the journal entry, and so that’s the end of that.

Or the beginning, it turns out.  Watkins’ penultimate assignment of error (a final one, ineffective assistance of counsel, went nowhere) was that the judge abused his discretion in giving him maximum consecutive sentences.  That seems an equally futile argument; as the court notes, ”innumerable Ohio cases” have stated that an abuse of discretion “means more than an error of law or judgment.”  Innumerable?  According to LEXIS, the phrase appears 1,287 times in 8th District cases alone.

And it’s wrong; as Watkins notes, this standard

incorrectly implies that a trial court may commit an error of law without abusing its discretion. To the contrary, “[n]o court – not a trial court, not an appellate court, nor even a supreme court – has the authority, within its discretion, to commit an error of law.”

Of course, the correct standard — that the decision is “grossly unsound, unreasonable, illegal, or unsupported by the evidence” — seems equally daunting.  But that’s where the fun begins.

The appellate courts since Foster have acted as though the 1996 sentencing reforms were never enacted; all that babble about the preference for minimum or concurrent sentences was swept away, and replaced by unfettered discretion to impose whatever sentence the trial judge felt appropriate.  But that’s not true, either, Watkins notes:

Although Foster has freed the trial court from most requirements to make statutory findings, the legislative policy remains: “[A] first prison term should be the minimum sentence within the range absent reason to impose a greater sentence.” When a trial court imposes more than a minimum sentence for a first-time offender, support for the sentence should appear in the record in order to facilitate the appellate court’s review.

Here, it doesn’t.  Watkins was  a first offender, and the only support for the imposition of a more than minimum sentence was the judge’s statement, “I did sit through two days of trial.  I’ve heard all the facts and understand all the circumstances of the case.  I have considered those facts and circumstances.”  Not enough, says the appellate panel, especially since the other defendants were all just as culpable as Watkins, they all had prior records, and they all received more lenient sentences. 

We conclude that the evidence in this record supports the trial court’s implicit conclusion that the imposition of a minimum sentence upon Watkins would demean the seriousness of his criminal conduct. But we also conclude that the facts in the record in this case do not justify maximum, consecutive sentences for a first-time offender, and that the trial court abused its discretion by imposing maximum, consecutive sentences.

What is perhaps most surprising about the outcome in Watkins is that this is a close call.  We can easily imagine the victim’s terror as she was driven around at gunpoint, eventually forced into an alley and told to strip; many a similar venture has ended much more badly for the victim.  Had she articulated that in her testimony, one can see a trial judge using that, Watkins’ role in orchestrating the offense, and his unwillingness to accept responsibility for it, to justify the maximum sentence possible, notwithstanding Watkins’ lack of a prior record.

That’s not to suggest that the appellate court was wrong.  It correctly focused on the process, not the result.  The fact is that the sentencing reforms reflected a policy; that part of the mechanism for implementing that policy — judicial factfinding — has been cast aside is no reason to disregard the policy itself.

Perhaps the biggest casualty of Foster was meaningful appellate review of sentences.  Watkins sheds new light on the appropriate standard of review, and gives clearer understanding to what the appellate courts should be looking for, and what trial judges should be doing.  We’ll see how it turns out, but Watkins is without question the most significant development in sentencing law since Foster.

The manifest weight/sufficiency issue first crops up in State v. Gordon, which presents the question of whether sleep is a “substantial impairment” sufficient to establish a conviction of rape.  As we tried to tell our friends in college, the answer is yes.  The defendant argues that the victim’s credibility was suspect because she didn’t immediately report the incident, but his wasn’t helped by the fact that he repeatedly denied anything had happened until DNA evidence proved otherwise.  Up to the jury, says the court.

Ditto, says the court in State v. Ingram, which featured an after-Homecoming Dance celebration that made the toga party in Animal House seem like a celebration of High Mass; after reading the opinion’s detailed narration of the events, which featured whole platoons of teen-agers alternatively passing out and vomiting, I almost did, too.  The only legal point of interest was that the defendant had come over to the victim’s boyfriend’s house and threatened him for reporting the incident, the court holding this was admissible to show consciousness of guilt. 

The defendant in State v. Williams made a strong run at a manifest weight argument:  charged with 14 counts of rape, 16 of gross sexual imposition, and one for corrupting a minor with drugs — all regarding his 10-year-old daughter — he was acquitted of all but the last.  He argued that since the jury didn’t believe the girl about everything else, it shouldn’t have believed her about the drug thing.  The appellate court patiently explains that that’s not how it works, the jury is free to believe whatever and whomever they want, and besides, you’ve had enough luck for one lifetime, so don’t push it.

The most complicated case is State v. Hinzman, in which the defendant was one of several people charged with two counts of felonious assault for pummeling a fellow bar patron, one count under the subsection for inflicting serious physical harm, and the other for using a deadly weapon.  The judge ruled that the “deadly weapon” in this case, a high-heeled shoe,”  didn’t qualify as such, and dismissed that count of the indictment.  The judge did charge on the lesser offense of aggravated assault; that section contains the same subsections, serious physical harm and deadly weapon, and the judge instructed the jury on both of them.  The instructions and the verdict forms, however, allowed the jury to convict or acquit on only a single count of aggravated assault, without specifying a subsection.

The resulting conviction of aggravated assault was improper, Hinzman urged:  a criminal jury has to unanimously agree on its verdict, and that means it had to unanimously agree that Hinzman had caused serious physical harm or that she’d used a deadly weapon.  Since the verdict forms here allowed the possibility of less than a unanimous verdict — some jurors could have found that Hinzman caused serious physical harm, others that she used a deadly weapon — the conviction had to be reversed.

The appellate panel resorts to State v. Gardner, a 2008 Supreme Court decision, to figure this all out.  Gardner involved a similar question:  in  a burglary prosecution, the State has to show that a defendant entered the premises with purpose to commit a criminal offense.  Does that mean the jury has to unanimously agree which criminal offense the defendant intended to commit?  Although the opinion in Gardner had numerous problems, which I detailed here when it came down, it was at least clear in holding that while a jury needs to unanimously find all the elements of a crime have been proven, it need not unanimously agree on the alternative means by which the crime could have been committed.

The opinion in Hinzman draws heavily from Gardner’s extended discussion of “alternative means” versus “multiple acts,” with a dash of “conceptual groupings” thrown in for good measure.  The upshot is that the court decides that this is an “alternative means” case, meaning that “the jury was only required to unanimously agree that appellant’s actions constituted aggravated assault,” but that this still required there to be “substantial evidence to support a conviction under each subsection.”  Since the judge had dismissed the deadly weapon count of felonious assault, he’d never instructed the jury on the definition of a deadly weapon.  According to the court, this meant that there wasn’t “substantial evidence” to support an aggravated assault conviction under the deadly weapon subsection, and thus the conviction for aggravated assault ran afoul of Gardner.

If your eyes start to glaze over while reading the above paragraph, don’t worry; I had to read the Hinzman opinion about three times, and Gardner twice, to understand it all, and I’m still not sure I do.  In fact, one could argue that the trial judge’s error in instructing the jury on both sections, when only one applied, rendered the verdict suspect, without getting into the Gardner analysis at all.

Finally, State v. Courtney presents an irregular feature here at The Briefcase, the Bullshit Traffic Stop of the Week™:  The police stop a car for not putting on its turn signal before pulling into a gas station.  As the officers approach, they see the occupants “shoving something in their pants”; hopefully, their respective pants, not each other’s.  The officers inquire what was hidden, and the passenger helpfully tells the cops it’s marijuana.  He’s arrested, and Courtney, the driver, is removed from the vehicle “because of officer’s concern for safety.”  As the officer leads Courtney to the back of car for frisk, a bag of heroin helpfully falls out.  When the trial court believes what the officers say, there’s not much the appellate court is going to do about it, so the denial of the motion to suppress is affirmed.

Last year was a big year for decisions by the Court on the 4th Amendment:  we had Herring v. US, Arizona v. Johnson, and Arizona v. Gant.  This year might be a big one for the 5th:  the Court heard argument on its third Miranda case, Berghuis v. Thompkins, this past week.  Berghuis involves the question of when a suspect can be impliedly considered to have waved his right to remain silent during interrogation, and I’ll have more on that later this week.

I’ll also have more on the two big Ohio Supreme Court’s decisions last week, one in the “deaf juror” case, State v. Speer (oral argument discussed here), and the other, State v. Jackson, dealing with the question of derivative use of a compelled statement. 

Perhaps one of the most interesting decisions the court made last week was one that it… well, didn’t really make.  I’ve mentioned before that amendments to those statutes permit the Adult Parole Authority to impose PRC even if the trial court doesn’t order it, which seems to contradict earlier Supreme Court decisions that doing so would be a violation of the separation of powers doctrine.  The court’s managed to dodge that issue up to now, and does so again in State v. Fuller.  In that case, the appellate court had held that, because the new statutes allowed the APA to  impose PRC (and I’ll have another serving of alpahabet soup), the failulre of the trial judge to do so was irrelevant.  The Supreme Court reverses, the opinion’s single paragraph referring to State v. Singleton (discussed here).  Pfeifer writes a compelling dissent, arguing that the court should take up the issue of the new statutes’ constitutionality, to no avail.

On to the courts of appeals, and some especially good decisions from the 2nd District…

Criminal.  While there must be a factual basis for an Alford plea, prosecution need not state evidence going to every element of crime, says 6th District; defendant in abduction case argued that State hadn’t presented evidence on issue of “privilege”… Where defendant moves to withdraw plea and claims that counsel’s advice prompted her to plead, no violation of attorney-client privilege to allow lawyer to testify he didn’t give her that advise, 2nd District says… In aggravated riot case, 8th District holds that co-defendant’s acquittal in separate trial is inadmissible in defendant’s trial… 9th District rejects Batson challenge, but concurrence argues that issue should be decided on whether court’s decision finding no discriminatory intent was based on insufficient evidence or against manifest weight of evidence, rather than on Federal “clearly erroneous” standard; how this would affect decision escapes me… Whatever happened to modeling glue?  12th District affirms juvenile’s delinquency adjudication for “abusing harmful intoxicants,” namely, sniffing “3M Dust Remover”… Wow:  2nd District reverses maximum, consecutive 18-year sentence on first offender as abuse of discretion, finds that facts in record do not justify sentence…  Evidence to authenticate audio recording as defendant’s voice need only be sufficient to afford a rational basis for jury to decide that evidence is what proponent claims it to be, says 12th District… State failed to use sufficient efforts to bring reluctant witness to court, she was not “unavailable” so as to allow use of her prior testimony, 2nd District rules…

Civil.  Good decision from 3rd District on what constitutes “change of circumstances” for modification of child custody:  movant must show that change adversely impacted child… Reason #43 why I don’t practice commercial law:  it sucks.  Original mortgagee falsifies papers, lies to couple, then sells mortgage note to third party, who forecloses; 4th District holds that unclean hands doctrine only applies to original mortgagee, can’t be raised as a defense…

Eeeewwww Moment of the Week.  In Walls v. Travel Ctrs., the 6th District affirms the trial court’s grant of summary judgment to the defendant, operator of a truck stop, for an invasion of privacy claim.  It was a “customary practice” of the plaintiff, a commercial truck driver, to “avail himself of certain services offered at the facility.”  Those facilities included a “massage room” consisting of “partial walls, no ceiling, and two tables separated by a curtain.”  On one occasion, the plaintiff observed a video monitoring system.  Despite evidence that the system was pointed at the cash register and intended only to monitor that, the plaintiff “claimed to be distraught by the possibility that video footage exists of him in a state of undress,” and sued for a million dollars.

My guess is that if you go to a massage parlor at a truck stop, the least of your concerns is whether you’ll be videotaped “in a state of undress.”

That was still enough to get him shipped, so I’d told him he needed to clean up his act and prove to the judge that he was serious about overcoming his habit.  And he’d followed my advice to a T.  At the sentencing, I was able to give the judge attendance sheets showing that in the past 41 days, Travis had been at a Narcotics Anonymous meeting 26 times.  The judge, very knowledgeable on the subject of addiction, quizzed Travis about the meetings, his efforts to get a sponsor, and so forth.  Travis answered easily, and also told the judge about how his efforts had allowed him to be reunited with his girlfriend and his three kids, and how he’d realized how important it was for him to be a good father.  He’d been clean now for forty-five days.  One day at a time.  He’d only worked a couple of jobs in the past three years, but he was getting that together, too, and he’d lined up a couple of interviews.  The judge, obviously impressed, gave him two years of community control sanctions.

Outside the courtroom, Travis hugged me and thanked me profusely.  “You did what you had to do, man,” I said, giving credit where credit was due.

At which point Travis looked away, then back at me, then dropped his voice to a conspiratorial hush.  “Hey, you think they’ll test me today?”

*   *   *   *   *

For the record, every notice of a hearing I send to a client in a criminal case contains this phrase at the bottom:

If you plead guilty or are convicted on the date of the hearing, you will be tested for drugs and alcohol.

Just like that, bolded.  I include this to prevent a repeat of the long-ago conversation which prompted it, after I went out and explained to my client that the pre-sentence report showed he’d tested positive for drugs when he went down to the probation department right after his sentencing:

CLIENT:  But you didn’t tell me I’d be tested for drugs.

ME:  Gosh, you’re right.  It’s my fault.

Speaking of sentencings, the Saga of Shawn comes to a merciful end.  For those who missed previous episodes, a quick recap:

• Shawn is charged with leading the police on 100-mph automobile chase.  (A 100-mph horseback or foot chase would certainly be memorable, no?)  I cleverly find proof that he wasn’t the driver, and the prosecutor agrees to drop the fleeing charge and let Shawn plead to a 4th and 5th degree felony.
• Which Shawn would’ve done on the day of trial, had he shown up.
• Notwithstanding Shawn’s absence, when he does show I talk the judge into letting him back out on bond, talk the prosecutor into dropping the 4th degree felony, and get the judge to agree to give Shawn probation.
• Which he would’ve done at Shawn’s sentencing, had Shawn shown up.
• Shawn’s mother instead took him to a funeral, then rejected my advice of having him turn himself in.

So Shawn gets pick up in the inevitable traffic stop, and here we are in front of the judge.  I make the pitch, in roundabout fashion, that Shawn’s mother is the real bad guy here, and she probably is:  I called and told her the day before the sentencing to make sure Shawn showed up for that, and she decided it was more important to take him to the funeral.  But the judge pointed out that Shawn also had about four outstanding warrants for other misdeeds; “We can’t blame that on Momma, can we?”

The judge gave him six months.  Outside, the mother asked only a single question:  “When does he get out?”  “With jail credit, he’ll do another three months,” I answered, suppressing the urge to strangle her.

Boo f*****g hoo.  The word for today is Schadenfreude, a German word meaning, “taking delight in the misery of others.”  (And if anybody had a word for that, you’d figure it would be the Germans.)  It’s prompted by the release of the 2010 Client Advisory, a publication intended to advise the major legal firms — affectionately known as BigLaw — of the legal market.  And the news wasn’t good; we are told that “it was the worst year for the legal market in at least the past half century.”  We’re introduced to a number of charts, all of which have a downward tilt as the year progresses, which resulted in the top 250 firms laying off a total of 5,259 lawyers in 2009, with associates hardest hit, their ranks thinned by almost 9% during the year.

But all was not lost.  While many of the BigLaw markets — general corporation, tax, real estate, and capital — went to negative growth by 10 to 15%, there was one bright spot:  the demand growth in bankruptcy jumped by about 20%.

McDonald was the natural consequence of the Court’s decision two years ago in District of Columbia v. Heller that the 2nd Amendment provided an individual, rather than collective, right to bear arms.  The District of Columbia being a federal enclave, of course, Heller only applied only to the Federal government.  The next logical question is whether that’s applied to the states through the 14th Amendment.

The precise mechanism by which it would be applied occupied a lot of the talk, especially in academic circles, leading up to the argument.  After some fits and starts, the Court has used the Amendment’s Due Process Clause as the method of incorporating the Bill of Rights and making them applicable to the states.  Although there was heavy criticism of this approach in the ’60’s and ’70’s, mostly led by Harvard Professor Raoul Berger, more recent research has shown pretty conclusively that the Framers of the 14th did intend it to apply the Bill of Rights to the States.

The research has also shown that the Framers actually intended the vehicle of incorporation to be the Amendment’s Privileges and Immunities Clause, but that clause was rendered dormant by a series of Supreme Court decisions in 1876.  Much of the buzz in academic circles prior to oral argument was the argument of McDonald’s attorneys that the Court overrule those cases and resurrect the P&I Clause.   That argument went nowhere; Alan Gura, McDonald’s lawyer, hadn’t gotten three paragraphs into it before Roberts jumped all over him, and Scalia buried the contention:  “[W]hy are you asking us to overrule 150, 140 years of prior law. . . unless you are bucking for a place on some law school faculty.”

With that out of the way, the discussion turned to two topics:  first, whether the right should be incorporated, and secondly, the exact nature of the right.  The test the Court has ultimately settled on for determining whether a right should be incorporated is whether it is “fundamental to a concept of ordered liberty.”  In McDonald, that raised a question:  whose “ordered liberty” are we talking about?

In several cases in recent years, the Court has referenced the laws of other countries; for example, in determining whether imposition of the death penalty on juveniles or the mentally retarded offended the “evolving standards of civilization,” the Court looked to how other nations applied the death penalty to those groups.  This aroused the ire of conservative groups, even to the point of the Federalist Society proposing an amendment prohibiting the Court from using foreign law to interpret the Constitution.

McDonald offered the possiblity of the Court wading back into those troubled waters, because the best argument against incorporation is this:  if a right to bear arms is so fundamental to a concept of ordered liberty, why does virtually every other democracy in the world have far more restrictions on gun possession than we do?  Nobody raised that argument, though, probably because the pro-incorporationist judges  pre-empted it by noting that the “ordered liberty” should be determined solely in light of American law and traditions.  As Roberts noted, there is no right to jury trial in Japan, yet nobody would think of arguing that this meant it shouldn’t be regarded as fundamental in this country.

With that argument off the table, the City had little wiggle room, other than to contend that gun regulation had historically been left to the states and cities to sort out.  But that was pretty much the same argument made by the District in Heller, and it didn’t get them anywhere.  In fact, the difficulty that Heller posed for the City was aptly summed up in a question by Kennedy:  ”How could some member of the Court write this opinion to say that this right is not fundamental, but that Heller was correct?”

As I mentioned on Monday, the decision in Heller was met with predictions in various quarters — including here — that it could lead to re-examination of a number of gun regulations, such as bans of certain weapons, weapons disability laws, and even laws regarding the use of a weapon in a crime.  None of that panned out, of course, but it didn’t keep me from predicting, when the briefs were filed in McDonald, that “the Court in McDonald, unlike in Heller, will have to tackle the question of whether gun regulations will be subject to strict scrutiny, the rational basis test, or something in between.”

Well, that’s one more reason why you’re not going to see my name on the Psychic Hotline list.  Not only was there no discussion of what level of scrutiny gun regulations would be subject to, it’s not entirely clear that any regulations other than an outright ban would be affected.  And an outright ban on all weapons; even Scalia agreed that some types of weapons could be banned; “we said as much in Heller.”

At the risk of making two different predictions on the same subject and getting them both wrong, it’s beginning to look like Heller isn’t going to have nearly the impact that many thought it would have.  In fact, the push to have the 2nd Amendment deemed an individual right, an effort which has occupied the gun rights lobby for the past fifty years, turns out to have been largely an empty exercise.  Without Heller, the NRA and other gun rights supporters have defeated the re-authorization of the assault weapons ban, and have persuaded virtually all states to adopt some form of concealed-carry law.  It may be that future decisions will flesh out the scope of the right to bear arms granted in Heller, but for now, and for McDonald, it appears that it will be little more than the right to possess a gun in one’s home.  A total ban on possession is out; nobody seems too willing to examine the issue beyond that.

Miranda v. Arizona,

So now I sit here, looking back on 34 years of practice of criminal law, and wonder why the hell so many of my clients wouldn’t shut up.  And my experience isn’t atypical; studies have shown that over three-quarters of suspects waive their Miranda rights.  What happened?

Those of the liberal persuasion would argue that Miranda has been undercut by the Court itself in its subsequent decisions on the scope of Miranda.  Additional fodder for that theory was provided by two more decisions last week.

While Miranda spelled out the basic nature of the warnings that had to be given, questions as to the exact required wording have frequently arisen.  Last week, in Florida v. Powell, at issue was the warning given by the Tampa Police:  it cautions a suspect that he has a right to “talk to a lawyer before answering any of our questions,” and the Florida Supreme Court held that this may lead suspects to believe that they can’t talk to a lawyer once questioning begins, or that they can’t have the lawyer present during questioning.

The Court’s never been particularly demanding as to the precise warning (at one point requiring “Miranda warnings. . . or their equivalent), and previous cases have seemed to offer more questionable phrasing:  in Duckworth v. Eagan, the warning advised that the suspect had a right to appointed counsel “if indigent,” but informed him the lawyer would be appointed “if and when you go to court.”  Given that the warning in Duckworth passed muster, that the Court would find the warning in Powell sufficient is hardly surprising, and that’s exactly what they did.

Maryland v. Schatzer, the other case decided last week, offered a more substantial issue.  While incarcerated in 2003, Shatzer had been questioned about allegations he’d sexually abused his son, and had invoked his Miranda rights.  Three years later, while Schatzer was still in prison, another detective came and interviewed him on the same subject, and, after being readvised of his Miranda rights, this time Schatzer talked.

In 1981, the Court ruled in Edwards v. Arizona that once a suspect invoked his Miranda rights, the police couldn’t resume questioning unless the suspect re-initiated contact.  That decision was compelled, the Court wrote then, by the prospect of police repeatedly badgering a suspect until he finally agrees to talk.  But the lower courts had held that a break in custody ends the Edwards  presumption, and the Court unanimously agreed.  In future cases, the Court also held, a break of 14 days or more would be sufficient to overcome the Edwards presumption.

I find it difficult to get worked up about either decision.  Only Stevens dissented in Powell  (Breyer joined in his dissent only on the point that the Florida court’s decision rested on an independent state ground, and thus the Court shouldn’t have ruled on it at all), and the result in Schatzer was unanimous.  The Florida court’s reasoning on how Powell might have been misled by the warnings was severely strained, and given the officers’ compliance with Miranda in Schatzer – he was given the warnings on each occasion — it seems unlikely that Schatzer felt “badgered” into giving up his rights by the appearance of a police officer almost three years after the last one had left.

To be sure, previous decisions of the Court have narrowed Miranda, but that still doesn’t explain why the vast majority of suspects talk.  I think the greater problem may be that Miranda is based on assumptions which don’t work in the real world.  To a large degree, Miranda buys into the “rational suspect” theory:  that one who is informed that talking the police can get him into trouble will prefer not to do so.  Once he is informed that he has the choice not to, he will opt for keeping silent.

The problem is that, in my experience, suspects do not rationally process this.  Inside of every criminal is a con man.  When I talk to my clients who’ve made confessions, or read over the transcripts of interrogations in my cases or in appellate opinions, the same pattern invariably emerges:  the interview very obviously begins with the suspect believing that he can talk his way out of trouble.  He’s spent so much time lying to others — his victims, his family, and often himself — that he thinks he’s really good at it, and it can get him by one more time.

If Miranda’s only failing was that it didn’t dissuade guilty people from talking, there wouldn’t be an issue.  The bigger problem is that it doesn’t discourage innocent people from talking, either, and that results in false confessions.  (Studies of DNA exonerations show that, in about 20% of the cases, there was also a confession. perhaps the most notable was in the Central Park Jogger case, in which five young men were sent to prison for brutally beating a woman, their verdicts seemingly confirmed by confessions, their claims that the confessions were coerced in turn confirmed by DNA evidence which showed the real assailant acted alone.)  The Miranda warnings rarely register for such a person.  Why would you be worried that anything you say could be held against you if you didn’t do anything?

The ultimate problem is that Miranda skirts the true issue — the voluntariness of a confession — by substituting a procedure:  as long as the warnings are given, what ensues is largely immaterial.

There is growing recognition that warnings aren’t sufficient in light of increasingly sophisticated police interrogation techniques.  Several states and localities have adopted a requirement that such interrogations be audiotaped or videotaped; there’s presently a proposal in the Ohio legislature to adopt that rule for “major” felony cases.  Only one cautionary note:  the “confessions” in the Central Park jogger case were videotaped.

The police officers in State v. Burks had certainly done their homework:  they’d set up a buy-bust operation near E. 67th St. in Cleveland, involving, the court’s opinion tells us, “a cooperating civilian, officers, including ‘maybe five (5) take down officers, two (2) undercover detectives, and at least two (2) uniform officers.’”  After receiving confirmation that a deal had gone down, the police approached a particular address and “observed two or three males on the porch and Burks standing inside the doorway of the home.”  The officers detained the males, and as Det. Barrow approached Burks, he heard a toilet flushing.  Interpreting that as a sign that evidence was being destroyed, Barrow rushed into the house.  His suspicions went unconfirmed, but entry did give him an opportunity to see a large bag of marijuana in the house.  Burks denied it was his, but ‘fessed up when told by the officers that since the only other person inside the house was his 79-year-old grandmother, they’d have to arrest her.

One of the things the police did not do in preparation for the day was obtain a search warrant, and that proved fatal for their case against Burks; the exigency exception to the warrant requirement applies where the police don’t have time to obtain a warrant, and here their planning showed they did.  The opinion suffers from two defects:  first, it is unclear as to whether the particular house was indeed the focus of the operation, and second, even if it was, focus on a particular house isn’t the same as having probable cause to obtain a warrant.

But take what you can get; other than State v. Hunter, which is simply sent back for resentencing, Burks represents the only victory for defendants this week.   More typical is State v. Williams, where the court holds that the failure to provide the defendant with written notice of the charges prior to his probation violation hearing is a “purely formal defect,” which is courtese for “we don’t care.” 

Some good opinion-writing, though, first in a civil decision, Harris v. Noveon.  Harris worked for Lubrizol, Noveon’s successor, and persuaded the company that he could develop its plumbing segment in Latin America.  And he did, generating sales of $26.5 million in 2006, his last year.  Instead of his anticipated $635,000 bonus, he received less than 20% of that, and so sued, claiming that Lubrizol should be estopped from claiming that his bonus was subject to a cap because they had promised him it wouldn’t be.

Promissory estoppel is a frequent flavor in employer-employee cases, but its utility took a hit in the 1991 Ohio Supreme Court case in Wing v. Anchor Media, where the court held that without a specific promise of continued employment, promissory estoppel cannot be an exception to the “well-established doctrine of employment at will.”  But Harris, and the opinion, note that those cases involved claims of wrongful discharge,  while here the claim is refusal to pay a bargained-for bonus.  The court also draws several other distinctions with Wing, and affirms the award for Harris.

The court also does a nice job in State v. Brown, an attempted murder case, the main feature of which is an argument that trial counsel was ineffective for failing to bifurcate the weapons under disability charge, and to object to the admission of the report of the gunshot residue test.  As to the first, the court rightly notes that Brown’s problem stemmed not from the jury’s finding out the nature of the offense which gave rise to the disability — a misdemeanor attempted drug possession charge — but the fact that he had been convicted of two felonies, intimidation and felonious assault.  The jury’s awareness of those had come not through his attorney’s derelictions, but from the fact that his arguing self-defense necessitated him testifying, with the resultant impeachment by prior offenses.  As to the GSR test report, the court notes that Melendez-Diaz v. Massachusetts renders it testimonial, and thus “by stipulating to the report, Brown’s counsel essentially waived his confrontation rights.”  Even assuming that counsel was ineffective for stipulating to the report, though, no prejudice can be shown, given the state of the evidence, especially given that Brown admitted firing the weapon.  The opinion in Brown reads easily, deftly weaves the legal arguments with the evidence presented at trial, and, most notably, spends only a paragraph each in reciting the law on insufficiency and manifest weight of the evidence, the first two claims raised by Brown.

This stands in marked contrast to the normal practice in the 8th, which is to treat such claims as a fresh opportunity to articulate the law in these areas in excruciating detail, as if for the first time.  In State v. Clement, for example, this recitation consumes the first six pages of the court’s opinion; the remaining three are spent reciting the facts, which would demonstrate to the satisfaction of Clement’s own family that there was more than ample evidence to support his conviction.   Indeed, the entire opinion could have been reduced to three sentences:  “Someone robbed a guy with a gun.  The defendant  was caught a couple minutes later with the guy’s stuff and a gun.  The End.”  In State v. Black, the court cuts its disposition on the law of sufficiency and weight of the evidence by half, but compensates by spending three pages regurgitating the cases on ineffective assistance of counsel, most of which date back to the Carter administration.  In State v. Smiley, more trees die to inform us about weight and sufficiency, but the real mystery of that case is not why the court feels that’s necessary, but how the defendant managed to use someone else’s debit card to steal $29,000, but was charged with only a 5th degree felony receiving and a 1st degree misdemeanor misuse of a credit card.  I’m alerting the media; this probably marks the 1st time in my 34 years of practice that the Cuyahoga County prosecutor’s office has actually underindicted someone.

The third of a trio of “honest services” cases hits the Supreme Court for argument this week.  I explained the problems with the law when the first two were argued last December, but those involved technical applications of the statute.  The argument this week, in the case involving former Enron exec Jeff Skilling, squarely presents the issue of the law’s constitutionality, primarily in terms of its vagueness.  No decision has been rendered in the first two cases, and the outcome of Skilling’s case could decide those as well.

An even bigger case, potentially, is McDonald v. City of Chicago, which presents the question left unresolved two years ago in DC v. Heller:  does the 2nd Amendment apply to state and local governments?  The decision could have some major ramifications on state gun regulations and laws.  Then again, I thought that Heller would, too (and I wasn’t alone), and that didn’t exactly pan out.  McDonald will be argued tomorrow, so I’ll see how that goes, and I may have a post on that, too.  Or not.

One of the developments in criminal law over the past decade or two is the substantial expansion in juveniles being prosecuted as adults, and especially the inclusion of offenses for which bindover to adult court is mandatory.  Two years ago, in In re AJS, the Ohio Supreme Court had held that the state could appeal a juvenile court’s ruling denying mandatory bindover.  Last week in In re MP, the court unanimously held that discretionary bindovers — where the court finds probable cause to believe the juvenile committed the offense, but concludes that he’s amenable to rehabilitation in the juvenile system — are not appealable.  Considering the attitude toward crime and juveniles, don’t be surprised if the legislature changes this.

That was about the only decision of note in Columbus, other than six — count’em, six — disciplinary decisions involving wayward attorneys (and one judge), so let’s get to the courts of appeals…

Civil.  Mortgagee is real party in interest in foreclosure suit even if it doesn’t acquire the mortgage until after the foreclosure is filed, says 6th District… Plaintiff sues tortfeasor and own insurance company under underinsured motorist coverage, insurer files cross-claim against tortfeasor for subrogation of medical bills; 1st District says lack of counterclaim means court can’t order plaintiff to reimburse insurer for those bills… 90-day time for filing appeal of an arbitration award runs from date of postmark, not date of actual delivery, says 8th District…

Criminal.  Order of $83,739 in restitution contrary to law where no indication that amount was reasonably related to loss, even though defendant pled guilty, and did not object to restitution amount, 6th District rules… 8th District holds that trial court committed error at resentencing of defendant due to post-release control error when it failed to advise him of his appellate rights and right to appointed counsel… Mirabile dictu:  trial court grants motion for new trial because prosecutor failed to disclose that state witness had felony record, 9th District affirms; good review of law on criminal discovery violations… 12th District says that standard for authentication of email/instant message communications is only reasonable likelihood, less demanding than preponderance of evidence…

One for the road.  Kurt Rasmussen, in Akron for a business appointment, partied a little too heavily after its conclusion:  at 2:30 the next morning he was busted for driving drunk, and blew a .144 on the breathalyzer.  He was arraigned six hours later, and in State v. Rasmussen, the 9th District rejects his claim that his plea was not knowing and voluntary because he was still drunk.  Although the transcript of the plea shows that the trial judge indicated that Rasmussen “seem[ed] to be acting oddly,” and that the judge was “trying to figure out whether or not you’re of sound mind and not under the influence now, so that your decisions  [to plead guilty] are sound ones,” the appellate court held the judge was not under an obligation to give Rasmussen another BAC test before accepting his plea.

Cases I never finished reading.  The first line of the 4th District’s decision in McLaughlin v. McLaughlin:  “This is the fourth appeal by the parties in this case, which began in April 1993 when Carol filed a complaint for divorce.”

By way of explanation.  I know, you saw the first case mentioned in the “Civil” category and thought, “Jeez, Bensing is reading foreclosure cases now?  Has he lost his mind?”  Well, I sort of skimmed over it, and realized it was the only mortgage case I ever understood, so decided to include it here.  I must admit that I find your concern for my mental health touching, and under the circumstances, appropriate.