Last week, in State v. Yuravak, a different panel of the 8th took a stab at the question, and answered it in the negative.  The defendant had been convicted of a drug offense, and the trial court had imposed the mandatory drivers suspension, in this case deciding on the maximum period of five years.  The defendant had appealed, arguing that the trial court’s decision to defer imposition of that suspension until after the defendant had completed his prison time was an abuse of discretion. 

Wrong, said the court:  the standard isn’t abuse of discretion, it’s whether the sentence is contrary to law.  The 10th District came to the same conclusion last week.  On the other hand, you’ve got a raft of decisions — including some from the 8th and 10th Districts — that hold that abuse of discretion is indeed the standard.  And you’ve got the 11th District’s decision a month ago in State v. Hubaker, which says that abuse of discretion is the appropriate standard for most cases, but contrary to law can be used in some, and cases like State v. Nayar, the 7th District decision late last year which essentially held that a “hybrid” standard of review — using both abuse of discretion and contrary to law — was appropriate.

I’d parse these cases for some deeper meaning, but it all has a “how-many-angels-can-fit-on-the-head-of-a-pin” feel to it.  You can call it abuse of discretion, you can call it contrary to law, you can call it Zelda, and it still boils down to the same thing:  a trial judge in Ohio has unfettered power to impose a sentence, as long as it’s within the statutory limits, and as long as he doesn’t say something like, “I’ve always felt that colored people should be given longer prison sentences than white folk.”  On the record, anyway.

Back in 1995, when the Ohio Sentencing Commission was discussing different proposals for sentencing reform, it decided not to adopt a matrix system, similar to the Federal Sentencing Guidelines.  At the time, I thought that was a good idea.  I often felt that the Federal sentencing scheme would have made a great board game:  you and your opponents start out with your pieces (battleship?  hat?  shoe?) and move around the board, picking up levels for “role in the offense” and dropping them for “acceptance of responsibility,” and then you spin the wheel for criminal history level and Voila!  You wind up at level 28, and off you go for 121-134 months, but that’s less than anybody else, so you win…

District judges complained like crazy about how the Guidelines completely circumscribed their ability to hand out sentences which made some sense.  And rightfully so.  You don’t want a situation where wildly disparate sentences are handed down for the same conduct, and the perception becomes that the ultimate outcome of the case is wholly dependent on what judge you draw in the arraignment room.  But you don’t want cookie-cutter sentences, either, where the only exercise of judicial discretion becomes whether to choose the top or the bottom of a 154-166 month sentencing range.

But I’ve begun to do a lot more Federal sentencing work, and you know what? After Booker, Rita, Gall, and Kimbrough, sentencing discretion has been largely restored.  It’s guided discretion, to be sure; the court still has to calculate the guidelines and come up with some explanation for why it deviated from them, if it chose to do so.  The standard for appellate review is deferential, but not obsequious.

The result is that every week I read Federal sentencing decisions in which judges have carefully and articulately explained their reasons for choosing a particular sentence, and if they have not done so, they get reversed.  The large majority of sentences are within the Guidelines range, but that’s understandable:  the Guidelines themselves are the result of a careful study of sentencing over the years, and they’re a logical starting point for what the sentence should be.  But if the defendant’s is truly egregious and warrants more time, or the defendant’s character and rehabilitation show that he warrants less time, the judge can do that.

The idea behind the Ohio sentencing reforms in 1995 was also “guided judicial discretion”:  there was a sentencing range, and all kinds of factors which judges were supposed to take into consideration in fashioning a particular sentence.  The guidance provided for minimum, maximum, and consecutive sentences went out the window in Foster, and the decisions since then have eviscerated what was left.  Although the seriousness and recidivism factors are still there, they’re window dressing:  although the judge is supposed to consider them, he doesn’t have to make any findings with regard to them, and in fact there are decisions out there which say that he doesn’t even have to mention them — it will be presumed from a silent record that he did.

It’s obviously too much to expect for Ohio to establish a matrix-like grid for sentencing.  Frankly, it’s probably too much to expect them to do anything.  But if the concept of guided discretion, which was the heart of the 1995 reforms, is to be rescued, requiring more than just a ritualistic incantation that the court has considered the seriousness and recidivism factors under RC 2929.12 — or, even worse, pretending that the court has done so when there’s nothing to indicate that it has — might be a place to start.  Those kinds of findings would not fall within the Apprendi/Blakely analysis, would force the trial judges to engage in some sort of reasoning process when arriving at a sentence, and would allow for meaningful appellate review.

Hey, we can dream, can’t we?

For the most part, the response of the judicial system has been to pretend this doesn’t happen.  Although the US Supreme Court highlighted the dangers of mistaken identification 40 years ago, and announced rules for preventing the use of unduly suggestive identifications, those rules have been folded into the “totality of the circumstances” test, with the result that cases of identifications being thrown out are about as common as Bigfoot sightings.  A few years back, I got assigned to an appeal where identification was the big issue, and I diligently researched every case over the past 20 years involving claims of suggestive identification.  There were 104 of them.  The identifications were upheld in 103.  The only case which was thrown out involved a 74-year-old woman who insisted that she’d identified the defendant in a lineup, which was called into question by the police officer’s unhelpful testimony that no lineup had in fact been conducted. 

Some of the problems with eyewitness identification are due to the inherent fallibility of perception.  Any number of studies have demonstrated that people do not accurately recall what they see, a problem made far more profound by the fact that juries are likely to accord eyewitness testimony greater credence than virtually any other form of evidence.  But a growing body of research has shown that problems also arise as a result of police procedures.

The guys over at the Eyewitness Identification Reform Blog (you’re really not surprised there is such a thing, are you?) chronicle an example of one such case, that of Thomas McGowan, who was convicted of rape based upon his identification from a photo array:

The photo array from which the victim selected his photograph was a sloppy collection of black and white photos, color photos, and photocopies of photos. Not surprisingly, Mr. McGowan’s photo was a color original. Further, after the witness tentatively pointed to Mr. McGowan, the investigating officer insisted that the witness make a positive ID, rather than allowing her to describe her level of certainty in her own words.

McGowan spent 23 years in prison for rape — from age 26 to age 49 — before DNA evidence demonstrated his innocence.

In fact, the new Dallas District Attorney, noting the frequent problems with photo arrays, is proposing a double-blind lineup procedure for the arrays: the police officer who shows the witness the pictures doesn’t know which picture is the suspect’s, or whether he’s even included in the pictures.  The use of a double-blind procedure is universally followed in all fields of research, because it eliminates any possibility of even unconscious bias; if the officer doesn’t know who the suspect is, he’s not going to communicate any information at all to the witness.

What struck me about this is that I’ve been doing this blog now for exactly two years.  Although the blog is devoted to Ohio — that’s what it says up in the corner — I’ve spent a fair amount of time checking out what’s happening in criminal law in other jurisdictions, and there’s a lot going.  There’s reform of sentencing laws, like remedying the crack-cocaine disparity, or getting away from the “lock-em-up” mentality that has resulted in the United States holding more prisoners than any other country in the world.  There’s reform of criminal procedures, like video- and audio-taping all police interrogations to ensure the integrity of confessions – about 15% of wrongful convictions stem from “confessions” by innocent people.  Discovery rules have been liberalized to reduce the possibility that exculpatory evidence might be missed.  My God, the prosecutor of Dallas — Dallas – is concerned enough about wrongful convictions that he’s instituting identification procedures which will reduce that possibility.

None of this is happening in Ohio.  The only effort at resolving the crack-cocaine disparity was a proposal which would have simply elevated cocaine penalties to the same level as those for crack.  Sentencing is far worse now than it was before the sentencing “reforms” of 1996.  The defense bar has been trying to get fairer discovery rules for years, to no avail.  Nobody’s even talking about videotaping confessions or making sure that identification procedures are fairer.  Even the Telfaire instruction, a proposed jury instruction which details the manner in which a jury should evaluate identification testimony, is of limited value:  the Ohio courts have not done anything more with the instruction than hold that the trial court has discretion whether or not to give it.

Estimates are that as many as 10% of the people convicted at trial are actually innocent.  There’s all kinds of empirical research coming out now explaining how that happens, and how to prevent it.  As far as Ohio is concerned, that might as well be happening on another planet.  There’s no discussion of sentencing reform — more on that tomorrow — and virtually no discussion of reforming criminal procedures.  Most of that stuff isn’t even on the radar.  You won’t find case law discussing it, you won’t even find the defense bar pushing any of this stuff.

At some point in time, that’s got to change.

Back in 2004, Kenneth Daniels was representing a criminal defendant, Erica French, in Hardin County, Kentucky.  Erica, it turns out, had some information of value in another case.  The prosecutor in that case, Robert Stevens, had approached her about testifying in the other case.  Erica told Daniels that the conversation with Stevens had turned decidedly “personal.” 

This created some concerns for Daniels, and those concerns only deepened when Erica told him that Stevens had arranged to come to her house the next morning to review the defense lawyers’ cross-examination in the other case, in order to “prepare her to testify.”

Right.

Erica told Daniels that she was concerned that Stevens was going to make certain demands, and that if she didn’t give in to those demands, it was going to queer the deal in her own case.  Daniels then did two things.  The first was to assure Erica that her fears weren’t reasonable.  This turned out to be untrue, but, in the grand scheme of things, Daniels’ advice on this point was inconsequential.

That’s because the second thing he did was to install video equipment in Erica’s house, including a video camera set up in a vent in her bedroom.  He then told her to make sure she didn’t have sex with Stevens. 

The next day, Erica called Daniels to report about her visit from Stevens.  Turns out that she’d gotten everything on video.  But that part about making sure she didn’t have sex with Stevens?  Well… 

Daniels picked up the video from Erica, headed over to Stevens’ office to have a chat, and over the next few days also contacted the Attorney General’s office and the Kentucky Bar Association, and provided them a copy of the tape.

For his troubles, Daniels was indicted for video voyeurism, a felony in Kentucky and, later on, for intimidation, based on the claim that he tried to use the videotape to threaten Stevens.  He wound up entering a plea and going into a five-year diversion program.  A few months back, the Kentucky Supreme Court cut him a break:  it had suspended him for five years, but decided that if he got out of the diversion program earlier than that, it would reduce his suspension as well.  As long as it wasn’t reduced below three years.

And the prosecutor?  The one who’d used the power of his position to extract sex, which comes fairly close to some of the more progressive definitions of rape?  He lost his job, of course, was prosecuted for misdemeanor “official misconduct,” and was given a public reprimand by the Kentucky Supreme Court.

There’s a moral there somewhere.

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

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

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

On to the courts of appeals…

Criminal.  2nd District says that defendant charged with aggravated vehicular assault may have point that adult victims of crash may have “facilitated offense” by not wearing seatbelts, thereby creating mitigating factor for sentencing purposes, but child victim didn’t, so 5-year sentence is upheld… Hospital security officers not state actors for 4th Amendment purposes, says 2nd District… 8th District says that standard for review of sentence is not abuse of discretion, but whether sentence contrary to law; upholds trial court’s decision to have drivers license suspension for drug violation not take effect until defendant released from prison… Trial court granted defendant judicial release, violated him, ran sentence consecutive to others handed down by other courts since his original sentencing, 3rd District reverses…

Civil.  2nd District upholds trial court’s exclusion of four experts who proposed to testify that child’s mental retardation was result of his mother’s exposure to workplace chemicals while she was pregnant; excellent discussion of standards for expert testimony… 6th District upholds rule that patron of bar can’t sue bar for accident off-premises resulting from patron’s own intoxication; plaintiff’s decedent in this case had whopping .35 BA level… 10th District reminds everyone that the granting of a motion in limine isn’t a final appealable order… 8th District affirms award of $400,000 for malicious prosecution against City of Cleveland; police detective had admitted to defendants’ attorney that he knew they had nothing to do with incident, but proceeded with indictment when they refused to give statement against third party.  What’s worse, city got hit up for $144,000 in prejudgment interest; city offered nothing before trial, and the two plaintiffs would’ve taken $20,000 each… 9th District says that municipalities no longer liable for injuries caused by failing to keep sidewalks in repair after legislature’s amendment of sovereign immunity statute in 2003… 12th District reverses summary judgment in legal malpractice case, says absence of written fee agreement not dispositive of whether attorney-client relationship existed…

If you want the job done right, do it yourself.  In State v. Akeyinde, the 2nd District had granted defendant’s pro se motion to reopen his appeal, finding that appellate counsel was ineffective for failing to argue that trial counsel was ineffective for failing to object to certain hearsay testimony.  It appointed new appellate counsel, who filed a brief which also failed to argue the hearsay question.  The defendant moved to strike the brief and be allowed to proceed pro se.  The court granted the motion, considered the defendant’s brief, and reversed his conviction.

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

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

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

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

I was reminded of that as I was sitting in court yesterday afternoon.  I was waiting for my turn before the judge, but there were several sentencings ahead of me.  I wouldn’t have minded so much if the events ahead of me were pleas, like mine.  Those generally have a finite duration:  the prosecutor recites the deal, I say, yeah, that’s it, the judge goes through the guy’s rights, the client says he’s guilty, and it’s time to move on to the next case. 

Not so much with sentencing; like snowflakes, they came in myriad shapes and forms.  In this one, an attractive young lady lawyer felt compelled to share with the judge every detail of her client’s descent into the hell of drug addiction, and halting climb therefrom, a climb, the attorney assured the court, which would be aided by the strict monitoring that community control sanctions would assure.  As I listened to the lawyer regale the judge with her client’s litany of woe, I sensed a feeling very much like the one I get when the woman ahead of me in the grocery line has a bunch of coupons.  I found the lawyer’s presentation polished and articulate, and it was all I could do to keep from going up and strangling her with my bare hands, just to get things moving.

The second sentencing was shorter, and more amusing.  Another drug case — quelle surprise — and the defendant had been promised at the time of his plea that he’d get probation if he did some simple things, like start going to Narcotics Anonymous meetings and stay off of drugs.  Alas, that was asking too much.  What’s more, the defendant apparently subscribed to the theory that if one must fail, one should fail spectacularly:  with each answer to the judge’s questions, it became clear that the defendant not only had failed to abide by the judge’s instructions, but was supremely disinterested in doing so.  The judge tried his best to talk him back down off the ledge, to no avail.

A little while later, I ran into the attorney who’d handled the case, and we commiserated on the extent to which our clients will do their utmost to talk themselves into prison.  “The best part,” the lawyer told me, “is that as he’s being led away, the guy asked me to get his belongings from the back of the courtroom.  So I did.  Coat, keys, cigarettes… and a box of condoms.”

“Looks like you’re gonna have a fun afternoon,” I said. 

Speaking of criminal law, I’ve noticed that almost all of my posts lately have dealt with the subject.  There’s always been a pronounced tilt in that direction on this blog, but I usually have sprinkled in an occasional discussion of some aspect of civil law.  Haven’t done that in a while.

Which is surprising, considering I’m an expert on the subject.  At least, Lexis thinks so.  A couple months back, I got an email from them, saying that they were going to be offering a new feature — “Expert Commentary” — and they’d seen my blog and figured that I’d be perfect for the part.  Five commentaries, two to four pages each, each on a case involving some aspect of civil procedure or evidence.  They’d pay me three hundred dollars a pop, which, they acknowledged, was not market rate for the time it would take (then again, there’s not exactly a line forming outside my door of people wanting to pay me to write these blog posts), but, they assured me, the big thing wasn’t the money, it was the prestige of having people click on a particular case and seeing “Expert Commentary by Russ Bensing.”

Figuring that, along with the proverbial three-fifty, would get me a cup of the Caramel Frappucino at the nearest Starbucks, I went along with it.  For my first commentary, I picked Hayes v. Oakridge Home, a case on arbitration out of the 8th District.  (If you’ve got Lexis, click on the get document feature and use the cite 2008 Ohio 787.)  I put together a nice little piece explaining the law in this rapidly-developing area, little of which makes any sense, but it sure did after I got done with it.  I sent it off, and the guy at Lexis — I guess he’d be called my handler, if he worked for the DEA and I was his snitch — sent back an email telling me it was very well written and exactly what they were looking for.

So I sat back and waited for the phone to ring off the hook with people demanding my expertise.  A few weeks later, when it hadn’t, I decided to check out the Hayes decision on-line and see how my work had been handled.  Sure enough, there it was, just a few lines under the caption:  “Russ Bensing on Hayes v. Oakridge Homes and Enforcement of Contractual Arbitration Provisions,” in big bold print.

And in equally big bold print, a “($)” sign next to the “Expert Commentary” right above that.  Turns out that unless you’re one of those big law firms who have signed up for every database and feature that Lexis offers, to the point where they even come out and do your laundry once a week, you’re not going to be able to read my words of wisdom unless you pony up $50.

In fact, I can’t read my words of wisdom unless I want to shell out the money.  What’s worse, they edited the “teaser” — the couple of sentences you get to read for free — so that it doesn’t make any sense.

Fifty bucks was what I made for sitting around for an hour in court yesterday afternoon for my plea.  I think I’ll wait ’til my expert commentaries hit video.

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

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

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

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

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

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

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

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

The 8th District nixed that, citing a number of cases, including one from the Ohio Supreme Court, holding that such “anticipatory sentencing” is impermissible because “it interferes with the discretion of the second trial judge to fashion an appropriate sentence.”

The other case on consecutive sentencing last week was the Ohio Supreme Court decision in State v. Bates.  Bates represented the flip side of Caraballo:  in Bates, the Miami County trial court imposed a sentence consecutive to one that a Montgomery County court had already imposed.  The question was “whether a trial court has the authority, generally, to order a prison sentence imposed by it to be served consecutively to a prison sentence previously imposed by another Ohio court.”

That might have been problematic two and a half years ago.  At that time, Ohio’s sentencing laws, specifically  RC 2929.41(A), contained a presumption for concurrent sentences, and consecutive sentences couldn’t be imposed unless the judge made certain findings.

Of course, those findings resulted in State v. Foster, which held that judicial fact-finding was prohibited by the US Supreme Court’s decision in Blakely v. Washington.  The statute which required factfinding for imposition of consective sentences was held unconstitutional and excised from the statutory scheme as was RC 2929.41(A).  The Price court thus had no problem concluding that

the trial court now has the discretion and inherent authority to determine whether a prison sentence within the statutory range shall run consecutively or concurrently, and we hold that the trial court may impose a prison sentence to be served consecutively to a prison sentence imposed on the same offender by another Ohio court.

If that were the only result, it would be unexceptional.  The problem is not the destination, but the journey the court took to reach it.  Basically, as the court viewed it, 2929.41, by creating a presumption of concurrent sentences, was in derogation of the common law rule.  And what was the common law rule?  The Court quoted the language from a 1963 case, Stewart v. Maxwell:

Inasmuch as making sentences for different crimes run concurrently is in the nature of a reward to the convict, * * * it follows that a positive act is required on the part of the sentencing court to cause sentences to run concurrently; and * * * if the entry is silent as to how sentences shall run, it is presumed such sentences will run consecutively.

Does that mean by throwing out 2929.41, we go back to the common law rule, and if the judge doesn’t specify whether sentences are concurrent or consecutive, they’re deemed to be consecutive?  Let’s put it this way:  if I’m representing a defendant that’s being sentenced for multiple crimes, I’m going to do everything I can to make sure the judge includes language that the sentences are to be served concurrently.

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

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

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

On to the courts of appeals…

Civil.  2nd District reverses grant of directed verdict for hospital and doctor, says jury should have been allowed to consider plaintiff’s theory that doctor was negligent in not offering c-section as method of delivery… 10th District holds that trial court was wrong not to declare mistrial in accident case where plaintiff’s mention of insurance was intentional, not inadvertent… Plaintiff’s appeal from grant of summary judgment, file six-paragraph appellate brief saying they incorporate the arguments from the brief they filed in the trial court, 8th District says that’s not the way it works, disregards assignment of error for “lack of briefing,” affirms judgment… 10th says that while punitive damages not recoverable in wrongful death action, may be recoverable in survivorship action; case also includes lengthy discussion of employer liability for punitive damages for employee’s intentional tort… 3rd District holds that trial court properly considered interest father could have earned on $650,000 personal injury settlement in calculating child support…

Criminal.  Jury seeing defendant being transferred to jail in handcuffs, in jail clothes, and with other defendants during break in trial not enough to warrant mistrial, 2nd District rules… 8th District says that defendant stopped for traffic violation not “in custody” for Miranda purposes… 4th District holds that trial court should have instructed on simple assault, says evidence in record not sufficient to establish that scissors were “deadly weapon“…  8th District says defendant confronting clerk outside of counter, leading her back to counter to rob store, not sufficient additional animus to support kidnapping charge… 9th District reverses grant of motion to suppress, says that driving behind closed commercial buildings late at night with lights extinguished gives reasonable suspicion of criminal activity… Moment of Duh:  prosecutor asks defendant on cross if he’d tried to get a plea bargain; 8th District says that’s not enough to warrant a mistrial, but reverses for other prosecutorial misconduct…

Too much time on my hands…  The defendant in Springfield v. Morgan filed an appellate brief containing no fewer than seven assignments of error from his conviction and $100 fine for failing to yield the right of way.  Among the assignments were claims that the citation was insufficient “because the issuing officer did not include his badge number or mark the court code and district number.”  The 2nd District wasn’t buying.

Bullshit legal theory of the week.  The plaintiff in Bradley v. Sprenger Enter., in her suit claiming she’d been wrongfully terminated for excessive absences which occurred after her mother’s heart attack, initially alleged that she was discriminated against “based on her association with a disabled person,” and then asserted a new basis for her claim:

that knowledge of her mother’s heart attack rendered her temporarily disabled by virtue of “anticipatory bereavement” and that the Employer had a duty to accommodate her “disability.”

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

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

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

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

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

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

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

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