Well, I am, from a week-long hiatus.  Not so much the Columbus Seven; the only news on that front is the scheduling of oral argument in State v. Hodge, the case that presents the question of whether judicial fact-finding for consecutive sentences should be reinstated in light of the US Supreme Court’s decision in Oregon v. Ice (discussion here).  That goes down on September 15.  In DC, Elena Kagan gets sworn in, and sometime in the next couple of weeks I’ll have a preview on the cases the Court will be deciding next term.

In the meantime, no rest for the courts of appeals; the 8th District alone handed down 14 decisions in just criminal cases last week.  So let’s take a look… (keep reading…)

One of the things I learned in the past two weeks is that, in a hospital, a nurse telling you that the doctor will be with you shortly means the exact same thing as a bailiff in courtroom telling you that the judge will be with you shortly.

The penultimate week in the Supreme Court’s current term saw decisions in the “honest services” cases, the most significant of which was Skilling v. US.  Skilling, as CEO of Enron, had misrepresented the company’s fiscal health before it collapsed, and was prosecuted for a variety of crimes, including “honest services” fraud.  (Earlier post here.)  While three justices would have tossed out the statute as unconstitutionally vague, the Court doesn’t go that far, but unanimously holds that statute requires proof of some bribe or kickback.  That wasn’t present in this case, so the Court vacates Skilling’s conviction on that count and remands the case back for determination of whether the error is harmless in regard to the money fraud and securities fraud convictions. 

Actually, as much of the opinion in Skilling is devoted to the issue of whether the trial court should’ve granted a change of venue, given the huge publicity surrounding Enron’s collapse.  The Court held that a change wasn’t necessary, and those inquiries are too fact-intensive to lend themselves to recapitulation in a blog post, but if you’ve got a case on that issue, Skilling’s a must-read. 

There were also a couple of 1st Amendment cases.  Doe v. Reed concerned a referendum to challenge a gay-rights law in Washington; the petition signers contended that the state’s public records law, which would have allowed release of their names, infringed on their free speech rights.  The Court rejected that claim, but only as to the facial challenge to the public records act; remaining in the district court, and yet to be addressed, is the claim that release would be improper because it would subject the signers to “threats, harassment, and reprisals.” 

In Holder v. Humanitarian Law Project, the Court upheld a law prohibiting providing any services to terrorist groups, in this case, a Kurdish insurgent group, and the Tamil Tigers, a group promoting an independent state for Tamils in Sri Lanka.  While the HLP’s services were of a decidedly non-terrorist bent — it provided training to the two groups in how to use international law to resolve disputes peacefully and how to effectively petition the United Nations and other international organizations — the Court essentially deferred to the determinations by the executive and legislative branches that even this type of aid could further the terrorist aims of the organizations.

The big case out of Columbus was McFee v. Nursing Care Mgmt.  Nursing Care Management’s policy was that an employee had to be employed for year before becoming eligible for any leave for any purpose.  McFee gave birth eight months after she was hired, and was terminated for violating the company’s leave policy.  The 5th District had held that the company’s failure to provide for maternity leave constituted sex discrimination, but the court reverses, holding that a company may maintain a uniform minimum length of service policy, and that Nursing Care’s policy was “pregnancy blind.”  I don’t know in how many cases Justice Pfeifer has been the lone dissenter, but whatever that total is, McFee increased it by one.

In the courts of appeals… (keep reading…)

While there are still 24 cases to be decided by the US Supreme Court before its term ends in two weeks, only three came down this past week, all involving Federal issues:  Barber v. Thomas concerned good-time credits for Federal prisoners, and Hamilton v. Lanning involved bankruptcy law. 

Perhaps the most interesting was a civil case, Krupski v. Costa Crociere, which concerned whether a motion to correct the name of a party after the statute of limitations had run “related back” to the original filing.  The Court unanimously said it did, taking a much more liberal view of Fed CivR 15 than the Ohio Supreme Court did of the state counterpart a few weeks back in Erwin v. Bryan; there, the court held that identifying “John Doe” defendants had to be done before the statute of limitations expired.

In addition to KRE v. Roberts, discussed Friday, the latter court handed down several decisions this past week.  In State v. Williams, they decided that the statute allowing involuntary commitment of a defendant who cannot be restored to competency is a civil, rather than criminal, proceeding, thus avoiding due process and equal protection problems.  Boley v. Goodyear Tire involved the question of whether Ohio’s statute on asbestos exposure allows a lawsuit by someone who was exposed to the asbestos outside the owner’s premises, in this case, the wife of an employee who died of mesothelioma as a result of breathing in asbestos dust when she shook her husband’s workclothes out before laundering them.  No, it doesn’t, concluded the court. 

In the courts of appeals, there’s nothing of note in the civil side, but plenty  criminal cases… (keep reading…)

Ever wonder why cops treat the 4th Amendment with borderline disdain?  Because they see lawyers and judges spending hours and days mulling over decisions which the officers have to make in a split second. 

(keep reading…)

The only significant decision out of SCOTUS this past week (significant to me, anyway) was US v. Stevens, which struck down on First Amendment grounds the federal statute banning creation or sale of depictions of animal cruelty.  The opinion was not unexpected; the government was left to argue that animal cruelty videos should occupy a place exempt from any free speech protection, like child pornography.  When Bill Clinton had signed the law, he directed that it be enforced only against depictions of “wanton cruelty to animals designed to appeal to a prurient interest in sex.”  That didn’t happen, of course; Robert Stevens, the defendant in this case and the only person ever prosecuted under the law, sold videos of pit bull fights.  Perhaps the most interesting part of the opinion is its response to the argument that the government would interpret the statute narrowly:  “We would not uphold an unconstitional statute merely because the government promised to use it responsibly.”  This may be a foreshadowing of the decision in the trio of “honest services” cases still awaiting decision (discussed here); there too the government seeks to preserve an exceedingly broad statute by saying that it can be trusted to prosecute it responsibly. 

Down in Columbus, the Ohio Supreme Court resumed oral arguments, as I mentioned last week.  Somewhat poignant was the empty seat in the middle, vacated by Chief Justice Tom Moyer’s sudden death two weeks ago.  Appointee Chief Justice Eric Brown will be assuming the seat a week from today.  If four votes can be mustered one way or the other in any of the cases heard with the seat vacant, they’ll be decided; if the remaining six justices tie, Brown will review the case and cast the deciding vote, although he can also order re-argument.

Nothing else of significance came out of Columbus, so let’s take a look at the courts of appeals… (keep reading…)

The gang down in DC really knows how to holiday; nothing’s scheduled for this week, and nothing’s happened in the past two save for Chief Justice Roberts’ yearly report on the state of the Federal judiciary, in which he devotes a substantial amount of time to complaining about judicial salaries (judges were the only federal employees not to get a cost-of-living pay raise last year) and the efforts the branch devotes to saving taxpayers money.  Well, yeah…  It’s worth it to do a Federal case just to get a chance to see the judge’s chambers in the Federal courthouse they built here in Cleveland a few years ago.  I’m not saying they’re spacious, but the first time I walked into one, the secretary pointed me in the right direction and told me the judge’s desk was just over the horizon.  

Down in Columbus, the big decision — and about the only one — was Middleburg Heights v. Quinones,  which involved the question of how municipalities could assess court costs in traffic cases.  The 8th District had ruled that costs could only be assessed per case, rather than per charge.  The Supreme Court agreed, but left a Grand Canyon-sized loophole:  a court can assess “special project fees” on a per charge basis.  And what can a special project fee be?  Just about anything the mind can imagine.

Finally, a reminder in Webber v. Kelly that a reversal for manifest weight of the evidence requires concurrence of all three judges on a court of appeals panel, while reversal on insufficiency requires only a majority.  Two judges had agreed that Webber’s conviction of felonious assault was against the manifest weight, but he didn’t raise an insufficiency argument until his habeas case, and by then it was too late.  Might not have mattered; there are different standards for the two, and a reversal on one doesn’t mean there will be a reversal on the other.

Things didn’t slow down much in the courts of appeals, though; they handed down almost 300 cases in the last two weeks.  The highlights… (keep reading…)

A mere two days after the Oscars, we can safely hand out the Award for the Worst Fourth Amendment Decision of the Year.  The envelope, please… Ladies and gentlemen, let’s give it up for the 9th District’s decision in State v. White. 

The protagonists of our story are Steven Barrett and Cynthia White, whom the police have suspected for some time of running a meth lab out of their house.  Through various plot devices, mainly a snitch, our story is advanced to the point where Barrett is stopped for speeding, and with the aid of a drug-sniffing dog — definitely not man’s best friend — several items are discovered which are ordinarily used in making methamphetamine.  As Barrett was being led to the cruiser in handcuffs, he volunteered without any prompting that he thought there might be a meth lab at White’s house.

The police scurried over there to, as they put it, “do a ‘knock and talk’ in order to ‘further probable cause’ for a search warrant.”  This tactic is coming into vogue:  essentially, the police knock on the door, hoping that the owner will do something stupid, like consent to a search or engage in an act which might give the police probable cause to search the premises.  White didn’t respond to the officers’ knock, but they saw her go into the basement, then run back upstairs, at which point they heard glass breaking.  They stormed the house, arrested White upstairs, and then went into the basement to check for people “who may have been hiding.”  They finally got a warrant at this point, and conducted a full search of the house, which produced no drugs, but sufficient other items to charge White and Barrett with illegal manufacture of drugs.

The trial judge tossed it all out, finding that Barrett’s un-Mirandized statement wasn’t admissible, and that in any event the police should have gotten a warrant.  The 9th District reversed.

Now, understand, I’m not that upset with the result.  I think it’s wrong, but far more troubling than the destination is the journey.

In fact, I can pretty much agree that the court got it right on Barrett’s statement.  The police officers were the only ones who testified at the suppression hearing, and the trial court didn’t find the officers were being untruthful when they testified that the statement was volunteered.  Kinda funky that somebody’s just going to blurt out, “Hey, we’re running a meth lab out of the house I’m living at,” but stranger things have happened.  And I can even see how a court might uphold the search of the house.  I tend to agree with the trial court, that the police can’t claim an “emergency” of their own making, and that the appropriate course would have been to get a warrant.  But it’s not the most ridiculous thing in the world for the appellate court to have found that White’s actions created an emergency situation which justified entry into the premises.  I’ve seen worse.

But that’s not how the court handled it.  First, the court seized on RC 2933.33, a statute passed in 2006 which provides that, because meth labs pose a danger of blowing up, if police have probable cause to believe there’s one in a house, those dangers constitute sufficient “exigent circumstances” to justify a warrantless search. 

Now, this is not a well-known provision of the law.  According to my BFF Lexis, it’s been cited exactly twice by any Ohio court.  Both were by the 9th District.  One was White.  What really will have anyone’s head spinning on its axis is how the court handles the statute, and comes to the conclusion that a warrantless search doesn’t even require probable cause to believe there’s a meth lab, just something “approaching” that.  The court begins by saying that the dangers are so great that this really doesn’t fall within the “exigent circumstances” exception to the warrant requirement, but within the “emergency aid” exception.  The latter, at least according to cases in the 9th District, demands only “some reasonable basis, approaching probable cause.” 

But what about the statute, which does specify probable cause?  The court dispenses with that in language that looks like something the Red Queen might have said in Through the Looking Glass:

While [the statute provides] that “probable cause to believe” that a methamphetamine laboratory exists on premises constitutes “exigent circumstances,” it does not provide that “reasonable grounds to believe” that a methamphetamine laboratory exists does not constitute “exigent circumstances.”

I was temporarily heartened by the fact that two judges merely concurred in the judgment, apparently unwilling to follow the opinion’s author down this particular rabbit hole.  But the concurrences make no sense, either.  The first says the police could have obtained a warrant, then drops that issue without further ado.  It then looks at exigent circumstances (not “emergency aid”), and uses the wrong standard in determining they exist (“reasonable suspicion” instead of “probable cause”).  The second concurrence says that it doesn’t matter whether it’s exigent circumstances or emergency aid, because probable cause is all that’s required, and the parties concede that existed.  Which, of course, the parties didn’t…

I’m sorry, but this is just a flat-out dreadful decision. 

This is going to be a little shorter than usual.  I didn’t have phone or Internet service to my home this weekend, for reasons that AT & T can’t quite explain.  They assure me they’ll fix the problem — by Friday.  Last Thursday I spent over an hour with a guy from Westlaw trying to figure out why it won’t do the same things that Lexis will, and on Saturday I went out to eat and ordered the tuna medium rare, whereupon I was told that the cook only prepares it rare.  Not that there’s a problem with service in this country or anything.

So let’s get to it.  Two decisions from the Supreme Court last week, the first holding that a speeding ticket need not allege that the speed was unreasonable for conditions, the second reversing an 8th District decision and holding that a defendant in a civil case who asserts that he wasn’t served properly doesn’t waive that defense by participating in the litigation.  I’d reviewed the oral arguments in the Supreme Court a couple months ago, and I talked about the problems with the appellate court’s decision when it first came out, so reversal wasn’t a surprise.  On to the courts of appeals…

Several criminal decisions of note:  6th District gives a good summary of case law regarding advising a defendant of PRC at a plea hearing, holds that court’s statement that defendant may have up to 5 years of PRC, when PRC was mandatory, was sufficient when coupled with written plea agreement that correctly advised defendant of term… 2nd District reverses trial court’s grant of motion to suppress, holds that exigent circumstances permitted police to pursue defendant into house in drug arrest… 8th District reverses because trial court permitted detective to give opinion testimony as to witness’ truthfulness… When cop stops car for expired plate and finds out that driver isn’t owner, further intrusion of asking for driver’s ID is “minimal,” says 9th District… A LEADS report qualifies under the business records exception to the hearsay rule, 12th District holds, also reviews other court decisions on that subject.

In the only civil decision of note, the 8th District reaffirms that employment-at-will doctrine not overridden by employee handbook, also rejects promissory estoppel argument in wrongful discharge claim.

And from the Department of Cases I Never Finished Reading:  the opening line in last week’s decision by the 8th District in Dinucci v. Lis:

The case at bar stems from a dispute between neighbors involving the capture and eventual safe release of a house cat.

Two weeks ago, a SWAT team broke down the door of a house in a high-crime Atlanta neighborhood.  It was the home of Kathryn Johnston, an 92-year-old so afraid of intruders that she required the neighbors who brought her groceries to leave them on the porch rather than enter the house.  The police officers pried off her security door, and as they broke down the wooden door into the house, Johnston opened fire with a rusty revolver, striking three of them before they returned fire and killed her.

Normally, the police must knock and announce their presence before executing a search warrant.  The warrant in Johnston’s case contained a “no-knock” provision excusing this requirement.  The sole basis for the warrant itself was the allegation that a “confidential informant” had purchased $50 worth of cocaine from a black male named “Sam” that afternoon.  The only additional basis for the “no-knock” provision was the claim that the informant had told them that surveillance cameras were mounted around the outside of the house.  This could have been confirmed prior to entry.  Or disproved; no cameras in fact existed. 

Neither did much of anything else.  No one knows who “Sam” is or where he’s gone.  Only a small amount of marijuana was found in the house; no other drugs or drug paraphernalia, let alone the “computers and scales” which the warrant claimed were there, turned up.  The informant now says that he never purchased drugs from the house.  The police, who used his credibility to obtain the warrant, say he shouldn’t be believed.

The real tragedy is that what happened here is not unusual by any stretch.  Radley Balko of the libertarian Cato Institute has written a paper, Overkill:  The Rise of Paramilitary Police Raids in America, which contends that as many as 40,000 of these no-knock drug raids take place every year, often with similarly tragic results.  The paper can be downloaded here. 

It’s not a short read, just over 100 pages, but it’s worthwhile.  You’ll get to meet people like Anthony Diotaiuto.  Actually, you won’t get to meet him.  He’s dead; after a police raid on his home based upon a single sale of an ounce of marijuana, the 23-year-old Diotaiuto’s next stop was not the jailhouse, but the morgue, where the coroner extracted ten bullets from his body.  The net result of the raid, besides a dead man whose prior record of violence and crime consisted of a marijuana possession charge at age 16, was the recovery of two ounces of the demon weed.

Edwin and Catherine Bernhardt fared better.  The police broke down their door in a late-night raid, then threw the two of them to the floor and held them at gunpoint while the officers searched the house.  Edwin had been nude, so the police made him wear a pair of his wife’s panties.  The couple was then taken to jail, and sat there for several hours until the police realized they had the wrong address.

All of this is made more interesting by the Supreme Court’s decision this year in Hudson v. Michigan, where the Court voted 5-4 that the exclusionary rule would no longer be applied to violations of the knock and announce rule.  The majority opinion, penned by Justice Scalia — quelle surprise — was rather dismissive of the interests protected by the rule, referring to them at one point as giving “the opportunity to collect oneself before answering the door” and at another as “the right not to be intruded upon in one’s nightclothes.” 

Even before Hudson, the case law indicated a ready willingness of the courts to dispense with the knock and announce requirement, and to permit no-knock raids on the flimsiest of justifications.  Initially, the knock and announce requirement, which predates the adoption of the 4th Amendment, could be excused only if there were “exigent circumstances,” such as a dangerous defendant holed up, often with a hostage, in a situation where surprise might be necessary to capture him.  The drug war led to relaxation of that rule; in 1995 the Supreme Court held that knock and announce wasn’t necessary with if there was a danger that the drugs could be destroyed. 

Oftentimes, not much more than that is offered as a rationale for seeking a no-knock warrant.  That’s not much of a standard; it’s true of virtually every drug search.  Sometimes the police offer the additional reason that there are known to be guns in the house.  (Diotaiuto, for example, had a concealed weapons permit.)  Actually, a no-knock raid in that situation can heighten the dangers to the police; as even the Hudson Court acknowledged, one of the reasons for the knock and announce rule is that “unannounced entry may provoke violence in supposed self-defense by the surprised resident.”

The knock and announce requirement is not the only 4th Amendment casualty of our War on Drugs, now entering its fifth decade.  Forfeiture laws have expanded greatly despite almost universal condemnation of their unfairness.  Police regularly violate the privacy of drivers, pulling them over for traffic infractions which are acknowledged by everyone to be mere pretexts for fuller detentions and possibly searches.  People in the inner city are routinely stopped and frisked. 

It would seem that if we are going to further erode privacy concepts by allowing the police to storm our homes in combat gear, armed with assault weapons, we should reserve that for the most extreme situations:  a history of violence by the resident of the home, or evidence of a large-scale drug operation.  Permitting such raids on the sole basis of a single small drug purchase can only multiply the opportunities for the type of tragedy that played out in Atlanta.

Couple of recent cases from the 8th District I wanted to talk about. 

The first is pretty straightforward.  A policeman, while standing at an apartment door on another matter, sees drugs in plain view inside.  Can he enter the apartment without a warrant and seize the drugs?

The 8th District said no last week in State v. West.  The cops had responded to a domestic violence call in an apartment building, and had seen an electric cord coming out of another apartment and plugged into a wall socket in the hallway.  (Apparently, this is a common way of obtaining the services of Ready Kilowatt without having to pay for them.)  They knocked on the door, and according to the police, a number of events then transpired, some of which may have actually happened, and others not so much.  (The officer who was standing at the door testified that although he couldn’t observe the bag of crack sitting on top of the TV set, somehow the cop behind him could.)

At any rate, the bag was spotted, the police went into the apartment and grabbed it, and the trial court tossed it.  The appellate court agreed that merely spotting the drugs in “plain view” wasn’t sufficient; the police had to have a justification for entering the apartment beyond just seeing the drugs in there.  The state argued the “exigent circumstances” exception, which allows a warrantless search where the police have a reasonable belief that the destruction of evidence is imminent.  The court wasn’t buying, though, holding that there was no indication the occupants knew that the officers were aware of the drugs.

Judges Blackmon and Rocco were in the majority; Judge Corrigan dissented.  You have a different panel, and you probably wind up with a different result, which is true of most 4th Amendment decisions. 

The other case, State v. Grimes, is a little more puzzling.  The case involved a charge of patient abuse — an alleged assault on a nursing home patient by one of the staff – and the defendant had requested a charge on attempted patient abuse.  The trial court refused, and the court of appeals agreed, but here’s the puzzling part:

The record indicates that although defendant requested an instruction on a lesser included offense, he did not object to the trial court’s failure to give an instruction on a lesser included offense….The failure to object to a jury instruction constitutes a waiver and any claim of error relative thereto, unless, but for the error, the outcome of the trial clearly would have been otherwise.

I’m not sure what that means, because the court proceeds to analyze the question without ever again mentioning the plain error doctrine.  If the court meant to suggest that under Rule 30, a defendant not only has to submit an instruction, but in order to preserve a claim of error has to object when the court fails to give it, that seems to run contrary to a number of Supreme Court decisions, such as State v. Wolons, 44 OSt3d 64, back in 1989.  In fact, Wolons was an appeal out of this district.  The defendant had requested an instruction on intoxication, but didn’t object when the judge didn’t give it.  The court of appeals reversed on a plain error theory, and the Supreme Court reversed that, but held that the defendant did preserve the error by submitting the instruction and the law.

It’s hard to quibble with that analysis.  The purpose of requiring an objection is to allow the court to correct a potential error.  When you’ve gone to the trouble of submitting a written jury instruction and the judge refuses to give it, it seems that you’ve done what’s necessary to preserve the error; requiring a further objection seems to be the classic exaltation of form over substance.