Results matching “speedy trial delay”
What's Up in the 8th
Last year, of the 13,520 criminal cases resolved in the Cuyahoga County Common Pleas courts, exactly one was dismissed for lack of speedy trial. There'll be at least one this year, too, because that's what happens in State v. McCaughey.
Case Update
Neil Gorsuch cast his first major vote last week. It provided a majority approval for Arkansas to kill Ledell Lee, the first time in a dozen years that the state has executed anyone.
But that opened the floodgates, as we say in the law biz. Lee was one of four inmates that "got the cocktail" in Arkansas last week.
One of the trio of drugs used in the state's killings was midazolam, a sedative. Pharmaceutical companies won't sell that anymore unless the buyer - usually governments - agree that it won't be used for executions. Arkansas' supply was due to run out at the end of the month, and so the state what one commentator aptly termed "a lethal clearance sale."
But at least we won't have to worry about keeping safe from Jack Jones, the first to meet his maker that night. Not that we had much to worry about anyway, given that he's an overweight 52-year-old amputee. Three hours later, Marcel Williams met the same fate on the same table, marking the first time in eighteen years that a state had executed two people on the same day.
It could have been worse: Arkansas actually had eight executions lined up for the month, but four were stopped by court order.
Not by Neil Gorsuch's order.
Victim's rights
Justice delayed is justice denied, and it was certainly delayed for Maurice Clark. He waited five and half years for the trial of his rape case, enduring continuance after continuance -- twenty of them in all.
But he'd been out on bond the whole time, so he wasn't complaining about the delay. His victim, LaTreese Miller, was. She finally filed a mandamus action in the court of appeals asking them to order the judge to try the case. The appellate court mooted the action when the judge finally held the trial, but before that the judge responded to the petition, arguing that victims such as Miller have no standing to raise the issue.
They will if a new initiative to the Ohio Constitution is passed this November.
Case Update
Just three weeks until SCOTUS swings back into action, hearing oral argument in three criminal cases, so I'll have something to write about then. Not that I don't now, with the Ohio Supreme Court's decision a couple of weeks back in State v. Thomas.
The realization that there were several thousand untested rape kits gathering dust in the evidence rooms of the Cleveland police department has resulted in two legal issues, with me, as luck would have it, at the center of both. The first is the issue of pre-indictment delay, which was resolved back in July in State v. Jones (discussed here). The court found fault with the 8th District's analysis of the issue, which had commingled the two-step analysis - determining whether the defendant had suffered actual prejudice, then whether the delay had been justifiable - but rejected the State's proposed test for actual prejudice, which would have made establishing a claim virtually impossible. We'll see what happens on the rebound.
Thomas presented another issue stemming from the delayed prosecutions. A rape committed prior to July 1, 1996, was punishable by an indeterminate sentence, with a minimum of five to ten years, and a maximum of twenty-five. That's when SB 2 took effect, and that heralded the introduction of "truth in sentencing" with determinate sentences: if the judge gave you eight years, you did eight years. There was an uncodified provision in SB 2 which provided that anyone who committed a crime before its effective date was to be sentenced under the old law.
Then along came HB 86 in 2011, which reduced a lot of sentences, and which contained its own uncodified provisions saying that anyone being sentenced after the effective date, regardless of when the crime was committed, got the benefit if the sentence was less. So for all these cold case rapes, many of which were committed before July 1, 1996, which law controls?
The competing contentions are hashed in more detail in my post about the oral argument. Suffice it to say that I slew the dragon of the Cuyahoga County Prosecutors office, as well as the Ohio Prosecuting Attorney's Association and the Franklin County Prosecutor, which had entered the fray against me. My strength is as ten because my heart is pure.
Something like that. Maybe I need to stop going to those Renaissance Fairs.
Anyway, having channeled my inner Sir Lancelot, let's take a look at what's happened in the court of appeals.
Case Update
Can you claim ineffective assistance of counsel when you're not entitled to one? The 5th District addresses that weird question in State v. Dunlap. Dunlap filed a motion in 2014 to vacate his 2012 plea to domestic violence. When that got denied, he appealed, one of his arguments being that the lawyer who handled the motion to vacate rendered ineffective assistance by failing to call his trial counsel as a witness during the hearing on the motion to vacate. But while a defendant is entitled to appointed counsel for a pre-sentence motion to vacate a plea, the courts have held that a defendant isn't entitled to appointed counsel for a post-sentence motion.
From this, the Dunlap court decides that a post-sentence motion isn't a "critical stage" of the proceedings, because relief is "allowable only in extraordinary cases." Since it's not a critical stage, counsel isn't required, and "we therefore will not recognize a claimed error based on ineffective assistance regarding counsel's performance in presenting said motion to the trial court."
That doesn't sound right, but in fact there are a number of cases holding that you don't have the right to the effective assistance of counsel where you don't have a right to appointed counsel. That usually arises in cases involving discretionary appeals. It's applicability in Ohio is questionable, since counsel is always assigned to a discretionary appeal in the Supreme Court if the defendant's indigent. And note that the Dunlap opinion doesn't indicate whether counsel was retained or appointed, and whether that should matter.
Speedy sentencing and forfeiting the game
Brandon Betterman wanted to go to prison. He'd pled guilty to failing to show up for sentencing in a prior criminal case, and had been sentenced to prison for that prior case. He waited in jail to be sentenced on the failure to appear case. And waited. And waited. After nine months, he filed a motion asking to be sentenced soon, claiming that the jail did not provide various rehabilitation programs that would be available in prison.
Not so fast, said the trial court; there were other civil matters to attend to. (Don't know how they do things in Montana, but the average sentencing here in common pleas court can take anywhere from five to forty-five minutes, depending on the judge. Kind of hard to understand why the Montana court's civil docket couldn't have been reconfigured a bit to allow that.) It didn't get around to sentencing Betterman for another five months, and to add insult to injury, Betterman didn't get credit against the new sentence for the time he's spent in jail; the judge held that was attributable to his old sentence.
So Betterman wound up in the Supreme Court, arguing that the delay in sentencing violated his speedy trial rights. And a few weeks back, in Betterman v. Montana, the Court said it didn't.
Continue reading "Speedy sentencing and forfeiting the game" »
Does Jones create new law?
Back in November, in State v. Mack, the 8th District threw out a case because of pre-indictment delay. The State appealed to the Ohio Supreme Court, and that court's still deciding whether to take the case. My personal feeling was that I hoped the court would take it, because the law on the subject couldn't get any worse for defendants.
I think we're going to find out.
If Mack doesn't get in, a likely candidate is the case that came down a couple of weeks ago, State v. Jones. In my earlier discussion of the decision, I'd said it was "the most defendant-friendly Ohio decision on pre-indictment delay." The State certainly thinks so. It's recently filed a motion seeking to have the case certified to the Supreme Court; according to its rather apocalyptic rendering, Jones is in conflict "with prior cases in eleven other appellate districts and prior cases from this Court."
So is Jones that much of an outlier?
Prejudice and pre-indictment delay
So you and your woman have been going through some tough times, and she goes down to the police station and lays a rape charge on you. Says it happened right there in your friend's apartment: you pushed her into the bedroom and forced yourself on her, while a couple of your friends were sitting there in the living room the whole time.
So you bring the friends in, they testify they never saw anything of the sort, and also get across the idea that you've had a very stormy relationship with this woman, and she's got some axes to grind. Your investigator checks friends of hers to see if she's said anything inconsistent with her story. The cops came and took pictures of the apartment, which shows there's nothing out of the ordinary, no overturned vases, broken furniture. It's an eminently defensible case.
Except for one thing. The charge is that you did this twenty years ago -- exactly twenty years ago, to be precise. The one friend's dead, you have no idea where the other one is. You don't know who her friends were back then, and even if you did, the chances of them remembering anything are zilch, the cops never came and took pictures...
What's Up in the 8th
Let's say you're a probation officer, and you've just finished your first meeting with a fairly attractive defendant who's been assigned to you. As she's walking to the parking lot, you text her, "you look really sexy in that dress."
What are the chances of that ending well?
Case Update
It's the last month for oral argument in the Supreme Court's 2013 term, and next week features a big 4th Amendment issue: in two cases, the Court will consider whether police need a warrant to search the contents of a cellphone incident to the owner's arrest. This week features argument in ABC v. Aereo, Inc., where the Court will consider the copyright laws to see if Aereo can offer streaming of TV shows to people who pay them a fee, without Aereo having to pay the broadcast companies anything. Could be huge, at least for couch potatoes.
Down in Columbus, a big victory for the defense bar, especially those who defend drunk driving cases. We'll talk about that one in detail on Wednesday. In the meantime, let's head over to the courts of appeals, where several interesting cases are on tap.