Odds and Ends
On Monday, I did a post on the increasing use of paramilitary police raids in America, as exemplified by the recent shooting of the 88-year-old woman in Atlanta. The site referenced a paper by Radley Balko of the Cato Institute. The Institute also has provided an interactive database, which can be found here, which allows you to check out reports of raids gone wrong by type of incident, year, and state, or a combination of all three. There've been several incidents over the past few years in Ohio, including this one near Dayton in 2002:
More than two dozen police officers emerge from from the nearby woods and swarm the farmhouse of Clayton Helriggle, 23, and his four roommates. The most experienced members of the team have less than four hours of tactical training, while others have never trained with the SWAT team before. The search is based on very little surveillance and tips from an informant, who is awaiting sentencing for more than a dozen crimes and would later be charged with lying to law enforcement officials.
Helriggle was shot and killed in the raid. The raid netted a little over an ounce of marijuana. One of the roommates commented that "it was nothing a good divorce lawyer couldn't have gotten us out on a misdemeanor."
Several lawyers raised questions to me about a statement I made in the Weekly Roundup last week about a case out of the 5th District which, I said, stood for the proposition that "a prosecutor can comment on defendant's failure to call witnesses." The case involved whether a particular witness had been called, and they thought my statement was a bit broad. As everybody knows, a prosecutor can't comment on a defendant's failure to testify, and they thought that a general statement by a prosecutor that the defendant hasn't called witnesses or presented evidence could be deemed as an impermissible comment on the defendant's exercise of his Fifth Amendment rights.
It's not. The case law is pretty clear that the prosecutor can make comments that the state's evidence is "uncontroverted" or that the defense hasn't presented any evidence to the contrary. The Supreme Court held that here, and there's a fuller discussion in this recent 4th District decision.
On the other hand, that's state case law. Since this is a Federal constitutional issue, it's not improper to cite Federal law, and this decision out of the 7th Circuit is a nice one to have in your trial law folder:
We have repeatedly recognized that indirect commentary on a defendant's failure to take the stand can also constitute a violation of the defendant's Fifth Amendment privilege not to testify. A prosecutor's comment that the government's evidence on an issue is 'uncontradicted,' 'undenied,' 'unrebutted,' 'undisputed,' etc., will be a violation of the defendant's Fifth Amendment rights if the only person who could have contradicted, denied, rebutted or disputed the government's evidence was the defendant himself.
Note that last line: it doesn't prohibit the state from making any comment about a failure to call witnesses, only when the defendant is the only witness who could've been called on the point. One more thing to keep in mind: it doesn't do you any good on appeal, at least in Cuyahoga County. The 8th District has specifically rejected this position, and this case. I'll do some checking to see if I can find any 6th Circuit cases on this, because it's still a Federal issue, and you might want to preserve it for that down the road.
Lastly, technology is proceeding apace at the Ohio Supreme Court. You can sign up for their case notification service here (you have to create an account), which allows you to specify which cases you're interested in tracking; the Court will send you notification whenever anything happens in the case, either by email or RSS (more on that in a minute). Second, all documents filed with the Supreme Court will be available on their site. That includes briefs. It'll take a while, but that should provide a valuable research tool.
Finally, you can get an RSS feed from the Supreme Court's website. Here's a good explanation of what RSS is, what benefits it provides, and how it works. The (real short) version is that instead of having to go to a website, you can just check your RSS reader and get a one or two-line synopsis of what's posted on the site, allowing you to decide whether to investigate further and read the whole thing. Sadly, the instructions posted on the Supreme Court's site on how to do this don't work, at least for Google. A better idea is just to click on this link, then paste it into your RSS reader. If you're using Internet Explorer 7, which you can download here, it comes with a built-in reader. By the way, this site also features an RSS feed. Click on the RSS link at the top right, and paste the resulting link into your reader. Again, if you have IE 7, you can skip that last step; it'll do it automatically.
Comments