What's Up in the 8th
Hardly a day goes by anymore without a YouTube video of some cop whaling on one of the citizens he's supposed to preserve and protect. Douglas Odolecki has probably contributed his fair share to that body of work. A purported journalist and "law enforcement accountability activist" who operates under the name Greater Cleveland Cop Block, it's apparently his mission to use his cellphone to chronicle all manner of police misdeeds. Or just be a pain in the ass.
That lands him in trouble, and in Parma Municipal Court, defending against two claims of obstruction of justice, with disorderly conduct and misconduct in an emergency thrown onto the latter for good measure. A jury convicts him of both, and he's sentenced to 240 days in jail, or 240 more days with bars on his windows than the average low-level drug dealer sees.
In Parma v. Odolecki, the 8th District rescues him from the first charge. The Parma police had set up an OVI checkpoint, and Odolecki positioned himself a few blocks north, holding a sign reading "Checkpoint Ahead -- Turn Now." The City conceded that the first part of the warning was appropriate, but the second was a violation of the law. OVI checkpoints are legal, but in Ohio they require that the police forewarn the public about the existence of the checkpoint - the Ohio State Highway Patrol actually hands out press releases with that information - and "a checkpoint must be positioned so that vehicles that do not wish to enter the checkpoint area must be able to exit or otherwise remove themselves." So that takes care of that.
Not so on the second one, although the essence of that crime is the oft-uncharged offense of Being an Asshole. Odolecki observed the police trying to talk a young autistic man out of committing suicide by jumping off a bridge. Odolecki pedaled up to the group, and from a few feet away started video-recording the scene. As one might guess, this did not have a positive effect on the potential jumper. When the officer told him that the kid "was having a real bad day," Odolecki replied, "That's good." He finally walked to the other side of the street, where he yelled profanities, like "Welcome to YouTube, motherfucker." With 90 days removed from his sentence for the first conviction, welcome to Parma Jail for 150.
Another thing that happens with increasing frequency is the testimony of the cell phone expert: proffered by the State at trial, he will show the jury a diagram with all the cell phone towers that the defendant's phone hit, and testify that this shows the defendant was at a particular area at a particular time, usually in close proximity to someone he just shot.
There are numerous decisions on that subject, very few of which find this to be a problem. In State v. Wilson, the panel pretty much drives a stake into the heart of any opposition to that procedure, finding that the "reliability challenge to expert cellular phone analysis has been rejected under both federal and State law." So that takes care of that, too.
Wilson also complains about his 56-to-life consecutive sentences, but if you walk into a woman's house and shoot her nine times while she's sleeping in bed with her two children, you're not going anywhere with that argument. Not with the court, and not with me.
The defendant in State v. Harris is charged with two offenses, an assault/domestic violence case, and the murder of a child several months later, and they're joined for trial. Joinder is allowed when the evidence of each crime is "simple and direct." This was a bench trial, so winning that argument required the panel to hold that one of their fellow jurists across the street needed a pass for the Clue Bus to figure this all out.
But would it have mattered if it had been a jury trial? I've been doing this blog for eleven years, and I'm drawing a blank when I try to remember a case I read which held that there'd been prejudicial joinder.
There is such a case, and if I thought it mattered, I'd give you the name. I ran across it when I was doing a brief on misjoinder in one of my cases, about 15 years ago. The defendant was charged with felonious assault, for trying to drive over several people in a parking lot, and domestic violence, for supposedly hitting his girlfriend some three weeks later.
The defendant rejected a plea offer on the day of trial, and the prosecutor indicated they'd try the more serious crime first. No, said the judge, we'll try them both together.
The panel frankly acknowledged they had no idea why the judge had done this. There's a little quirk in joinder law, though: to preserve it, you have to object before trial, and again at the close of the State's evidence. The lawyer who tried the case didn't know that second part. So that took care of that.
Juveniles got a lot of love from the Ohio Supreme Court last year, and one of the gifts was State v. Hand. Hand had pled out to an assortment of first-degree felonies, including aggravated robbery. That sentence became mandatory because he had a prior juvenile adjudication for aggravated robbery, and under RC 2901.08, for sentencing on just about everything except an RVO spec, a juvenile adjudication counts the same as an adult conviction. No, it doesn't, said the Supreme Court in Hand, holding that the use of juvenile adjudications in that manner violated the defendant's due process rights.
But what about weapons disability based upon a juvenile adjudication? When Hand came down I opined,
There doesn't seem to be a whole lot of sense in arguing that you can't give a guy a mandatory three years in prison based on a juvenile adjudication, but that you can charge him with a crime which subjects him to a three-year prison sentence based on a juvenile adjudication.
Sadly, the 8th District proved singularly unimpressed with my incisive analysis and winsome prose, deciding last week in State v. Stewart that Hand had no application to weapons disability cases.
I was going to say that's not the end of that, but I'm not sure that this is an issue which defense lawyers should push to the Ohio Supreme Court. After what happened in Aalim -- and I'll be in full vent mode on that tomorrow - I think asking the court to clarify Hand might very well result in its reversal.
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