Case Update
The biggest legal news coming out of D.C. isn't being produced by the Supreme Court. In fact, it'll be coming out of a U.S. Courthouse in the Southern District of New York, where this afternoon a District Judge, Kimba Wood, will decide on whether to sustain Michael Cohen's claim of attorney-client privilege as to the items seized from his office and hotel room. I guess, as an attorney, I'm supposed to be outraged at this assault on one of our most sacred privileges, but I have a hard time projecting Cohen's travails on me. The only thing Michael Cohen and I have in common is that we both passed a bar exam. He's Trump's lawyer, and Trump may well be his sole client. I came away from the whole thing feeling that it all boils down to, as the Daily Beast put it, whether there's such a thing as a consigliere-client privilege.
Besides, despite the awesome power the Federal government brings to bear upon those it accuses of crimes, when it goes after someone big, at least it's a fair fight.
This Supreme Court term will produce major decisions which have long-lasting ramifications: on unions, redistricting, and religion, among others. Among my CGI-created horde of regular readers, I'd wager that the number whose predominant waking thought is the question, "Can the government force me to make cakes for queers?" approaches the null set. You came here to read about what's happening in criminal law, so let's talk about that.
So far this year, not much. February brought us Class v. U.S. (link is to ScotusBlog page), with the simple holding that a guilty plea does not bar a defendant from challenging the constitutionality of the statute on appeal. I can't tell you how many cases of mine that will impact. Oh, wait, I can! Zero.
Ayesta v. Davis came a month later. Ayesta, who'd been sentenced to death, argued that his trial lawyers were ineffective for not gathering more mitigation evidence to present at the penalty phase. He asked for expert funding for obtaining it, but the district judge and the appellate court ruled, without any apparent sense of irony, that Ayesta had to show that he'd be successful before being granted the funds to get the evidence to be successful.
This Helleresque holding got unanimously reversed, but it's not going to have any application beyond Federal habeas cases. It can't even be extrapolated to state post-conviction proceedings here. A Federal statute provides for expert funding in habeas. There's no such thing in Ohio. In fact, while on the one hand the courts here have insisted that post-conviction relief is a civil remedy, it has refused to allow the petitioner the right to use any of the civil methods of discovery.
And that's about it so far. There are three big Fourth Amendment cases still awaiting decision. They were all argued in December or January, so I'd be surprised if they don't come down soon, well before the last-of-June rush.
ScotusBlog is a great site, but not exactly a fun read; you get headlines like "Argument preview: Justices to consider the scope of tribal fishing rights." But there's a fascinating article on the ideological shift in the Court. There's a metric, the Martin-Quinn Scores, which measure each justice's relative position on the political spectrum. The very short version is that last year (the 2016 term) is the first in recent memory with five justices who scored on the liberal side.
That shift could come to an abrupt halt: there's growing talk of Kennedy retiring after the end of the term, and unless the Democrats can beat the odds and take the Senate, Trump's going to farm the job of nominating someone to the Federalist Society, and there's not going to be any question about the nominee's future Martin-Quinn Scores.
I wish I could tell you that the Ohio Supreme Court has counterbalanced the paucity of SCOTUS decisions, but I can't. Three weeks ago we learned that sentencing errors are not cognizable in state habeas corpus, not much of a surprise given that pretty much nothing else is, either. A week before that the court held that a judge could give community controls on one offense and prison on the other; the 8th District determined that that was an impermissible split sentence. And Tyrone Noling, who's on death row for a crime that an increasing number of reasonable people believe he didn't commit, gets another test of DNA evidence.
An interesting decision out of the 11th District in Girard v. Oakman. Not so much the legal issues. At the initial appearance on March 15, everybody agreed that the case would go to trial in two weeks, and the defendant could file a jury demand. That very day, the clerk's office sent out a judgment entry about the new date, but identified it as a pretrial, not a trial. On the designated date, the defendant and attorney show up, and are told that the case is indeed going to trial. The panel holds that the lawyer was entitled to rely on the clerk's designation.
But here's what's more interesting. Oakmon is arrested in his home for domestic violence, and one cop takes him into the main bedroom. The cop's already been told by the wife that Oakmon has guns. The room's dark, the cop asks where light switch is, and Oakmon starts roaming around the darkened room, talking about finding a remote. The officer sees that there's a gun on the nightstand, and this is what happens next:
The officer pulled his own weapon from its holster, pointed it at appellant, and ordered him to keep away from the firearm. Appellant did not stop immediately and continued toward the firearm with his hand extending forward, causing the officer to yell his command to stay away three more times. Ultimately, appellant did stop, but not before his hand was only six to eight inches away from the firearm.
And I'll bet more than a few of you read that and thought, if Oakmon had been black, he would have taken a bullet, and probably several, before he got within six to eight feet of that gun, let alone six to eight inches.
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