Results matching “speedy trial delay”
Discovery tactics
Is there such a thing as providing discovery too soon? The 5th District thought the defense did exactly that, and rejected a speedy trial challenge a couple weeks back in State v. Johnson.
What's Up in the 8th
The observation that the wheels of justice grind exceedingly
slow is proven out by a pair of 8th District cases last week, State v. Nia and Cleveland v. White. State v. Jennings proves it's never too late to make an
argument, while State v. Pettito proves that sometimes it is.
And State v. Bement and State v. Young prove that there are some cases judges just don't like.
What's Up in the 8th
There are weeks when the 8th District comes down with a
decision, maybe even two or three, which address major issues of law. Other weeks, not so much. Last week was an other week. Still, the court's decisions usually provide
a lesson, maybe even two or three.
Case Update
Phrase for the day: "link
rot." According to this
article from the New York Times,
that's a current problem with Supreme Court opinions: since 1996, the Court has cited to materials
found on the Internet a whopping 555 times.
(Although it would certainly be more interesting to the tinfoil hat
crowd if the number were 666.) Half
those links no longer work. Like the one
in a 2007 opinion which ruled against a driver's claim that the police had used
excessive force in stopping him from fleeing the scene of a crime by ramming
his car. There was a video of the police
pursuit submitted to the Court, and the opinion links to the video. Scalia called it "the scariest chase I ever
saw since the 'The French Connection,'" and Breyer suggested in a concurrence that
readers watch it. It's not there anymore. Thank goodness, a consortium of law libraries
is working on creating a permanent link that can be used by writers and courts,
so it's quite possible that future generations will be able to read my musings
here.
The Supreme Court kicks off the 2013 Term on October 7, and Burt v. Titlow is the lone criminal case
scheduled for argument that week. As I
mentioned when I did my preview three
weeks ago of the criminal cases on the Court's docket so far this year, Titlow presents a reverse-Lafler issue: instead of claiming, as the defendant in Lafler did, that his lawyer was
ineffective for recommending that he go to trial, Titlow contends that his
lawyer screwed up by allowing Titlow to withdraw his plea, resulting in Titlow
getting 20-40 years instead of 7-15. It
should be an interesting oral argument.
Let the games begin
The prosecutor delays giving you discovery, because he knows
the speedy trial clock doesn't start ticking again until he does. You get forty pages of cell phone records,
and you want to give them to your client so he can go through them and figure
out which are significant, but you can't, because the prosecutor has designated
them as "counsel only." The prosecutor
files a certificate of nondisclosure, refusing to give you the names and
addresses of any witnesses, not because he has any real concern about their
safety, but because his office's policy is they don't give out that information
in any case involving an offense of violence.
Despite the exhortation in new Criminal Rule 16, which
adopted "open discovery," that its purpose is "to
provide all parties in a criminal case with the information necessary for a
full and fair adjudication of the facts," there's still some game playing that
goes on. For those of us who've
practiced criminal law for a while and thus gained a more jaundiced viewpoint
of the system, it's not surprising that the it would be a defendant who got
called for game playing in the Supreme Court's decision last week in State
v. Athon.
What's Up in the 8th
One of the nice things about doing this blog is that I learn
a lot of stuff. Just this week, for
example, I learned something I didn't know about inventory searches, what
pretrial motion rulings a guilty plea will waive, and which ones it won't, and
that I probably want to stay away from something called Four Loko.
What's Up in the 8th
Just a month back, I talked about the tendency of several judges up here to sentence low-level felony offenders to a "time served" sentence. However long they'd spent in jail -- two days or two months -- would be their sentence, and out the door, thus avoiding the costs of having the probation department monitor them for the next year or so. The 8th District had consistently struck that down, holding that judges had to sentence a defendant to either prison or community control sanctions; there was no third option. My commentary then was prompted by the latest in a string of such cases, that one being State v. Cox. But lo and behold, just a week later, the court's en banc decision in State v. Nash apparently green-lighted that procedure.
But what the court giveth, it can taketh away, and it does that this week in State v. Ogle.
What's Up in the 8th
Here in Cuyahoga County, the discovery procedure is pretty routine. The defense files its request for discovery, and usually within a day or two, the responses -- reports, statements, the client's criminal record -- are uploaded to the Defense Portal, and an email sent to the attorney telling him that it's there. He can then log in and download it. There's also one other document on the Portal: the State's demand for discovery.
What every defense attorney should do at that point is file a response to it. Doesn't matter that you don't know who your witnesses are going to be, or what documents you're going to provide. Doesn't matter that in all likelihood you won't be calling any witnesses or presenting any documents at trial. Just file a simple pleading saying that you don't have any witnesses or documents you intend to introduce, and if that changes you'll supplement your response.
The reason for doing this is to keep speedy trial time from being tolled. Five years ago, in State v. Palmer, the Ohio Supreme Court held that a defendant's failure to respond to the State's discovery request after a "reasonable time" tolled the speedy trial statute. In that case, the court found that the reasonable time was 30 days, but it gets worse; there are 8th District cases out there which hold that the time is tolled from the point where the State files for discovery, under the dubious theory that the failure to respond to discovery is a "continuance." (And yes, "dubious" is a charitable assessment of the theory.)
So the 8th District's decision last week in In re D.S., dismissing a juvenile conviction for murder and felonious assault on speedy trial grounds, was all the more surprising, since the defense had never responded to the discovery demand at all.
Can I get a [expert] witness?
There are two basic approaches to writing an appellate brief. One is to winnow down the issues to those you believe have some reasonable chance of success. The other is throw every possible allegation in there, hoping that one will stick. I've always been an advocate of the first approach, and I've gotten feedback from appellate law clerks and even judges that the second approach is frowned upon. But several lawyers have been quite successful doing it, and there's no empirical evidence I know of to support either method.
One of the problems with the second approach is that it makes my job harder, because the resulting opinions are usually much longer, as evidenced by the 8th District's decision a couple weeks back in State v. Bolton, which addressed XIV -- whoops, fourteen -- assignments of error and clocked in at a healthy 43 pages. But it also sometimes results in a legitimate issue getting buried, and that's what might have happened in Bolton.
Case Update
Nothing from Columbus, or DC; in fact, there'll be nothing from the latter until the Court commences its next term in October. I'll have a preview of the upcoming cases before that, including the big one on whether police need a warrant to place a GPS device on a car. In the meantime, in rereading some of the cases from last term, I came across an addition to my collection of Favorite Scalia Lines. He can go over the top a lot of times, especially in dissent, but then there's this footnote to the decision in Brown v. EMA, striking down on First Amendment grounds California's law against selling violent video games to minors:
One study, for example, found that children who had just finished playing violent video games were more likely to fill in the blank letter in 'explo_e' with a 'd' (so that it reads 'explode') than with an 'r' ('explore'). The prevention of this phenomenon, which might have been anticipated with common sense, is not a compelling state interest.
On to the courts of appeals, which unlike their betters, have been busy...