The Briefcase

Small talk on the elevator over at the Justice Center:  "So what you got going today, Joe?"

"Couple pretrials, supposed to start a trial in Russo's room at ten, but I'm on standby for trial in Corrigan's room, so I don't know..."

"That's nothing.  I've got fifty trials scheduled this week."

Actually, that's not small talk on the elevator over at the Justice Center, but it might be small talk on the elevator at the Miami-Dade Courthouse, at least according to this opinion of the Supreme Court of Florida.

Continue reading "Inadequacies of indigent representation" »

The 3rd District's decision in State v. Hadley doesn't tell us directly what Daniel Hadley's politics are, but we can pretty much guess:   when Donald Ayars, a census worker, showed up on Hadley's porch, Hadley hit him with a baseball bat.  Not badly enough to do much damage; Ayars managed to escape to a neighbor, and called 911, while Hadley was calling the same number to give his side of the story.  Felonious assault comes in two flavors -- causing serious physical harm and using a deadly weapon -- and while the evidence wasn't sufficient to establish the former, the State chose to try to drag Hadley through Door B.  He did not go gently, kicking and screaming all the way that he acted in self-defense, and trying to avail himself of Ohio's Castle Doctrine.

Continue reading "The latest on the Castle Doctrine" »

Sometimes the courts try to save a defendant from himself, especially in plea withdrawal cases.  The attorney works out a sweetheart deal, or maybe he doesn't; maybe it's just the best deal under the circumstances, but it will save the defendant a decade or so in prison, maybe a life tail in a rape case, maybe even the needle.  Then the client has second thoughts, tries to back out of it, but the court won't let him.  I've seen it happen in dozens of cases.

It might have happened to Tywand Hudson.  He and two cohorts, Johnny Speed and Michael Brooks, were charged with breaking into the home of a woman and her two children, and robbing them at gunpoint.  That worked out to a count of aggravated burglary, and three each of aggravated robbery and kidnapping, all with one- and three-year firearms specs.  That meant Hudson was looking at some serious pain:  the robbery and the kidnapping would merge, and if you got the right panel in the court of appeals the burglary might, too, but there were three victims, so there's a separate animus for each one, and the three-year gun specs...  Realistically, the best Hudson could hope for on conviction was a sentence of around eight years, and there was a distinct possibility of one in the mid-teens.

Hudson was spared that pain when, in the midst of trial, the State and the defendants agreed to a deal:  a plea to a single count of robbery and one of abduction, both third degree felonies, with a one-year gun spec and an agreed two year sentence.  Sure enough, when Hudson showed up for sentencing two days later, he tried to back out of the plea, but the court denied the motion, and last week in State v. Hudson, the 8th District completed the judicial effort to rescue Hudson from himself.

But maybe not.

Continue reading "Saving Tywand Hudson" »

After a thorough investigation, I can tell you that the rumor that the 8th District judges gather before each conference, hold hands, and sing "Kumbaya" is unfounded.  Sure, you wouldn't know it from last week's spate of decisions:  seventeen of them, and not a single dissent.  Not even a "concurring in judgment only," which is judicial shorthand for "I agree with the result, but everything you said except 'judgment affirmed' is just shy of coherence."   Every single decision, unanimous, even the civil cases.   You could almost feel the love in the room. 

Well, not for criminal defendants.  The dozen cases there feature the following "wins" for defendants:  in State v. Knox, the court affirms Knox's 5th degree felony conviction for possession, but finds that the convictions for drug trafficking - which had merged anyway - were against the manifest weight of the evidence, and in State v. Brown, in which the court vacates one of Brown's two 5th degree felony theft convictions for insufficient evidence, leaving intact his 12-to-life sentence for rape.

Well, since you guys and gals are getting along so famously, might I respectfully suggest another opportunity for mingling?  How about you do an en banc on consecutive sentencing?  Because you really, really need to do something about that.

Continue reading "What's Up in the 8th" »

Three decisions from SCOTUS this past week, one involving Federal pre-emption of state laws, another on patent exhaustion, and a third on bankruptcy defalcation.  I'll wait right here while you scramble off to read them.  Or, more likely, look up what "defalcation" means.

Back already?  Okay.  The more interesting news, in the now-you-tell-us category, was former Justice Sandra Day O'Connor's rumination that perhaps the Supreme Court shouldn't have taken Bush v. Gore.  O'Connor's certainly not the first Supreme Court justice to publicly lament earlier decisions.  Lewis Powell cast the deciding vote in the Court's 1986 decision in Bowers v. Hardwick, which upheld Georgia's sodomy law; Powell retired a year later, and told a reporter in 1990 that "when I had the opportunity to reread the opinions a few months later, I thought the dissent had the better of the arguments."  And there's a fairly lengthy list of justices who came to have second thoughts about their votes in death penalty cases.

No second thoughts any of the justices down in Columbus, or at least none that they're sharing with us.  The only criminal decision was State v. Athon, which we discussed on Friday.  Some interesting cases in the court of appeals, though...

Continue reading "Case Update" »

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.

Continue reading "Let the games begin" »

Gallagher's a good political name in Cuyahoga County.  I can't remember when there haven't been at least two or three judges by that name.  A full quarter of the twelve judges on the appellate court are named Gallagher.  There's one on the general division of the common pleas bench, and one in the probate division.  Like I said, it's a good political name.

Michael Gallagher realized that, too, back in 1990.  He'd had a nondescript career as an attorney -- I'd had a case with him once, and frankly, I wouldn't let him wash my car -- but he'd put in the six years as a lawyer that is the sole requirement to run for judge, so he got the necessary 100 signatures on a nominating petition.  The $50 he spent to file it was the only expenditure of his campaign.  He did no campaigning.  He won.  His judicial career lasted only five years, when he was convicted of selling cocaine to an undercover DEA agent.  So you'd figure that Michael Gallagher would be the poster boy for merit selection of judges in Ohio, wouldn't you? 

You'd be wrong.  When Ohio Supreme Court Chief Justice Maureen O'Connor unveiled her proposals for reform of the judiciary the other day, conspicuous by its absence was any suggestion that judges should be appointed, rather than elected.

Continue reading "Another tilt at judicial reform" »

I've claimed that the obvious purpose of the sentencing reforms of HB 86 was to send fewer people to prison for less time, but you certainly wouldn't know it from last week's spate of decisions from the 8th District:  the six criminal cases of note involved sentences of 33, 31, and 24 years.

The 31 year sentence, handed down just ten days before HB 86 went into effect, went to Takara Kelley, who ran a red light two years ago and t-boned another car, killing two people and injuring three children, leaving one permanently disabled.  The black box taken from the car indicated she was driving 78 mph at the time, three times the speed limit, and she had a blood/alcohol reading of .18, and also cocaine and marijuana in her system.  The decision in State v. Kelley doesn't break any new ground; the major assignment is that the misdemeanor conviction of DUI should've merged with the aggravated vehicular homicide, and everybody agrees that it should, so it goes back for that.  There's an assignment of error that trial counsel was ineffective for failing to raise disproportionality at sentencing, but that goes nowhere.

Continue reading "What's Up in the 8th" »

Seven years ago, I started this blog.  I'm taking the day off today, but the 8th District Roundup will be back tomorrow.

SCOTUSblog tells us that we should expect the Supreme Court to announce some decisions tomorrow, but then again, that's what they told us last week, with the only result being that we all drank deeply from the Cup of Bitter Disappointment.  Okay, not so much.  In any event, the only news from the Court last week was speculation from the Talking Heads on whether and how much the approval of gay marriage in Rhode Island and Delaware (with Minnesota almost certainly joining them this week) might affect the justices as they deliberate the two cases on gay marriage that were argued a month ago.  So that's what it has come to:  instead of writing about the legal effect of decisions the Court's made, I'm writing about how decisions the Court hasn't made will be affected by non-legal factors.

F. Scott Fitzgerald observed that there are no second acts in American lives, but then again, he never met Michael Davie.  Sent off to prison for 33 to 75 years in 1992 for a bevy of offenses, including attempted murder, aggravated burglary, and aggravated robbery, Davie used his prison time to take  paralegal correspondence courses from Blackstone School of Law.  Paroled after 14 years, Davie set about representing people in various matters, including parole hearings, criminal cases, and custody disputes.  All without benefit of a legal degree, something the Supreme Court looks harshly upon.  It smacked him with a $30,000 fine, and last week ordered him to appear before the court to explain why he shouldn't be held in contempt.

That was the highlight of the court's activity, so we're left with nothing else to do but wander over to see what's happening in the courts of appeals...

Continue reading "Case Update" »

Third time's the charm, goes the old saying.  It wasn't for Tyrone Noling, nor for Bearnhardt and Cora Hartwig, at least according to the case laid out by prosecutors back in Noling's trial in 1996.  There wasn't any doubt that in April 1990 Noling had twice robbed elderly couples in their homes, and the State of Ohio claimed that a few hours after the second, Noling went for the hat trick day with the Hartigs.  The difference was that this time the couple, both 81, wound up dead.  The only physical evidence that potentially linked Noling to the killings was that the victims had been shot with a .25 caliber, and that was the gun Noling had stolen in one of his robberies the day before.  That petered out, though, when ballistics found that the killings had been committed with a different weapon.  But two of his co-defendants testified against him (a third had agreed to, but backed out at trial), and that was more than enough for the jury, and for courts that would review and uphold Noling's conviction and death sentence in the ensuing years.

Continue reading "Another look at a capital case" »

"Although the concept of lesser included offenses is easily understood in theory, it can be downright baffling in practice."  That's the first sentence of the section labeled "Analysis" in the Supreme Court's decision last week in State v. Deanda.  Sadly, Deanda, and another decision the court made  last week do not contribute to a lessening of bafflement on the subject.

Deanda knifed a guy, and was charged with attempted murder, but the jury convicted him of the lesser included offense of felonious assault.  Did I say "lesser included offense"?  The 3rd District didn't think so; it reversed, finding that felonious assault wasn't a lesser.  At first blush, that seems clearly wrong.  The jury obviously figured that felonious assault was a fair result -- maybe it found that Deanda didn't intend to kill, maybe it decided that the victim was somebody who deserved a good whooping, whatever.

Continue reading "Another foray into the lesser offenses thicket" »

You're representing a defendant accused of child pornography in Cuyahoga County.  You tell me everything about the offense -- that he's charged with about 65 counts, that there's nothing out of the ordinary (basically, that the charges don't involve anything besides downloading and possession).  You tell me the defendant is 41 years old, has never been in trouble with the law, and that he's been in counseling for his sexual problems.  You have a psychologist who'll come in and testify about that, and the results of the Static-99 indicate he's not a risk of ever molesting a child.  He's got plenty of family support, and a decent job.  You ask me, "How much time is he likely to get?"

"I have no idea," I tell you.  "He could get anywhere from probation to a couple of decades in prison."

Then you give me one more piece of information:  the name of the judge your client drew at the arraignment.

I can probably tell you within a couple of years what your client's going to get.

There's something wrong with that.

Continue reading "Sentencing disproportionality" »

Allied offenses and sentencing were the key issues this week, but I came away from reading the decisions with a basic principle of mine reaffirmed:  Sometimes, you need to know when to shut up.  

Continue reading "What's Up in the 8th" »

The Potomac Nine handed down two decisions last week; rather, one decision and one non-decision, the latter coming in Boyer v. Louisiana.  Boyer had sat in jail for seven years awaiting trial for capital murder, a delay the state courts had found was caused by lack of funding for the attorneys appointed for him.  Upon closer review of the record, five members of the Court decide that the cause was delays sought by the defense - delays, the dissenting liberal bloc claims, which were sought because of the lack of funding.  The five hold sway, and the case is dismissed as having been improvidently granted, to resurface in another form on another day.  The one case decided by the Court was McBurney v. Young, in which the Court unanimously upheld Virginia's Freedom of Information Act, which limited access of government records to the state's citizens.  The Court noted that there is no constitutional requirement that a government open its records at all, a correct if troubling finding, and found that the limitation was not a violation of the Privileges and Immunities Clause, which is probably the last time in a while you're going to see any reference to that clause here, or anywhere else, for that matter.

Down in Columbus, the Olentangy Seven handed down several decisions in criminal cases - State v. Noling, which involves a death penalty case and DNA evidence, and State v. Deanda, the court's latest venture into the morass of law concerning lesser included offenses.  We'll discuss those at the end of the week.  The court also handed down a bevy of disciplinary cases, three of them showing what a randy lot attorneys appear to be.  The mildest was Cincinnati Bar Assn. v. Wieczorek, where the attorney's sexual dalliance with a client he was representing in a DUI case resulted in a public reprimand.  At the other end of the scale was the indefinite suspension meted out in Dayton Bar Assn. v. Greenberg, where the lawyer had sent video and pictures of himself masturbating to what he believed were 12- and 13-year old girls on the Internet, and which were, of course, undercover agents.  (I'm convinced there's a chat room on Yahoo where 12- and 13-year old girls pretend to be undercover agents.)  In the middle of the spectrum is Disciplinary Counsel v. Detweiler.  Detweiler had developed an interest in one of his divorce clients, but she proved unresponsive to his advances.  Apparently subscribing to the observation that not all poems are written with the pen, he sent her a picture of his erect penis.  The board had recommended that he be given a one-year suspension with six months stayed, but the court upped that to a full year's suspension, possibly prompted by the fact that Detweiler had been publicly reprimanded before for having sex with another divorce client.  Yo, dude, time to scale back on the Cialis.

Let's see which appellate court decisions, ahem, arouse our interest...

Continue reading "Case Update" »