The inanity of increasingly restrictive efforts to confine the areas where sex offenders may live has been a frequent topic here. Just a month or so ago I discussed the oral argument in Hyle v. Porter, in which the Ohio Supreme Court will be determining whether those restrictions can be applied retroactively, to people who were living in the restricted zones before the laws were passed. A decision last week by the Georgia Supreme Court takes the argument to a whole new level: whether sex offender residency restrictions are permissible at all.
November 2007 Archives
As anybody who's read my stuff for a while knows, the evisceration of the speedy trial statute is frequently the subject of one of my screeds, as, for example, here and here. The short version (and believe me, you want the short version) is that the Ohio Supreme Court's entire analysis of the speedy trial statute is premised on the assumption that anything the defendant does -- request discovery, file a motion in limine -- will result in a delay of the trial, and thus tolls the time. This runs directly contrary to the language of the statute, which specifically requires that any such action by a defendant have necessitated a delay before that time is chargeable to him.
Well, it looks like my work here isn't done, because along came the 8th District last week and produced a truly mystifying decision on the subject.
The man-bites-dog story this week comes courtesy of the 9th District. One of the less defendant-friendly appellate courts in the state -- which leads to the question, Golly, Russ, which ones are defendant-friendly -- it reversed a trial court's denial of a motion to suppress in a drug case, in State v. Johnson.
Seems that a police officer had received a call from a Motel 6 that one of its tenants had gotten rowdy. The officer responded, and when the tenant opened the door in response to the officer's, the pungent aroma of burning mary jane wafted out of the room. The officer also spied two marijuana blunts, and asked for permission to enter the room, which the defendant denied. The officer upped the ante by demanding that the defendant leave the room, and the defendant responded by trying to shut the door. A tussle ensued, which ended like any other episode of Cops. A subsequent search of the hotel room turned up some cocaine, enough to land the defendant in prison for eleven months.
A month ago, I did a post on the decision of a Summit County judge admitting the results of a polygraph in a criminal case. Thanks to the gang over at the Appellate Law & Practice blog, we now know that the Virginia Supreme Court considered a somewhat-related issue recently, and concluded that the result of a penile plethysmograph was not admissible. For the uninitiated, the penile plethysmograph is perhaps best described in this 9th Circuit opinion from a few years back:
Penile plethysmograph testing is a procedure that "involves placing a pressure-sensitive device around a man's penis, presenting him with an array of sexually stimulating images, and determining his level of sexual attraction by measuring minute changes in his erectile responses."
The big legal news out of the nation's capital was that the Supreme Court agreed to hear the case challenging the District of Columbia's law banning possession of handguns. How Appealing has a bevy of news articles on it, and, if you're really into this sort of thing, you can check out the treatment of it on ScotusWiki (yes, that does exist; I'm not making it up), which has links to all the briefs and other documents.
Closer to home, the Ohio Supreme Court finally handed down some decisions. One of them was State v. Jones, in which the Court ruled that a trial judge didn't have to explain to a misdemeanor defendant that a plea of guilty waived his right to appeal a motion to dismiss the indictment. The actual issue was exactly what is meant by Criminal Rule 11(B)'s requirement that a judge must advise a defendant of the "effect" of a plea. What's interesting is that it was a 4-3 decision, with Justice O'Connor joining Moyer and Cupp in dissent. Moyer especially has long urged a strict and literal adherence to the rules, and it may be he's getting some converts to that position.
On to the courts of appeals...
This is what I'm thinking of today.
What, you thought I was going to write about legal stuff?
See you on Monday.
Back in 2000, I got an email with the subject heading, "Shawn Miller is an evil man." This was pretty much before spam, and before spam filters, and I didn't give it much thought. Turns out it was part of a mass email to all students and alumni of Case Western Reserve University (I'm a grad of their law school) from some guy named Biswaneth Halder, claiming that Miller had hacked into his web site and destroyed it. Halder wound up filing a suit against CWRU, which was dismissed. On April 29, 2003, the 8th District affirmed the dismissal.
Ten days later, Halder, wearing a flak jacket and helmet and carrying a machine pistol and handgun, smashed his way into the Weatherhead School of Management at CWRU. He shot and killed the first person he saw, wounded several others, and was finally arrested after a nationally-televised three-hour siege.
Despite public antipathy toward plea-bargaining -- most people regard it as yet another way in which criminals avoid just retribution for their crimes -- the dirty little not-so-secret is that if we didn't secure pleas or settlements in about 95% of all cases, civil and criminal, the justice system would collapse. Trial is an extremely labor-intensive procedure, and we simply can't tolerate any substantial increase in the frequency with which it occurs. It's not unusual for judges to get involved in attempting to settle civil cases. The perils of getting similarly involved in trying to resolve criminal cases are displayed by the 12th District's decision last week in State v. Schrieber.
In fact, Schrieber presents a textbook case of how not to do a plea. The defendant's claims that he was innocent were brushed off by everyone; there was a serious question of his competency; the judge promised him a sentence of six years; and the prosecution promised that he'd be allowed to withdraw his plea if the judge wanted to give him more than that. The judge wound up giving him seven, and the appellate court threw it out.
This wasn't the first time something like this happened, nor was it the most egregious. Back in 2003, in State v. Gaston, the 8th District tossed out a guilty plea after the trial judge advised the defendant of the consequences of going to trial in this fashion:
THE COURT: Mr. Delaney, have you explained to your client that the sentencing laws of the State of Ohio require the Court to look at various factors, and one of those factors is remorse and taking responsibility for the actions?
"MR. DELANEY: Your Honor, I have but give me one more second. Since the Court put that on the record let me put that to his attention.
"THE COURT: Well, just because, you know, many times defendants don't realize that courts can look at remorse as indicated by their willingness to plead to things they have done. And say [sic] for trials, things that they have not done. And obviously I don't know today which is true in this case, but at the conclusion of the trial the Court will be in a fine position to determine whether or not there was remorse or lack of remorse as evidenced by what goes on at the trial. And sometimes I think defendants don't know that that's a very serious factor that the Court looks at. Especially when the Court is determining whether to run a sentence consecutive, meaning one to follow the other, or whether to run a sentence concurrently. And I think that that's a very important sentencing factor that defendants need to have discussed in private and in confidence with their attorneys.
The appellate court justifiably concluded that this was a veiled threat that Gaston faced some rather severe consequences should he choose to go to trial.
Not-so-veiled, actually. The popular suspicion among both the bar and the public that the decision to go to trial is subject to enormous penalty is borne out by the studies, most recently one by Russell Covey in the Marquette Law Review. As Scott Henson notes in his excellent review of Covey's piece over at Grits for Breakfast,
For starters, using data from state courts, Covey calculates the existence of a baseline 292% "trial penalty," meaning the typical sentence for the same defendant might be three times as high if he or she exercises their constitutional right to trial. That's a big discount, but it's just for starters. Indeed, "Others have calculated average state trial penalties of 300%, rising in some states to as high as 500%. Abundant anecdotal evidence indicates that even higher trial penalties are not uncommon, particularly in dispositions of first-time offenders eligible for probation" Taking into account when charges are actually reduced instead of sentences lessened, Covey says sentencing discounts in some cases can approach 1,000%, meaning the plea deal gets the defendant 10% of the possible sentence at trial.
The flip side of that, of course, is that a defendant can get ten times as much prison time if he goes to trial as if he pleads.
But as long as the judge doesn't put anything like that on the record, it's all good.
No news out of Columbus, save for a bevy of disciplinary decisions and appeals from disqualifications to take the bar exam. Hint: if you're thinking of becoming a lawyer, it's best to get your drinking and drug problems out of the way first. The US Supreme Court added 17 new cases to its decision docket for this term, including two involving voter ID's, two involving whether certain crimes qualify for enhancements under the armed career criminal act (state drug laws in one, felony DWI in the other), and one to determine whether a violation of state law on arrest requires exclusion of the evidence. That last is a biggie, and I'll have more on that later. On to the courts of appeals...
Criminal. 6th District rules that failure of attorney to explain exact statutory requirements for conviction of burglary and felonious assault (i.e., definition of "occupied structure" and "serious physical harm") not ineffective assistance, doesn't require vacating plea... Good discussion of the law on protective sweeps in this 8th District decision; sweep was based on shot being fired as police approached house, turns out policeman accidentally shot himself as he was pulling out his gun... Well, duh: 3rd District reminds trial courts that they can't determine a defendant's a probation violator without holding a hearing; also reverses denial of motion to vacate guilty plea because defendant was given inaccurate information re when he would be eligible for judicial release... Advising non-citizen defendant of deportation consequences of crime at arraingment, but not at plea, requires vacating the plea, says 12th District...
Civil. Things to know: as indicated in this 8th District decision, if you get relief from a bankruptcy stay to file a civil complaint against the debtor, you've got to file the complaint within thirty days, under Federal law... 8th also affirms dismissal of suit against mortgage company claiming that by adding certain fees it engaged in the unauthorized practice of law, stating that only Supreme Court had authority to determine whether practice was unauthorized... Making sure fire hydrants work is a governmental function, says 12th District, giving municipality sovereign immunity when they don't...
This week's Dumb Criminal Award goes to the defendant in the 12th District's decision in State v. Hubbard: if you want to beat that unlawful sexual misconduct with a minor charge, it's probably not a good idea to call the 14-year-old girl and tell her that you love her. Especially if you're calling from jail.
There's a time-honored rule in appellate law that a court shouldn't say anything more than necessary to address the issues at hand. That rule takes numerous forms: the court should avoid deciding a constitutional issue if the case can be decided on statutory issues instead; if there is a reversal on one issue, that usually moots the other issues; and so forth. The mischief that can be created by a court not limiting itself to discussing only the issue at hand are on full display in the 6th District's decision last week in State v. Bragg.
Last week I wrote about a case in which a trial judge in a criminal case had ordered the defendant to produce expert witness reports and the experts themselves at a pretrial hearing, so that the state could examine them. The defendant filed a writ of prohibition with the 6th District, arguing that the judge's ruling went beyond what Rule 16 -- the criminal discovery rule -- provided, especially given that the state's right of discovery from the defendant was conditioned on the defendant first requesting discovery from the state, and he'd never done so. The 6th District kicked the case out, holding that the defendant had an adequate remedy by way of appeal.
Up here in Cuyahoga County, a decision by a trial judge in a capital case has put the shoe on the other foot.
The good... The 8th district's decision last week in State v. Lee. Lee was driving a car that got stopped at a traffic checkpoint where "cars would be randomly selected, and directed to a designated location for further investigation." Lee never made it to the designated location; as soon as the officers approached, they smelled PCP. Their suspicions of drug activity were confirmed when Lee's passenger spat out a bag containing crack cocaine. A search of the car turned up a bag of marijuana, and Lee was charged with transporting marijuana in a motor vehicle, a misdemeanor.
The arresting officer warned Lee to 'fess up to any other drugs he might have before they got to the jail, because bringing them into a detention facility was a felony. This apparently took a while to sink in, because Lee waited until he was being booked to tell the officer that "I got weed on me," specifically, four bags of the stuff.
Perhaps the best indication of the fracturing of the American family is that when we talk about court-ordered visitation, the discussion is no longer limited to parents. By the time the US Supreme Court first considered the constitutionality of statutes permitting non-parent visitation in 2000, in Troxel v. Granville, all fifty states had them. And it wasn't just grandparents or other relatives; the Washington law that the Court considered allowed "any person" to file a petition asking for visitation.
The Court struck that down as a violation of a parent's fundamental rights, which it properly deemed to include determining who got to see the child and how often. The Court held that this didn't mean that visitation could never be granted to a non-parent, simply that the statute in question was too broad, especially in failing to give any consideration to the parent's wishes.
Nothing of note out of Washington, DC, and only some case announcements out of Columbus. There'd been a decision out of the Ohio Supreme Court a week earlier that I'd promised to do a post on, but never got around to it, so here it is: normally, the rule is that a dismissal without prejudice isn't a final appealable order (because you can always refile), but in State v. Craig the Court holds that doesn't apply to the dismissal of an indictment. That sends the case, involving a child rape allegation, back to the trial court, which had dismissed it, without prejudice, because the prosecutor was 45 minutes late in appearing for trial.
At least the courts of appeals were busy...
Insight and remorse being two items in short supply among the prison population, it's unlikely that there are a large number of inmates whiling away their days of incarceration saying, "I shoulda listened to my lawyer." One of them most certainly is not Maxwell Hoffman.
Hoffman was charged with capital murder in Idaho, and the state offered him a deal: plead out to first degree murder and take a life sentence. Hoffman's attorney, though, persuaded Hoffman to reject the deal, telling him that Idaho's death penalty would be declared unconstitutional in another then-pending case. Hoffman took the advice, went to trial, lost, and was sentenced to death. Oh, and that other then-pending case? Ooops. Turns out the lawyer was wrong: the death penalty was upheld.
In 1998, Curtis Simpkins pled guilty to two counts of rape, and was sentenced to eight years in prison. One problem: the trial court forgot to inform him at sentencing, or to include in the journal entry, that he would be subject to post-release controls. The prosecutor's office ultimately caught the error, and filed a motion for resentencing. And so Curtis Simpkins was brought back before the trial court and properly resentenced, so that upon his release from prison, he would have to begin serving five years of post-release control.
His release from prison, it should be noted, was five days later.
I've spent the last couple of weeks highlighting some bad court decisions, so I though I'd make up for it by turning the spotlight on some good news for a change.
It's not easy being a judge. Last month, the Ohio Supreme Court suspended Mason Municipal Judge George Parker for no fewer than 51 separate infractions, among others, that he "directed intemperate and degrading remarks toward parties and attorneys; attempted to coerce prosecutors, defense attorneys and criminal defendants into plea agreements; and used his judicial powers to humiliate courtroom participants." The thought running through my head while reading the decision was Gosh, you mean they're not allowed to do that? Parker had defended the case on the grounds that he had narcissistic personality disorder, and if I didn't want to practice law anymore, I'd probably say something to the effect that that's an occupational hazard of being a judge. But I do, so I won't. And then on top of the decision on Parker comes news from Virginia about the removal of a judge who had decided a visitation issue by flipping a coin.
In truth, sometime I think I'd choose a coin flip, rather than subject myself to the whims of some judges. That certainly would've been the smart move with the judges involved in the case of Browning v. Jennings, a decision out of the 6th District last week.
Nothing out of the US Supreme Court this past week, but on Friday the judges are to have a conference on District of Columbia v. Heller, the case in which a Federal court tossed out the District's gun ban on 2nd Amendment grounds. If it accepts the case, and a companion one on the same issue, it would be the biggest gun rights decision ever. Scotusblog has background and analysis of the issue here.
Closer to home, the Robed Ones in Columbus didn't come up with anything breathtaking either, other than a reversal of a dismissal of an appeal of a dismissal of an indictment, which I'll talk about later this week. Although you may want to check out this decision, which goes into some detail on the residency requirements for personal jurisdiction; it involves a defendant who fled to Canada to avoid, among other things, paying his attorneys. On to the courts of appeals...
Nice heading, huh? Every now and then, I get lazy and come up with a post just by surfing the 'net and finding stuff that might be relevant or interesting to my legions of faithful readers. Yeah, yeah, I know, you'd rather have pictures of nekkid women. Maybe next week.
That there has been a steady erosion of Fourth Amendment rights over the past thirty-some years long ago ceased being disputable. So it's good to see a court step in and attempt to staunch the bleeding, as the 2nd District did last week in State v. Peterson.
The facts of the case were simple. They involved the use of a new police weapon in the war against drugs, the "knock and advise": as the officer explained to the trial court,