December 2009 Archives
Holiday schedule. This is my last post for the year; I'll be back on January 4 with a rundown of all the major developments in the law over the next two weeks. Which is to say, none. The French shut down the country in August so that everybody can go on vacation; we do pretty much the same during the holidays. I'll find something to write about when I come back, I'm sure. In the meantime, I've put out my annual memo to the staff and co-workers here reiterating my policy about not accepting gifts from them worth more than $50. They assure me they'll have no problems whatsoever in complying with that.
Something to think about during the holiday games. Law and football intertwine over at the Volokh Conspiracy, which cites an article arguing that instant replay should be modeled after the appellate law concept of de novo review. As football fans know, the present standard for overturning the referee's decision is "conclusive" or "indisputable" evidence, which the author argues is analogous to the "abuse of discretion" standard of review. Abuse of discretion is appropriate where the issue is management of the trial, or where the trial judge is in better possession of the facts; in instant replay, though, because of multiple camera views and slo-mo, the reviewer is arguably in a better position to make a determination than the referee was. I'd probably feel better about the argument if abuse of discretion was limited to the situations described in the article. I've found it to be primarily a handy rubric by which appellate courts can shuffle errors under the rug when they want to uphold a particular result.
Random observations on race and crime. Got the police report on a drug case I just got assigned to, where my client and his confederate were picked up after a drug buy. The latter had a .38, leading to firearm specifications for the both of them, although my client insisted to the police "I didn't know the white boy had a gun." Like that matters. In my experience, "blame it on the white guy" has proven to be spectacularly unsuccessful as a criminal defense strategy.
Ice Watch. As I've mentioned before, the Supreme Court's decision early this year in Oregon v. Ice implicitly overruled our supreme court's decision in State v. Foster. The latter had held that Ohio's scheme of imposing consecutive sentences violated Blakely v. Washington because it required judicial factfinding. In Ice, though, the Court examined a statute very similar to Ohio's, and concluded that there was no constitutional bar on a legislature's requiring judges to find facts before imposing consecutive sentences.
This issue has been raised in a number of appellate cases, and the response to date has been that it's up to the Ohio Supreme Court to rectify the problem, if there is one. (Although the Supreme Court has raised the issue a couple of times in oral argument, there is presently no case on its docket squarely presenting the question.) The 5th District's decision last week in State v. Smith puts a new twist on that, though.
Smith was sentenced less than two months after Ice was decided, and claimed that his consecutive sentences were invalid, because the trial court did not engage in the fact-finding that was required by RC 2929.14(E)(4). As I've mentioned before, 2929.14 has been amended 11 times since Foster, and the legislature has never changed the provisions regarding consecutive sentencing. But one of those amendments, the Smith court noted, was on April 7, 2009, after Smith was sentenced:
Because Appellant was sentenced prior to the effective date of amended R.C. 2929.14,albeit after Ice, we find Appellant cannot benefit from the amendment, and Foster controls.
Of course, this makes no sense; the statute as it pertained to Smith's argument was no different before the amendment than after it. But think about this for a minute. Does this mean that the statutory amendment after Ice effectively overrules Foster? The clear holding of Smith is that if you were sentenced before the statute was amended after Ice, then Foster still controls; the flip side of that is that if you were sentenced after the amendment, then Foster doesn't. It's certainly an argument worth considering.
One important note: the Smith court found "persuasive" the State's argument that Smith waived the issue by not specifically objecting to the trial court's failure to make findings before imposing consecutive sentences, but decided to address the merits of Smith's argument anyway. Defense attorneys need to raise the Ice issue at sentencing, or else risk having an appeals court decide that it was waived.
New ideas for fighting the drug war.
Have a good holiday. See you in a couple of weeks.
Interesting week for Blackberry users. On Monday the US Supreme Court granted cert in a case on the question of whether a police department violated an employee's constitutional rights by inspecting personal text messages he sent on a government pager. On Tuesday, the Ohio Supreme Court rendered a 4th Amendment decision so defense-friendly it has me looking for other signs of the Apocalypse.
About the only thing more dangerous in criminal law than an imaginative prosecutor is a lazy Congress.
Although there are only a handful of cases dismissed each year for speedy trial violations, few things so occupy the minds of judges as the possibility of such an event befalling them. The suggestion that all publicity is good publicity is of little comfort to the judge who goes out to fetch his morning paper and finds his name prominently mentioned in the story above the fold about how Slasher McGee is now a free man, his 43 rape charges dismissed because said judge didn't see to it that McGee was brought to trial within the specified time.
Eric and Kathleen get a divorce on June 19, 2007. There's a pension which has to be divided, and so the court decree orders Kathleen to submit a Qualified Domestic Relations Order doing that. Eric wants to appeal, but up to that time most people thought the law was that you couldn't appeal until the QDRO was journalized. Two days after it is -- five months after the journal entry of divorce -- Eric appeals. The very next day, the Supreme Court, in Wilson v. Wilson, says that the journal entry of divorce is a final appealable order, even before the QDRO is issued.
You wouldn't think that it would take the Supreme Court to tell the court of appeals that it shouldn't apply Wilson retroactively and toss out Eric's appeal as untimely. But it does. So in Rothman v. Rothman, the court does exactly that, and further instructs the appellate courts to allow any "similarly-situated litigants" -- anyone who's had an appeal dismissed based on retroactive application of Wilson -- to file notices of appeal, so long as they do so before March 31, 2010.
Several months ago, in State v. Cargile (discussed here), the court held that a person who was arrested and did not disclose that he had drugs on him before he was taken to jail could be convicted of illegally transporting narcotics into a detention facility. State v. Cole presents the same issue, with one difference; the appellate court's opinion doesn't indicate whether Cole was warned that thing bringing contraband into the jail could result in additional charges, or whether he denied possessing it, both of which were the case in Cargile. So the court remands it back to the 8th District to consider all that, and to decide whether it would make a difference. After which the Supreme Court, a few years down the road, can answer the same question it could have answered last week.
Last, back in July I discussed the 8th District's decision in State v. Brooks, in which it vacated the defendant's gross sexual imposition convictions, finding that hearsay had been improperly admitted and that, without the hearsay, there wasn't sufficient evidence for conviction. I'd mentioned that this might be a problem because of the Supreme Court's decision last year in State v. Brewer, in which the court held that in determing the sufficiency of the evidence, the appellate court had to consider all the evidence, including that which had been improperly admitted. My opinion that "it may be that Mr. Brooks isn't completely out of the woods just yet" was confirmed last week; the Supreme Court reversed and remanded Brooks for reconsideration in light of Brewer.
Four opinions finally emerge from the Supreme Court in Washington, none of any great interest to me; much more fascinating was the oral argument in two of the "honest services" cases before the Court. Don't know what that means? You can bet that Jimmy Dimora and Frank Russo do, and so will you, if you stop here on Wednesday. For right now, though, we'll head over to the courts of appeals...
Get me to the court on time. Must be something in the water. Last week I regaled you with the story of Shawn, for whom I had worked out a fairly sweet deal, only to have him be a no-show on the day of trial. Two days later the bailiff called and told me he was in custody, and today we had a pretrial. The reason for his absence, he explained to me, was that he was in the workhouse on a misdemeanor case. Of course, the day before he went into the workhouse, I spent an hour traipsing around the crime scene with him. And I reminded him of the trial we had in a week. You'd think he might have mentioned, "Oh, by the way, I'm going into the workhouse for a week tomorrow.'" I guess his impending incarceration escaped him.
The topper is I had a trial scheduled for Wednesday in another case, but it got kicked because the prosecutor was in an aggravated murder trial. So two hours after I get back to the office, I get a call from my client, apologizing because he'd overslept and just woken up. I told him the case had been continued, and he assured me he was going to run right out to Sears and get an alarm clock. Probably do him in good stead if he ever gets a job.
The march of technology. A couple of years ago, I caught a video of a man being tasered to death in an airport by Canadian police. You can watch it here; it's not for the faint of heart. It wasn't an isolated incident. Six months ago Moberly, Mo. shelled out $2.4 million in a settlement where a mother had watched her son tasered to death by police after a drunk driving arrest, and in March Bay City, Mich. police tasered a 15-year-0ld boy, even after he was allegedly handcuffed, resulting in his death. In fact, one web site which tracks such incidents claims there have been 50 taser-related deaths just this year.
There's certainly room for debate about the legitimate use of tasers, but it's equally clear that applying 50,000 volts to a human being is something that should be done with some measure of discretion. A lot of police departments don't seem to have gotten the memo, though. A 14-year-old New Mexico girl required surgery to remove a taser dart from her head, after having been shot by the police chief after he interceded in an argument between her and her mother. Just last week Denver police tasered a 10-year-old, and police in Ozark, Ark. used a taser on a 10-year-old girl who was pitching a fit and refusing to take a bath.
A goal for aspiring lawyers. I'm often annoyed when a court of appeals rejects an argument by saying it has "no merit." None? It may not be a winning argument -- well, obviously, it wasn't -- but that doesn't mean it was completely devoid of any legitimacy.
Then again, I'll take "no merit" over Iowa District Court Judge William Pattinson's rejection of a motion for change of venue on the grounds that it "is so incredibly asinine, ill-conceived, unfounded and personally and professionally insulting that it is unworthy of any discussion or consideration."
Things you might want to know. So I'm sitting in my office yesterday when I get a call from my buddy Tom, one of the top criminal lawyers in town. He was in the middle of an aggravated murder trial, and everybody, himself included, had just learned that his investigator had taped the witness' interviews without the witnesses knowing about it, and he was catching hell from the judge and the prosecutors, first, because of the surreptitious recording, and secondly because it hadn't been handed over in discovery; the judge and prosecutors were claiming the tapes were tangible evidence under CrimR 16(C)(1), and had to be disclosed.
The first part wasn't a problem; neither Federal nor Ohio law prohibits recording conversations as long as one of the parties to it consents. The rest wasn't, either. If you look at 16(C)(2), it specifically exempts from disclosure "statements made by witnesses or prospective witnesses to the defense attorney or his agents" (as well as "reports, memoranda, or other internal documents made by the defense attorney or his agents in connection with the investigation or defense of the case"). And if there's any lingering doubts, tell everyone to look up State v. Lockett, a 1976 Supreme Court decision in which the court reversed a conviction and death sentence because -- wait for it -- the trial court had refused to allow a witness to be impeached with taped statement to a defense investigator because the defense hadn't turned it over in discovery. That's "on all fours," as we say in the law biz.
Of course, the reason I was able to rattle all this off was because I happened to be working on an appeal that involves that very issue. But I didn't tell Tom that. He thinks I'm a smart guy, and I wasn't about to shatter his illusions, especially so close to Christmas. Might cause him to take a second look at this whole Santa thing, too.
In June of 2002, Kerry Perez tried to rob a drive-through liquor store in Dayton. (Is it just me, or did you do a double-take at the term "drive-through liquor store"? But I digress...) Things didn't go well; the owner put up a fight, resulting in a gun battle in which Perez's accomplice was the only casualty. A year later, Perez decided to take down the Do Drop Inn, a bar in Springfield, and the results weren't as fortunate: Perez killed one of the customers, Ronald Johnson.
Perez apparently spent the next few days telling his family and anyone else who would listen about how he'd killed a man, so it came as little surprise to anyone save him when he was arrested and charged with aggravated murder in the latter shooting.
But that's not all Perez had done.
You'd think that 43 years after Miranda was handed down, we'd have a very clear idea of what exactly it required police officers to advise a defendant before questioning. After reading Monday's oral argument in the Supreme Court on Florida v. Powell, maybe not.
As you might have guessed, I read a lot of cases for this blog. Reading cases is just like any other skill: the more you use it, the better you get at it. One of the things I've learned is to skim the opinion for the assignments of error. If they're manifest weight and insufficiency arguments, well, that's a case that's usually not getting read, primarily because (a) they're so fact-specific that there's no legal principles which are discernible, and (b) they're almost invariably losers.
Sometimes, I get the feeling that appellate courts treat them the same way. Lucky for Franco Stephens that the 8th District didn't share that feeling.
Still no decisions from the Supremes in DC, although that's supposed to change shortly: they've promised to have some on Monday, and, if it's anything I find interesting, I'll have something on it here later this week.
Rich oxen getting gored. Sentencing Law & Policy points us to a recent NY Times article, which begins:
In the next several months, the Supreme Court will decide at least a half-dozen cases about the rights of people accused of crimes involving drugs, sex and corruption. Civil liberties groups and associations of defense lawyers have lined up on the side of the accused.
But so have conservative, libertarian and business groups. Their briefs and public statements are signs of an emerging consensus on the right that the criminal justice system is an aspect of big government that must be contained.
That the federalization of criminal law has gotten out of hand is not news to most of us in the criminal bar; I did a post on it back in January, mentioning a recent Cleveland case where a defendant was federally prosecuted under the Hobbs Act for stealing $538 from a Little Caesar's pizza. The post led with the 4th Circuit's decision in US v. Comstock, which struck down a new statute empowering the Attorney General to certify that a prisoner was "sexually dangerous" and prevent his release; the 4th held that such "civil commitments" intruded upon an area traditionally reserved to the states. The Supremes granted cert in Comstock, and the case will be argued in early January.
I'm certainly glad to see conservatives rushing to join forces with us, but I can't help but wonder if some of this is due to the focus being brought to bear on the criminality in executive office suites leading up to the economic debacle we're still going through. The whole thing largely confirms the observation that if a conservative is a liberal who's been mugged, a liberal is a conservative who's been arrested.
Maricopa County update. A fewweeks ago, I mentioned the firestorm that had engulfed the legal blogosphere after a video of a court hearing in Maricopa County, Arizona, surfaced, showing a sheriff's deputy rifling through a defense attorney's file while she was at the podium addressing the judge. (Video here.) The latest news is that the deputy was found in contempt of court and ordered to publicly apologize to the lawyer, or go to jail.
This was too much for County Sheriff Joe Arpaio, who bills himself as "America's Toughest Sheriff": insisting that his deputy was "just doing his job," Arpaio swore he wasn't going to "allow him to be thrown to the wolves by the courts because they feel pressure from the media in this situation."
Arpaio, the kind of guy who gives fascism a bad name, is already being investigated by the Justice Department for numerous civil rights violations, and is accused of using his powers to go after political enemies. The scary thing is he's probably right: in Maricopa County, it may well be that one of a deputy's duties is trashing the principles of right to counsel and attorney-client confidentiality.
But Arpaio turned out true to his word: the deputy refused to apologize, and on Tuesday began serving his jail sentence. So is the deputy doing his time in Tent City, pictured at right, the annex to the county jail that Arpaio set up to house the common riffraff? Not likely. As indicated in this article, Arpaio keeps a "celebrity wing" at the regular jail. As the article notes, one Phoenix businessman got to serve his time on a DUI charge in the "Mesa Hilton" after his father donated $10,000 to Arpaio's re-election campaign. I doubt if the deputy will manage that, but he doesn't have to.
The march of technology. As all lawyers know, the Ohio Supreme Court mandates that we receive 2½ hours of continuing legal education on ethics, professionalism, and substance abuse every two years. The Cuyahoga County Defense Lawyers Assocation gave its annual seminar on the subject a few weeks ago, and there was no end to the things I learned. Among them: should my office-mates decide to stage an intervention with me, with the help of a counselor from the Ohio Lawyers Assistance Program, there is a 95% chance that I will leave with the counselor and go directly into treatment. This sounded a bit high to me, and I'm thinking of developing a substance abuse problem just to test it out.
The speaker on professionalism was Judge Colleen O'Toole of the 11th District Court of Appeals, and she devoted most of her presentation to the increasing role that technology plays in legal matters. Not the technology that most of us think of, like Lexis and computerized dockets, but the technology of "the masses": Facebook, Twitter, and so on. The effect of those on jury trials is becoming notorious, as this article demonstrates:
The first mistrial Cuyahoga County Common Pleas Judge John Russo declared in his courtroom wasn't because of a hung jury, improperly admitted evidence or a procedural error. It happened, in large part, because of a text message. An attorney in another Ohio jurisdiction called Cuyahoga County Prosecutor Bill Mason's office reporting that her sister, who was serving jury duty on the felonious assault case in Russo's courtroom, had texted her with a legal question -- a direct violation of the judge's orders to abstain from doing outside research on the case.
Mea culpa on this; I've often found it more than a little embarassing that I've been doing a legal blog for almost four years now, and I still have difficulty figuring out how to open a text message, let alone send one. So I decided to get with it, and start up my own Facebook page. (You can find it online should you choose to do so, but be forewarned: it includes a picture, which goes a long way toward explaining why this blog does not.) So far, I'm not impressed; the operative word here seems to be "self-indulgent."
I might even rethink the whole thing after reading this story:
A Canadian woman on leave from her job at IBM says she lost her benefits after her insurance agent spotted her in Facebook photos having fun.
The woman, Nathalie Blanchard, says her insurer, Manulife, told her the photos are evidence she is no longer depressed, according to the Associated Press and CBC News. The photos showed Blanchard at a Chippendales show and on vacation.
Well, I guess I just won't post any pictures of me having fun. Shouldn't be much of a problem...
Robert van Hook and George Porter committed the same crime, aggravated murder, albeit under substantially different circumstances: van Hook went to a gay bar to rob a homosexual, went home with one, and killed him, while Porter killed his ex-girlfriend and her boyfriend. Both were given the same penalty, death. Both argued that the sentence should be overturned on the same grounds, that their lawyers had been ineffective in failing to present mitigating evidence. Both then went the route of federal habeas corpus, and that's where their paths diverged: van Hook was granted relief by the 6th Circuit, while Porter was denied relief by the 11th.
Their paths diverged once more: last month, the Supreme Court reversed the 6th Circuit's decision in a unanimous, unsigned per curiam opinion, and on Monday, the same result befell the 11th Circuit's decision in Porter's case.
Mark looked up from the folder of the case that he was set to try against me that morning. "New look?" he asked as I sat down at the table. I hadn't shaved since I came back from Vegas five weeks ago, although I got a nice little trimmer (with seven attachments, $19.99 at Target for those needing some last-minute gift tips) to keep it neat. "Yeah," I said, "I figured I'd try for the manly look."
Mark mulled that over. "Think that ship already sailed, don't you?" I nodded. He had a point. "So, you got good news for me?" I asked. His turn to nod. "Yeah, I think so...
There are competing theories among appellate lawyers, with one group arguing that you should assign every possible error, and the other that you should only argue those that you have a reasonable chance of winning. There are pros and cons of each approach, and, as usual, the best answer is probably somewhere in the middle. But Option A gets a real workout inthe 8th's decision last week in State v. Bruce, with decidedly negative results.