That would ordinarily be good news for Christopher Thomas -- the judge had miscalculated the sentence she'd imposed upon him by a whopping 60 years. The good news was muted, however, by the fact that this still left him 93 years to serve. Not for now, though, and if one judge on the panel in State v. Thomas had his way, not ever. And that judge also has some interesting things to say about the state of allied offense law since State v. Johnson came down a year ago.
November 2011 Archives
It's well known that the population of Cuyahoga County has been declining since the 1950's; indeed, while Ohio's population increased by 1.6% in the last decade, the County's fell by 8.2%. In fact, things have gotten so bad that apparently we can't find jurors: of the seven criminal cases reported by the 8th District last week, three involved trials, and every one of the three was a bench trial.
No new decisions from DC. There's one criminal case on the docket for oral argument this week, Setzer v. US, which presents the question of whether a Federal judge can order a sentence to be served consecutively to a state sentence that hasn't yet been imposed. The Court concludes its oral argument for the year the following week, but it's going out with a bang: one of the cases, Williams v. Illinois, provides another Crawford question, this time whether an expert witness can testify about the results of a DNA report performed by a non-testifying analyst. I'll do a preview of the oral argument on that one later this week.
Down in Columbus, a multitude of significant decisions from the Ohio Supreme Court. Oops, hold it, that was in a parallel universe. In this one, other than a solitary disciplinary ruling chastising an attorney for having a sexual relationship with a client, there was nothing. As regular readers know, I do this Case Update every Monday. I'm thinking of renaming it, "All Quiet on the Scioto Waterfront." If you don't know what that means, look up "Scioto River." That's what God created Google for.
There were some oral arguments in the past few weeks, and so it's certainly possible that the court will eventually issue decisions resolving those cases, and I'll get to write about it. A couple weeks ago, for example, it heard one on whether the failure of a judge to impose a mandatory driver's suspension on a drug offender renders the sentence void, and requires a de novo resentencing, or whether he's only entitled to a sentencing hearing limited to the suspension issue. Frankly, I don't think I will be writing about that one, because it's stupid. The answer is, "What's behind Door B." Let's move on. Equally stupid was another case presenting the issue of whether the crime of discharging a firearm from a motor vehicle was committed when the defendant fired the gun while standing on the ground immediately outside the car, from behind an open door. I did watch some of the oral argument in that case -- there's twenty minutes of my life I'll never got back -- which was more than sufficient to allow me to write the opinion in that one, too: "Defendant loses."
My spleen suitably vented, let's see what happened the appellate court judges managed to get done before going off to increase their cholesterol levels...
Harry Blackmun had his epiphany back in 1994, in Callins v. Collins, a death penalty case from the capital of death penalty cases, Texas. The facts of Callins' case are unimportant now, and few would remember his execution, which occurred the day after Blackmun wrote his dissenting opinion in his case. What is memorable is Blackmun's agonizing over "the unenviable task of determining whether some human being is to live or die," and his conclusion:
From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored--indeed, I have struggled--along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question--does the system accurately and consistently determine which defendants "deserve" to die?--cannot be answered in the affirmative.
Oregon Gov. John Kitzhaber reached his epiphany yesterday. Oregon has executed two people since the death penalty was reinstated in 1976 -- anymore, that's a slow month in Ohio -- and Kitzhaber was the governor both times, in 1996 and 1997. (After serving two terms in the 1990's, he went back to his medical practice, but then ran again and was elected in 2010.) The third time was the charm, as they say: with the execution of Gary Haugen looming, Kitzhaber issued a reprieve and announced a moratorium on capital punishment. His announcement echoed the same problems that Blackmun had found:
The death penalty as practiced in Oregon is neither fair nor just; and it is not swift or certain. It is not applied equally to all. It is a perversion of justice that the single best indicator of who will and will not be executed has nothing to do with the circumstances of a crime or the findings of a jury.
Kitzhaber noted that the two inmates put to death in 1996 and 1997 were "volunteers"; they'd dropped their appeals. So was Haugen. While the district attorney and the victim's families criticized Kitzhaber, so did the intended beneficiary of his decision; as this article notes, according to Haugen's lawyer, the likelihood is that "the decision will greatly disappoint Haugen, who chose execution as a political protest and a path to freedom from the confines of death row."
Kitzhaber, a phsyician, was morally opposed to the death penalty, but his explanation, and Blackmun's, point out that there are two aspects of the morality of capital punishment. The first, of course, is whether the state has the right to kill. Everybody knows the arguments on that, and frankly, I think there's a legitimate argument on both sides. Blackmun began his opinion in Callins by describing in some detail the mechanism by which Callins would be killed, offering the opportunity for a perfect rejoinder by Scalia, which he took to the fullest:
Justice Blackmun begins his statement by describing with poignancy the death of a convicted murderer by lethal injection. He chooses, as the case in which to make that statement, one of the less brutal of the murders that regularly come before us -- the murder of a man ripped by a bullet suddenly and unexpectedly, with no opportunity to prepare himself and his affairs, and left to bleed to death on the floor of a tavern. The death-by-injection which Justice Blackmun describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us which Justice Blackmun did not select as the vehicle for his announcement that the death penalty is always unconstitutional -- for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. How enviable a quiet death by lethal injection compared with that!
Point to Scalia. But there's another aspect to the morality of capital punishment that Scalia ignores, and it's actually the aspect that Blackmun -- and Kitzhaber -- found more troublesome: the sheer arbitrariness of the penalty. As some have observed, the death penalty is not reserved, as it should be, for the worst of the worst, it is imposed on the unluckiest of the unlucky: those who have committed their crime in a county which has the resources to pursue the tremendous costs of a death penalty case, those with bad lawyers, those with jurors hardened enough to impose the maximum penalty, as so few jurors are willing to do any more.
Actually, as Blackmun pointed out in his dissent, the second Justice Harlan put his finger on the problem in 1971:
Those who have come to grips with the hard task of actually attempting to draft means of channeling capital sentencing discretion have confirmed the lesson taught by the history recounted above. To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.
Kitzhaber's decision is the latest to agree with Harlan that creating a rational, workable, and non-arbitrary system of capital punishment is simply impossible. Oregon has declared a moratorium on capital punishment, and Illinois, New Jersey, New York, and New Mexico have abolished it outright in the past four years. But that's not where the real trend is. In 1996, 315 people were sentenced to die; last year, only 114 were. Troy Davis was executed two months ago despite recantations by seven of the nine witnesses against him, and several jurors who'd sat on his trial expressed the view that they would have decided the case differently -- certainly the penalty -- had they known of that. In the face of evidence of the fallibility of capital punishment -- the count of people sentenced to death who were subsequently exonerated is up to 138 -- a person sitting on a death penalty jury has to have in the back of his mind, what if I vote to kill this guy and ten years later it comes out that he didn't do it? Especially if he's executed before that comes out?
What will eventually end the death penalty is when jurors decide that they will no longer tinker with the machinery of death. And that day is approaching.
Enjoy the holiday, and I'll see you on Monday.
A light week from the court, in apparent anticipation of the upcoming holiday. Only six criminal decisions, but there's not a turkey in the bunch.
All together now: "No new cases from the Ohio Supreme Court." Well, not exactly. It did instruct the counsel for respondent to redact personal identifiers contained in a motion for reconsideration. The attorney in another case had filed a 19-page memorandum in support of jurisdiction, and the rules limit those to 15 pages, so the last four are stricken.
In more meaningful matters, the court did have a big day on November 14, ordering the State to file a response to Reginald Brooks' memorandum in support of jurisdiction by 5:15 P.M.; the State apparently complied, and a short while later that evening the court denied the appeal. It sent a copy of the notice of that to the court of appeals, but by the time they got it, Brooks was dead, executed at noon on the 15th for killing his three sleeping sons back in 1982 as revenge for his wife's filing for divorce. His 29 years on death row -- at 66, he was the oldest inmate ever to be executed in Ohio -- did little to rehabilitate him: he went to his maker giving the finger, with both hands, to the witnesses of his demise.
Down in D.C., two cases make their way to the Supreme Court. The Court has already accepted the case on the Affordable Health Care Act, and has now scheduled 5½ hours of oral argument, broken down into various sessions over several days. One session will review the question of the constitutionality of the act's sore point, the portion mandating that all individuals purchase health insurance. Another will debate whether the invalidity of the mandate renders the entire bill unconstitutional. The last will concern the Anti-Injunction Act, which prevents a taxpayer suit unless the taxpayer has actually had to pay the tax; since the tax doesn't take effect until 2014, some argue that the courts can't even take up the issue of the constitutionality of the law until then.
Out in California, the California Supreme Court held that backers of Proposition 8, which outlawed gay marriage in California, had standing to defend the Act; the case now goes back to the 9th Circuit. If the Circuit nullifies the law, the conventional wisdom is that the Supreme Court will have to take on the case.
It's interesting that two of the most controversial political and social issues of our time could be determined by the least democratic branch of government.
In Ohio, appellate court judges, just like all the others, are elected, although they seem to have cut back their activity in anticipation of that most democratic of holidays, Thanksgiving...
Here's an old joke popular among criminal defense lawyers. What do you say to a lawyer who's been fired from an assigned case?
You've seen defendants with records like Henry's. A couple of juvy thefts, then a shoplifting and a felony theft as an adult. Then a couple more thefts, sprinkled with some drug possessions, and some B&E's. Several short stints in the joint, and then he broke into someone's home while they were there, and the judge dropped the hammer: five years in prison. After that, Henry was good. It was another three years before he did a smash and grab at a gas station after hours, coming away with a dozen cartons of cigarettes, a seemingly small bounty for looking at another year in prison for breaking and entering.
So it doesn't surprise you a whole lot when you can just about see the steam coming out of the judge's ears when you tell her that, under HB 86, the new sentencing law, she has no choice but to give Henry community control sanctions.
A lot of judges don't think that's right, or smart. Judge Frederick Pepple of the Auglaize County Common Pleas Court goes a bit farther: in an opinion he authored last month, he found that it's unconstitutional.
There are a lot of rules and statutes that are impenetrably complex, or fraught with ambiguity. CrimR 32(A)(1), which governs the procedure for a court to use in imposing a sentence in a criminal case, isn't one of them. It's quite specific:
At the time of imposing sentence, the court shall. . . address the defendant personally and ask if he or she wishes to make a statement in his or her own behalf or present any information in mitigation of punishment
Last week, the 8th and 12th Districts took a look at the rule, with widely differing results.
There's a common perception that fingerprint evidence is infallible. Brandon Mayfield would beg to disagree. After the Madrid subway bombings in Spain in 2004, police found a fingerprint on a bag of detonators near one of the sites. Three separate FBI fingerprint examiners matched them with fingerpints belonging to Mayfield, a lawyer in Portland, Oregon, and a court-appointed expert agreed. The FBI arrested him and held him as a material witness for two weeks. At that point, everybody realized he was the wrong guy. He was released and the FBI apologized for the error, and, while not explaining exactly how the error was made, promised to review its practices on fingerprint analyses.
The story of Anthony Martemus doesn't have that good an ending.
Down in DC, the Supreme Court accepted cert in a followup to its decision last year in Graham v. Florida (discussed here) prohibiting the imposition of life without parole on a juvenile in a non-homicide case. The two new cases are Miller v. Alabama and Jackson v. Arkansas. Miller got LWOP when he was fourteen, after beating his neighbor, then setting the neighbor's trailer on fire, leaving him to die of smoke inhalation. Jackson was also fourteen when he served as the lookout in a video store robbery in which the store clerk was killed. The Court's 8th Amendment decisions over the past decade have invariably been 5-4, and expect more; as one wag put it, the Court's jurisprudence in this area could be described as depending upon "the evolving standards of Kennedy." The other news of petitions to come arose from the DC Circuit's decision upholding the Affordable Care Act by a 2-1 vote. The majority opinion was written by Judge Laurence Silberman, generally regarded as an intellectual heavyweight in conservative circles (he wrote the circuit's opinion in Heller v. District of Columbia striking down the district's gun laws, which was subsequently affirmed by the Supreme Court), so there's an indication that a decision by the Supremes, now virtually assured by next June, just as the presidential campaign gets underway, may not fall along strict liberal/conservative lines.
The Court issued its first decision in an argued case, throwing more cold water on habeas actions in Greene v. Fisher. Rory Little over at SCOTUSblog gives an excellent summary of the decision, which would mostly be of interest to those plucky few lawyers who persist in pursuing habeas cases in the face of odds that make the Cleveland Browns sure-fire Super Bowl contenders by comparison. The short version is that the purpose of habeas is to "guard against extreme malfunctions in the state criminal justice systems," rather than "as a means of error correction." The Court followed that up by reversing the 6th Circuit's grant of habeas in another case, affirming in Bobby v. Dixon that a habeas petitioner "must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." It should be noted that both decisions were unanimous.
I'm going to be giving a seminar in December on updates in Ohio criminal law (and another on the same subject in January for the Cuyahoga County criminal bar assocation), and one of the ways I prepare for that is by going over the Case Updates I've done for the past year. I had the feeling that this hasn't been a big year for Ohio Supreme Court decisions on criminal matters, but I was still surprised to see how many updates included the phrase, "nothing new from Columbus." Well, add another to that list. My interest was briefly piqued by the the arrival in my email box of the Supreme Court's announcement on November 9 that it had issued "five merit decisions with opinions." The email comes with a link to the actual text of the announcement; for whatever reason, my email client warns me not to open the link because it thinks the message might be a scam. In this case it was right: the "five merit decisions with opinions" consisted of five cases in which the court, in a single sentence, vacated an appellate decision and remanded the case for consideration in light of its decision the week before in State v. Lester (discussed here).
On to the courts of appeals, where there is something new, something old, something blue, whatever...
There comes a point in every lawyer's career where he realizes that what he's saying is bullshit. Actually, that point comes about twice a week. The bigger problem is where he realizes that everybody else knows it's bullshit, too. Like when a trial lawyer's giving a closing argument, and the jurors are sitting there frowning with their arms folded, frank expressions of disbelief on their faces. The nice thing about that is that at least the jurors can't say anything; if you're doing an oral argument, the judges have plenty of opportunity to, shall we say, point out the deficiencies in your reasoning.
Donna Andrieu can tell you all about that.
Sudhina Johnson didn't get very far with his argument that the placement of a GPS device on his car, and the evidence obtained by using it to track his vehicle, was a 4th Amendment violation. Last year, in State v. Johnson, the 12th District easily shot down that argument. The 4th Amendment is all about privacy, the court said, and here there was no indication that Johnson had "intended to preserve the undercarriage of his van [where the device was planted] as private," and one does not have a reasonable expectation of privacy in his travels on public roads.
Three weeks ago, the Ohio Supreme Court had oral argument in Johnson's case; on Tuesday, the US Supreme Court heard the arguments in Jones. In Columbus (actually, the argument was held in the Highland County court in Hillsoro), it appeared that a majority of the justices bought into the "no privacy interest" reasoning. Down in D.C., though, not so much...
If you're defending a client charged with 61 counts of rape, kidnapping, and gross sexual imposition of a 14-year-old boy, you've got a tough case on your hands. It gets immeasurably tougher if the State is allowed to introduce evidence that your client had a consensual sexual relationship with a 16-year-old boy some twelve years earlier.
Van Williams' lawyer realized this, and fought tooth and nail to keep the evidence out. When the State filed its motion seeking to admit the evidence under EvidR 404(B), he filed a motion to exclude it, and asked for an evidentiary hearing. He renewed that request on the day of trial, arguing that he needed to know whether the evidence was going to come in before the trial started. The judge denied it and began voir dire. The lawyer again renewed the motion the next day, asking the court to rule on it before opening statements. The judge denied that, too. An evidentiary hearing was conducted at certain points during the trial, just prior to the testimony of the pertinent witnesses, and the judge eventually allowed all the evidence in. Unsurprisingly, Williams' was convicted, and sentenced to 20 years in prison.
The surprise came in the 8th District. Two of them, actually: first, the court sua sponte decided to consider the case en banc, and secondly, in State v. Williams, the court reversed.
In the spirit of the holidays, the judges gather together, hold hands, sing "Kumbaya," and render a superb en banc decision on 404(B) evidence. We'll talk about that tomorrow. Some of its other work is, shall we say, less than superb, so let's get that out of the way.
All eyes -- well, mine, anyway -- are focused on SCOTUS this week, not in anticipation of any decisions, but for the oral argument in the GPS case. As I've mentioned, while the case originally offered the question of whether use of the device to monitor the defendant's movements violated his 4th Amendment rights, the Court ordered briefing on an additional issue: whether placement of the device in the first instance constituted a search or seizure.
There was another big case argued last week in DC, Perry v. New Hampshire, which I previewed here. Perry's claim was that unreliable identification testimimony is a due process violation, even in the absence of any police conduct contributing to a suggestive pretrial identification. That's a tough argument. Most of the effort of the American justice system is concentrated in ensuring that the procedure is fair, not that the outcome is correct. For example, a defendant is guaranteed the right to confrontation to determine the reliability of evidence; he is not guaranteed that the evidence will in fact be reliable. If a defendant has a due process right to the exclusion of unreliable identification testimony, how do we go about determining whether it is in fact unreliable? And shouldn't that be extended to prohibit other types of evidence which might be deemed unreliable? Perry's argument found no notable takers on the Court, and more than enough critics to safely predict it rejection.
Down in Columbus, no decisions either. There were several oral arguments, including State v. Morris, which I discussed last week, and State v. Hood. The latter involves the question of whether the defendant's right to confrontation was violated by the police officer's testimony about cell phone records, in the absence of anyone from the cell phone company coming in and authenticating the records. The most unusual aspect of the case is that the court took the case at all; the 8th Amendment affirmed Hood's conviction without addressing the issue, holding that even if it did violate his 6th Amendment right, it was harmless beyond a reasonable doubt. To provide any relief to Hood, the Supreme Court would both have to rule in his favor and conclude that the appellate court was wrong in its application of the harmless error standard. To be sure, the dissenting opinion in the 8th District's decision raised substantial question as to whether the majority was correct in determining whether the error was harmless, but the Supreme Court almost never reviews those determinations.
On to the courts of appeals...
As my countless legions of faithful readers know, I do a roundup of 8th District decisions every Tuesday, where I do an analysis of about four to six decisions from that court. I do a Case Update on Monday, where I have brief summaries of the decisions from the other districts. Every now and then, when I do the Case Update, I run into one that deserves a little more discussion than I can give it there. This week, I ran into two, and oddly enough, they're both from the 5th District, one on the new criminal discovery rules and one on a search. So let's take a look.
If you do appeals work on a consistent basis, here's a phrase you've seen hundreds of times: "We review a trial court's decision to admit evidence for abuse of discretion."
Why? In a lot of situations, it makes sense. A trial judge is going to have a much better "feel" for how the trial's going than a court of appeals will reading the transcript six months later, so it's logical that the court would defer to the judge's determinations on things like whether the evidence is relevant, or whether it should be excluded because it's cumulative or because its probative value is outweighed by its prejudicial effect. The judge also has the superior opportunity to make credibility determinations, so when those determinations are required for deciding whether, say, handwriting or a voice recording has been authenticated, an appeals court should defer on that as well.
But what about whether a statement was an excited utterance, or testimonial under Crawford, or was admissible to show motive or intent under 404(B)? Those are really determinations of law, not fact or procedure, and it isn't at all clear how the trial judge would be in any better position to make that determination than the appellate court.
And what do we mean by "abuse of discretion" anyway? There are loads of opinions which talk about it being "more than an error of law." Does that really mean that a judge has the "discretion" to admit hearsay, even if it doesn't fall within one of the exceptions?
Those were some of the questions raised by State v. Morris, but judging by the oral argument on the case yesterday in the Ohio Supreme Court, what the answers are going to be -- or even whether there are going to be any answers -- is up in the air.
The first sentence of Criminal Rule 32(C) seems pretty simple: "A judgment of conviction shall set forth the plea, the verdict, or findings, upon which each conviction is based, and the sentence." The problem started a few years back, when the 9th District began reading it hypertechnically: if the journal entry didn't indicate how the defendant had initially pled at his arraignment, it was defective, and the appeal was dismissed for lack of a final order. This didn't really make any sense -- if the entry reflected that the defendant subsequently pled guilty or was convicted after a trial, what did it matter how he'd pled at the arraignment? -- and the Supreme Court cleaned that up in State v. Baker. Sort of; while the court did say it wasn't necessary to indicate what the defendant's initial plea was, it did state that the manner of conviction, that is, whether it resulted from a guilty plea, a finding by of guilt by the court after a no contest plea, or a verdict of a jury or the court after trial, had to be included.
That's the horse Steven Lester wanted to ride in his bid to get a new appeal. He'd been convicted in 2006, and had lost his appeal, but the case got remanded for correction of post-release controls. The new journal entry contained the PRC provision, but, like the previous entry, it indicated only that he had been convicted of the various crimes without specifying how that conviction came about. Lester appealed, claiming not only that the journal entry was defective, but that it entitled him to a brand spanking new appeal, complete with issues that hadn't been raised or had been rejected in his initial appeal. What about res judicata? Doesn't apply, said Lester; an appellate court only has jurisdiction over final appealable orders, the entry in his case wasn't a final order, thus the first appeal was a nullity.
No decisions from the 8th District for the past few weeks, the court apparently deciding that there was no point in rendering any while I was on vacation, since they would be unable to learn what they were doing wrong.
As if! Actually, the court handed down no fewer than 64 decisions in the past three weeks, leaving little time for them to get a bitchin' tan like mine, although Cleveland isn't the most hospital clime for acquiring one in any event. Let's take a look.