This past week I had two individuals stop by the office with the exact same problem. Both had been stopped by police for very minor traffic infractions. Both times the officer asked to search the car and both times consent was given. And both times marijuana was found in the vehicle.
When I asked these people why they had given consent to search, each said the same thing - they thought they had to. They were completely unaware of the fact that they could say no when the police asked to search.
All this begs the question - why aren't the police required to inform them that they have the right to say no? After all, we protect people's Fifth Amendment rights by informing them that they have the right to remain silent. And we protect their Sixth Amendment rights by informing them that they have the right to an attorney (and, if they can't afford one, one will be appointed). Why are Fourth Amendment rights not similarly protected?
In some states, the answer is that they are. I was talking with Ken Sheets about these cases and he says that case law in Ohio is to the effect that, upon conclusion of a traffic stop, the officer must inform the person stopped that "you are free to go. May I search your car?"
Personally, I don't think even that goes quite far enough. How does that insure that the person understands that they can refuse? I think, to be effective, it should be in the form of a warning - "I would like to search your car. You have the right to refuse me permission to search. If you refuse, you are free to go. If you consent, anything I find may be cause for me to arrest you and may be used against you in court."
I am pondering whether to raise this issue in these cases. Both are first offenders who will not likely face jail time if convicted, which makes it a little difficult not to just make a deal and send them on their way.
~Tim
Saturday, January 19, 2008
Tuesday, January 8, 2008
Ineffective Assistance of Counsel
The U.S. Supreme Court issued a decision this week regarding ineffective assistance of counsel. The case is Wright v. Van Patten, No. 07-212.
In this case, counsel for the criminal defendant participated in a plea hearing by telephone and was not physically present in the courtroom. The defendant, in his post-conviction relief petitions, raised the issue of whether the absence of counsel from the courtroom (he participated via telephone), constituted the ineffective assistance of counsel.
The Court sidestepped this issue, however, by holding that habeus relief was not warranted in any event because there was no clear precedent from the Court on the topic, so no violation of the defendant's rights had occurred. The Court expressly reserved the issue of whether participation by telephone might be ineffective. In dicta, the Court said the issue would not be whether counsel who is physically present will perform better than one who attends by phone, but rather whether the lack of attendance prevented the attorney from counseling the accused.
As the courts move more and more toward embracing new technologies these types of issues are going to become increasingly common. My guess is that, in the next few years, we are going to see a few decisions come out of the courts of appeal the the Supreme Court on these issues.
~Tim
In this case, counsel for the criminal defendant participated in a plea hearing by telephone and was not physically present in the courtroom. The defendant, in his post-conviction relief petitions, raised the issue of whether the absence of counsel from the courtroom (he participated via telephone), constituted the ineffective assistance of counsel.
The Court sidestepped this issue, however, by holding that habeus relief was not warranted in any event because there was no clear precedent from the Court on the topic, so no violation of the defendant's rights had occurred. The Court expressly reserved the issue of whether participation by telephone might be ineffective. In dicta, the Court said the issue would not be whether counsel who is physically present will perform better than one who attends by phone, but rather whether the lack of attendance prevented the attorney from counseling the accused.
As the courts move more and more toward embracing new technologies these types of issues are going to become increasingly common. My guess is that, in the next few years, we are going to see a few decisions come out of the courts of appeal the the Supreme Court on these issues.
~Tim
Thursday, December 27, 2007
Ohio Tort Reform Decision
The Ohio Supreme Court today announced its decision in the Arbino case. Readers of this blog will know of my interest in that case, which deals with caps on non-economic and punitive damages in tort cases in Ohio. The court held that the statute was constitutional.
I have not yet analyzed the full opinion, which I plan to do over the weekend, but in reading it today one thing stood out. A majority of the court (five of the seven) appears to hold that the right to a trial by jury is not a fundamental right in Ohio, at least as applied to civil cases.
Huh?
It strikes me as amazing that five judges could sign off on something as outrageous as that. As pointed out in the dissent, the right to a trial by jury is so enshrined in the law that it is actually mentioned in the Declaration of Independence as being one of the reasons why we broke away from England. We couldn't abide by King George's abrogation of the right to trial by jury in some cases. How can that not be a fundamental right?
Since the court held that a fundamental right was not implicated, the statute was analyzed only under rational basis instead of strict scrutiny. The dissent thought it was unconstitutional under either analysis, but the majority says that the statute is rationally related to a legitimate state interest (that interest was stated as being bringing new businesses to Ohio and keeping businesses that are there) and is, therefore, constitutional.
I will undoubtedly post more, together with a link to the decision, after I take the time to digest it further.
~Tim
I have not yet analyzed the full opinion, which I plan to do over the weekend, but in reading it today one thing stood out. A majority of the court (five of the seven) appears to hold that the right to a trial by jury is not a fundamental right in Ohio, at least as applied to civil cases.
Huh?
It strikes me as amazing that five judges could sign off on something as outrageous as that. As pointed out in the dissent, the right to a trial by jury is so enshrined in the law that it is actually mentioned in the Declaration of Independence as being one of the reasons why we broke away from England. We couldn't abide by King George's abrogation of the right to trial by jury in some cases. How can that not be a fundamental right?
Since the court held that a fundamental right was not implicated, the statute was analyzed only under rational basis instead of strict scrutiny. The dissent thought it was unconstitutional under either analysis, but the majority says that the statute is rationally related to a legitimate state interest (that interest was stated as being bringing new businesses to Ohio and keeping businesses that are there) and is, therefore, constitutional.
I will undoubtedly post more, together with a link to the decision, after I take the time to digest it further.
~Tim
Monday, December 10, 2007
Supreme Court Season
The U.S. Supreme Court has begun to announce decisions on cases argued early in this term. I just read an interesting one - Watson v. United States. In Watson, the court held that a person who receives a firearm in trade for drugs has not "used" that firearm in relation to a drug trafficking crime and is not eligible for the mandatory sentence that would entail. What makes this interesting is that the court had already held, in Smith v. United States, 508 U.S. 223, that a person who gives a firearm in trade for drugs has used it in a drug trafficking crime and is eligible for the mandatory sentence.
They reached these opposite conclusions through some very tortured analysis of the English language. It seems that a person who trades the firearm and receives the drugs is using the firearm to get drugs, the same way that other people use money to get groceries. On the other hand, the person who receives the firearm and gives the drugs cannot be said to have used the firearm under any possible normal usage of the word uses.
Does this remind anyone of the whole "it depends on what the meaning of the word is is" debacle?
Personally, I don't think either person should be eligible for the mandatory sentence under the circumstances of a trade. I think the reasonable interpretation of the word uses in these cases should be that the person uses the firearm as a firearm, not as a medium of exchange. It is interesting how far the court will go sometimes to reach a result.
~Tim
They reached these opposite conclusions through some very tortured analysis of the English language. It seems that a person who trades the firearm and receives the drugs is using the firearm to get drugs, the same way that other people use money to get groceries. On the other hand, the person who receives the firearm and gives the drugs cannot be said to have used the firearm under any possible normal usage of the word uses.
Does this remind anyone of the whole "it depends on what the meaning of the word is is" debacle?
Personally, I don't think either person should be eligible for the mandatory sentence under the circumstances of a trade. I think the reasonable interpretation of the word uses in these cases should be that the person uses the firearm as a firearm, not as a medium of exchange. It is interesting how far the court will go sometimes to reach a result.
~Tim
Sunday, November 11, 2007
The Complete Lawyer
Recently, my blog was chosen for inclusion in a blog directory run by The Complete Lawyer. The Complete Lawyer is an online magazine that is provided free of charge to members of many of the state bar associations. It focuses on legal professionalism and quality of life and career issues that face us as attorneys.
If you haven't yet had an opportunity to take a look at The Complete Lawyer, you should. You can access it at http://www.thecompletelawyer.com .
~Tim
If you haven't yet had an opportunity to take a look at The Complete Lawyer, you should. You can access it at http://www.thecompletelawyer.com .
~Tim
Wednesday, November 7, 2007
Social Networking for Lawyers
Hot on the heels of MySpace and Facebook comes a new social networking site exclusively for lawyers. It's called LawLink and you can reach it at http://www.lawlink.com/.
The theory of these sites is simple, you create a page that lists information about you and your practice, then you invite colleagues to join. As people link to your page (and you link to theirs) your network builds. It's a way to communicate, build business, and learn from others.
Built into the system are messages (like e-mail) and forums (like group e-mail systems). This particular site, being new, is still being built so some features are not yet available. Still, it's worth checking out. You can take a look at my page and perhaps send me an invitation to yours to help our networks grow.
~Tim
The theory of these sites is simple, you create a page that lists information about you and your practice, then you invite colleagues to join. As people link to your page (and you link to theirs) your network builds. It's a way to communicate, build business, and learn from others.
Built into the system are messages (like e-mail) and forums (like group e-mail systems). This particular site, being new, is still being built so some features are not yet available. Still, it's worth checking out. You can take a look at my page and perhaps send me an invitation to yours to help our networks grow.
~Tim
Monday, November 5, 2007
Medical Malpractice Legislation in Kentucky
Returning to the tort reform theme, yesterday's Lexington Herald Leader reported that Kentucky Governor Ernie Fletcher has proposed a compromise bill that would attempt to make the insurers happy without imposing caps on medical malpractice awards in actual litigation. How does he propose to accomplish this? Well, it seems that Gov. Fletcher wants to eliminate frivolous cases by having a review board look at all medical malpractice claims and certify their merit before the case can be filed.
Who would sit on the review board? You guessed it - doctors. Talk about the fox guarding the hen house.
Now, I have no problem with states that require an affidavit from a doctor certifying the merits of the case, so long as the plaintiff can choose the doctor. That approach seems reasonable. But, when you move to an "independent" board (likely one appointed by the governor), you open up the process to politics. Is a pro-insurance governor going to appoint people to the board who will take a dim view of any medical malpractice case? On the flip side, will a pro-consumer governor (if any actually exist) appoint board members who will certify everything? This is not a good approach.
The fact is, the rules in place in Kentucky (and most everywhere else) are already capable of achieving the stated goal of Governor Fletcher's plan - to eliminate the frivolous lawsuit. There are the provisions of Rule 11, plus the added pleading requirement that a plaintiff obtain a pre-filing certification that the case has merit.
No, I am afraid this is just another attempt to permit the insurance companies to achieve their goal of writing policies while eliminating the risk that they might have to pay out on claims.
On a related note - readers who have been around for a year or so will recall my interest in tort reform in Ohio. That was occasioned by the fact that I was involved in a pharmacy misfill case up there. That case is now over, but my interest in the Ohio attempt at tort reform (caps on punitive and non-economic damages) survives. I am awaiting a decision from the Ohio Supreme Court in the Arbino case. That case was argued in April, so one would think a decision would be forthcoming soon.
~Tim
Who would sit on the review board? You guessed it - doctors. Talk about the fox guarding the hen house.
Now, I have no problem with states that require an affidavit from a doctor certifying the merits of the case, so long as the plaintiff can choose the doctor. That approach seems reasonable. But, when you move to an "independent" board (likely one appointed by the governor), you open up the process to politics. Is a pro-insurance governor going to appoint people to the board who will take a dim view of any medical malpractice case? On the flip side, will a pro-consumer governor (if any actually exist) appoint board members who will certify everything? This is not a good approach.
The fact is, the rules in place in Kentucky (and most everywhere else) are already capable of achieving the stated goal of Governor Fletcher's plan - to eliminate the frivolous lawsuit. There are the provisions of Rule 11, plus the added pleading requirement that a plaintiff obtain a pre-filing certification that the case has merit.
No, I am afraid this is just another attempt to permit the insurance companies to achieve their goal of writing policies while eliminating the risk that they might have to pay out on claims.
On a related note - readers who have been around for a year or so will recall my interest in tort reform in Ohio. That was occasioned by the fact that I was involved in a pharmacy misfill case up there. That case is now over, but my interest in the Ohio attempt at tort reform (caps on punitive and non-economic damages) survives. I am awaiting a decision from the Ohio Supreme Court in the Arbino case. That case was argued in April, so one would think a decision would be forthcoming soon.
~Tim
Subscribe to:
Posts (Atom)