Friday, May 31, 2013

Ohio’s honoring Gideon & his legacy

It’s been a little over 50 years now since the Supreme Court’s decision in Gideon v. Wainwright in 1963 and the birth of the public defenders concept in this country.

Although there had been some provisions for free attorneys for indigent persons prior to Gideon, Gideon served as the catalyst, as it were, for a wave of change. Wikipedia’s public defender article notes that “over half a century before Gideon, the first person to ever propose the creation of a public defender's office was California's first female attorney, Clara Shortridge Foltz, in a time when young, inexperienced attorneys were often ordered by the courts to defend indigents pro bono. In that capacity, she saw firsthand the inequitable results of that system and became the first to proposed the idea of public defenders in a speech at the Chicago World's Fair in 1893. As a result of her lobbying, Los Angeles County hired Walton J. Wood to head the first public defender's office in the United States in January 1914, and, in 1921, the California Legislature extended the public defender system to all its state courts.”

Problems of excessive case loads and low salaries have been among the paramount issues that have plagued state public defender offices almost since their onsets and continue to be in the news around the country to this day.

As part of the state’s observation Gideon during the Ohio Supreme Court’s Forum on the Law last May 23rd., a panel of Ohio legal professionals explored how the indigent jailhouse lawyer had changed history 50 years ago. Part of that program was a discussion centered on whether the guaranteed right to counsel was being fulfilled five decades later, and addressed how the structure and funding of Ohio’s indigent defense system impacted that promise and quality representation.

The Supreme Court’s news service reported Tim Young’s, director of the Office of the Ohio Public Defender, saying “Ohio has failed Gideon’s promise because of the structure and funding of the indigent delivery system, in part because the 1984 case, Strickland v. Washington, establishing a right to an effective lawyer but not defining ‘effectiveness’, which he finds ‘undermined any incentive to improve our structure or funding,’” (Wikipedia on "ineffective assistance of counsel")

Senate Bill 139, introduced on May 29th. will seek  to address at least some of these issues. The bill in its initial form seeks:
-- To provide a 50 per cent reimbursement to the counties for their indigent defense costs, to increase the guaranteed reimbursement rate for such indigent defense costs, to require the State Public Defender to approve the establishment of county public defender commissions, to approve the appointment or retention of the county public defender, and to set a statewide schedule of hourly rates and per case maximums to be paid to appointed counsel, to eliminate the option for a county to operate a joint-county public defender system, to permit the State Public Defender to create state-run regional and district offices that would operate in lieu of the county-run systems, to allow the State Public Defender to use the Indigent Defense Support Fund to pay the state’s portion of costs for the regional and district offices, to provide that the Governor’s next appointment to the Ohio Public Defender Commission be from a list of nominees submitted by the County Commissioners Association of Ohio, and to allow the State Public Defender to contract directly with a municipal corporation to provide representation in municipal ordinance cases.

Wednesday, May 29, 2013

Ohio Supreme Court Adopts Standardized Domestic Relations Forms

The Ohio Supreme Court yesterday announced its adoption of 23 standardized forms designed specifically to increase access to justice in family-law related proceedings in the state’s domestic relations and juvenile courts.

The Court’s news service related Stephanie Nelson’s, policy and research counsel in the Children, Families, and the Courts Section, saying “the standardization will assist by promoting efficiencies and fostering uniformity in domestic relations and juvenile courts because some proceedings are similar in both courts. Additionally, attorneys practicing in multiple jurisdictions will benefit from consistent standards”

Key information, relevant instructions, and guidance are embedded in the forms using plain English as much as possible, and, effective July 1, will be posted on the Supreme Court’s website in formats that can be completed either online or printed out for completion by hand.

The 23 new forms now being adopted follow the five other domestic relations forms adopted in 2010. Local jurisdictions can still employ their own forms, but are have to accept the standardized ones as well.

Preview of New Forms

[ Also note Rules of Superintendence for the Courts of Ohio (Sup. R. 51 Standard Probate Forms 18.0, 18.2, 18.4, 21.5, 23.0, 23.1, 23.2, 23.3, 23.4, 23.6, 23.7), effective January 01, 2010 ]

Tuesday, May 28, 2013

Reality bytes: A reminder of the new ABA Model Rules of Professional Conduct amendments

It might be scary for some of you, or you might maintain that “it is written” equals books & hard copy…. We’re sorry.

It’s not joke, but, as G.M. Filisoko wrote in the April 1st. 2013 issue of the ABA Journal, “No excuses, attorneys. It’s time to add boning up on the latest technology to your to-do list., and that’s the only way to fulfill the requirements of six resolutions the ABA House of Delegates adopted almost a year ago now last August to amend the association’s Model Rules of Professional Conduct.

“Among every lawyer’s new duties: keeping up with technology relevant to the client and the representation, and protecting electronically stored confidential client information. Seems straight-forward enough, but it’ll almost certainly require more of your brain’s daily bandwidth…. George Paul, a partner at Lewis & Roca in Phoenix and co-chair of the ABA E-Discovery and Digital Evidence Committee told Filisoko that ‘your duty wouldn’t stop at your practice’s borders. You must also track how technology is revolutionizing the economy.

Circle your wagons if you must, but don’t unhitch the mule. Help is out there, and it's not a totally impossible task. The ABA Commission on Ethics 20/20 has the model rule amendments and other helpful information are on its website, but they’re the signposts & guidelines. The article mentioned above can help.

Local bar associations are often putting together programs to assist, such as the Cincinnati Bar Association’s Paperless CLE Initiative here, which was started just this month.

Law schools and libraries around the nation are beginning to put together pathfinders or library guides, such as this one from Pace Law Library, to help guide you in your quest.

It’s also good to keep in mind that the whole thing’s still fluid.’s Law Technology News last week carried an article about the International Legal Technology Association’s having launched the "ILTA Legal Technology Future Horizons — Transformational Forces Project,” a core component of which will be a global research study conducted in partnership with Fast Future Research Ltd., which will explore the "potential impact of new and emerging technologies for law firms and the resulting strategic priorities over the next 10-15 years.” Key study findings and recommendations there, according to the article, are going to be delivered through interim updates, with the final report, an executive briefing and a keynote speech scheduled for ILTA's Insight 2013 conference in London on November 14, 2013.

Friday, May 24, 2013

Sixth Circuit Court of Appeals update,,,,,

Speaking of the Sixth Circuit, it’s been quite a busy month in those hallowed halls and we wanted pass on mention of four cases especially.

Another case out of the Sixth Circuit being petitioned to the Supreme Court is White v. Woodall, Case 12-794, questioning “(1) Whether the Sixth Circuit violated 28 U.S.C. 2254(d)(1) by granting habeas relief on the trial court's failure to provide a no adverse inference instruction even though the Supreme Court has not ‘clearly established’ that such an instruction is required in a capital penalty phase when a non-testifying defendant has pled guilty to the crimes and aggravating circumstances; and (2) whether the Sixth Circuit violated the harmless error standard in Brecht v. Abrahamson in ruling that the absence of a no adverse interference instruction was not harmless in spite of overwhelming evidence of guilt and in the face of a guilty pleas to the crimes and aggravators.” (Woodall's Petition for Certiorari)

Robert Woodall had pled guilty to capital murder, capital kidnapping, and first degree rape in the death of a 16-year old girl in 1997. Court records showed that at the penalty trial, Woodall cross-examined each of Kentucky’s eleven witnesses and called fourteen of his own witnesses who testified about Woodall’s life and upbringing. Woodall did not testify, but had then requested that the trial judge instruct the jury that it should not draw any adverse inference from his decision not to. The trial judge concluded that Woodall was not entitled to the requested instruction, determining that, by entering a guilty plea, he had waived his right to be free from self-incrimination. The trial court adopted the recommendations of the jury and sentenced Woodall to death on the murder conviction and life imprisonment for the remaining convictions.
Woodall unsuccessfully appealed his sentence to the Kentucky Supreme Court and then filed a writ of habeas corpus in federal district court, which the district court granted because the trial court denied him his Fifth Amendment right against self-incrimination and made a constitutional error during jury selection. The Sixth Circuit affirmed the state’s appeal in July 2012, which is now what is being attempting to be brought before the Supreme Court.

Two sentencing cases were decided, the first, on May 6th. , seeing the Sixth Circuit affirm the ruling made by the District Court for Northern Ohio in Cleveland denying a motion for sentence reduction in U.S. v. Keith Thompson, case 12-4118 -- a case which centered around the federal sentencing guidelines.

In December 2005, Keith Thompson was charged in a five-count indictment, four of them being possession with the intent to sell/distribute crack cocaine on three separate occasions. The fifth count was a weapons under disability count. In April 2006, pursuant to a non-binding plea agreement, Thompson pleaded guilty to three counts of possessing crack cocaine with the intent to distribute, in exchange for the government’s dismissing the two remaining counts against him and agreeing it would not oppose his request for a “downward departure or variance [that] would result in a sentence of not less than 120 months.” The district court sentenced Thompson to 120 months of imprisonment with three years of supervised release, reasoning in part that “[he] have had a base offense level of 24 under U.S.S.G. § 2D1.1 (the “crack cocaine guidelines”). However, because he was deemed a career offender, his actual base offense level was 32 under U.S.S.G. § 4B1.1 (the “career offender guidelines”), and a downward departure to 29 was granted to reflect Thompson’s acceptance of responsibility. The court found that the guidelines sentencing range was 151-188 months because Thompson’s criminal history category was VI. After considering the factors contained in 18 U.S.C. § 3553(a), the judge ultimately sentenced Thompson to 120 months of imprisonment. Such sentence was the same sentence contemplated by the plea agreement. Thompson challenged the sentence but lost.

An appeal and motion for reconsideration were both denied by the District Court, after which he first filed an appeal and then a joint motion to dismiss & remand with the Sixth Circuit, arguing that two recent decisions—Freeman v. United States, 131 S.Ct. 2685 (2011), and United States v. Jackson, 678 F.3d 442 (6th Cir. 2012)—compelled the court to hold that his sentence was eligible for reduction because his sentence was “based on” the crack cocaine guidelines. The District Court, however, disagreed, holding that the crack cocaine guidelines were not relevant to Thompson’s sentence calculation, but that his sentence had been based on his status as a career offender and also noting that it considered Thompson “to be a risk to the community and would not exercise its discretion to lower his sentence even if a reduction were allowable under the new sentencing guidelines.” On appeal once again, the Sixth Circuit upholding that view.

The University of Pittsburgh’s Jurist Paperchase, detailed the second case of note here, USA v. Cornelius Blewett, 12-5226 on May 17, 2013 from Western District of Kentucky at Bowling Green --- brought by two incarcerated defendants seeking retroactive relief from racially discriminatory, 10-year mandatory minimum sentences imposed on them in 2005.

Jurist wrote, the ruling “expands upon the June 2012 US Supreme Court ruling in Dorsey v. United States, 11-5683, to expand the Fair Sentencing Act of 2010 by applying it to defendants were sentenced after the act was in place, even if they were arrested before the act took effect. In Dorsey, Justice Stephen Breyer concluded: ‘[T]he FSA did not include any language to make it apply retroactively, but it not did explicitly deny such retroactivity either.’ In 2007, the U.S. Sentencing Commission voted unanimously to give retroactive effect to an earlier sentencing guideline amendment that reduced crack cocaine penalties, and a study released by the US Sentencing Commission (USSC) in April 2008 reported that more than 3,000 prison inmates convicted of crack cocaine offenses had their sentences reduced under an amendment to the Federal Sentencing Guidelines.

A final , perhaps more noteworthy, instance last week is the Sixth Circuit’s siding with the Department of Immigration’s challenging of a family's asylum on the grounds that Germany's ban on home-schooling did not constitute persecution and thus could not be used as a basis for political asylum in the United States.

In this case, Uwe Romeike v. Eric Holder, Jr., 12-3641, husband and wife, who now have six children, ABCNews reported, came to the United States in 2008 after the German government threatened them with legal action for “home-schooling” their children, which is banned in Germany, and were initially granted asylum by a US judge who believed Germany had restricted their religious freedom.

“U.S. law,” according to the article, “says that individuals can qualify for asylum if they can prove they are being persecuted because of their religion or because they are members of a particular ‘social group,’ but the family's asylum was challenged on the grounds that Germany's ban on home-schooling did not constitute persecution and thus could not be used as a basis for political asylum in the United States.

Thursday, May 16, 2013

Supreme Court review of Sixth Circuit ruling in indigent's civil rights case

As the National Law Journal’s Tony Mauro phrased it earlier this week, “the Supreme Court's running feud with the U.S. Sixth Circuit Court of Appeals resumed Monday, May 13th., with the justices' decision to grant review in a Tennessee case involving civil rights complaints filed by prison inmates, and it's also taking the unusual step of granting that review -- filed an indigent former inmate -- without any response from the Memphis police officers he sued…"

The case, Burnside v. Walters, asks the Court whether the Sixth Circuit was correct in its ruling that federal rules of civil procedure prohibit indigent civil rights plaintiffs from amending their complaints before they are dismissed. Mauro’s article says defendant William Burnside’s lawyers assert 11 other federal circuits have ruled the other way. (Burnside's Petition for certiorari )

Burnside was arrested by Memphis police in 2008, being charged with making false 911 calls – which he denied. He was none-the-less jailed for 10 days before the charges were dropped and subsequently filed  suit under 42 U.S.C. 1983, claiming the arrest violated his civil rights.

The District Court for Western Tennessee dismissed the complaint “in its entirety, pursuant to
28 U.S.C.§§ 1915(e)(2)(B)(ii) and 1915A(b)(1), for failure to state a claim on which relief may be granted. It is therefore CERTIFIED, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal in this matter by Plaintiff would not be taken in good faith and Plaintiff may not proceed on appeal in forma pauperis. Leave to proceed on appeal in forma pauperis is, therefore, DENIED. If Plaintiff files a notice of appeal, he must also pay the full $455 appellate filing fee or file a motion to proceed in forma pauperis and supporting affidavit in the United States Court of Appeals for the Sixth Circuit within thirty (30) days…”

The Journal’s article commented that “last term, the Supreme Court reversed all five of the Sixth Circuit’s rulings it reviewed, sometimes using sharp language to criticize the circuit's failure to abide by precedent.” Here again, “the Sixth Circuit upheld the District Court dismissal, invoking the Prison Litigation Reform Act's saying complaints that fail to state a claim in which relief may be granted ‘shall’ be dismissed. Other appeals courts have taken a more lenient approach, allowing plaintiffs to amend their complaints in such circumstances. In the 2007 Supreme Court case Jones v. Bock—also from the Sixth Circuit and cited by both sides—the justices ruled that prison complaints should not be treated differently under procedural rules in most circumstances.”

“In an effort to address the large number of prisoner complaints filed in federal court,” the Supreme Court had stated in Bock, “ Congress enacted the Prison Litigation Reform Act of 1995 (PLRA), 110 Stat. 1321–71, as amended, 42 U. S. C. § 1997e et seq. Among other reforms, the PLRA mandates early judicial screening of prisoner complaints and requires prisoners to exhaust prison grievance procedures before filing suit. 28 U. S. C. § 1915A; 42 U. S. C. § 1997e(a). The Sixth Circuit, along with some other lower courts, adopted several procedural rules designed to implement this exhaustion requirement and facilitate early judicial screening. These rules require a prisoner to allege and demonstrate exhaustion in his complaint, permit suit only against defendants who were identified by the prisoner in his grievance, and require courts to dismiss the entire action if the prisoner fails to satisfy the exhaustion requirement as to any single claim in his complaint. Other lower courts declined to adopt such rules. We granted certiorari to resolve the conflict and now conclude that these rules are not required by the PLRA, and that crafting and imposing them exceeds the proper limits on the judicial role.”

Wednesday, May 15, 2013

New Ohio Supreme Court Probate Forms

The Ohio Supreme Court will be accepting public comment on probate court forms relating to Medicaid estate recovery, real property certificates of transfer, foreign adoption, and disinterment applications until June 11, 2013.

The Supreme Court’s news service relates that the following three existing probate court forms would be revised, under the proposed amendments:

•Form 7.0 (Certification of Notice to Administrator of Medicaid Estate Recovery) would be used by the estate administrator to notify the probate court that notice of the receipt of Medicaid benefits has been filed.

•Form 12.0 (Application for Certificate of Transfer) complies with recent legislative changes requiring that the form provide the domicile instead of the residence of the decedent, indicate whether spousal elections have been exercised, and indicate whether any disclaimers or assignments have been filed.

•Form 12.1 (Certificate of Transfer) would identify the person who prepared the certificate to conform with a statutory provision allowing for the inclusion of additional information that, in the opinion of the probate court, should be included.

Additionally, there are 10 proposed new probate court forms under consideration:

•Form 7.0(A) (Notice to Administrator of Medicaid Estate Recovery) would be used by the estate administrator to notify the administrator of the Medicaid Estate Recovery Program of the receipt of Medicaid benefits.

•Form 19.2 (Petition to Recognize Foreign Adoption) would be used by practitioners to provide a probate court with the necessary information for the recognition of a foreign adoption.

•Form 19.3 (Order for Ohio Birth Record for Foreign Born Child) would be used by the probate court to make a finding that a petitioner has complied with the statutory requirements for recognition of a foreign adoption and to order the issuance of a new birth record for the child.

•Form 25.0 (Application for Order to Disinter Remains) would be used by an applicant to petition a probate court for an order to disinter the remains of an individual.

•Form 25.1 (Judgment Entry Setting Hearing on Application for Disinterment) would be used by a probate court to set the date, time, and location for the hearing on an application for disinterment.

•Form 25.2 (Notice on Hearing for Disinterment) would be used by a disinterment applicant to notify individuals of the hearing on the application.

•Form 25.3 (Affidavit of Service of Notice of Hearing on Application for Disinterment) would be used by a disinterment applicant to affirm that the applicant has notified all persons interested in the application as required by law.

•Form 25.4 (Verification of Reinterment) would be signed by a cemetery verifying that the remains of the decedent were reinterred.

•Form 25.5 (Waiver of Notice of Application to Disinter Remains) would be signed by individuals who waive their right to be notified of an applicant for disinterment.

•Form 25.6 (Order to Disinter Remains) would be used by the probate court to order the disinterment of the decedent.

Language of All Forms

Comments should be submitted in writing to:
John VanNorman, Policy and Research Counsel
Ohio Supreme Court
65 South Front Street, Seventh Floor
Columbus, OH 43215

Or via e-mail to

Tuesday, May 14, 2013

Ohio Firearm Protection Order Bill

A bill was introduced in the Ohio House last week that would “require persons subject to civil or criminal domestic violence temporary protection orders surrender all firearms in their immediate possession or control to a law enforcement agency or federally licensed firearms dealer.

Collaborating provisions& include that:“Within five days after the expiration of an order (here) described, a law enforcement agency having custody of a firearm surrendered pursuant to the order shall return the firearm to the defendant, unless another protection order has been issued that prohibits the defendant from possessing a firearm or the agency determines that the firearm has been stolen or that the defendant is prohibited from possessing a firearm under state or federal law.

“(a) If a law enforcement agency determines that the defendant is the legal owner of any firearm deposited with the agency and is prohibited from possessing any firearm, the defendant may (sell) all the defendant's firearms that are in the custody of the agency to a federally licensed firearms dealer while the order remains in effect, and within five days after a dealer presents the agency with a bill of sale indicating that the defendant has sold to the dealer all of the defendant's firearms that are in the agency's custody, the agency shall give possession of those firearms to the dealer.

“(b) If a law enforcement agency determines that the defendant is not the legal owner of any firearm deposited with the agency, the agency shall make a reasonable attempt to identify and return the firearm to the legal owner. If the agency cannot identify the legal owner or if the owner is prohibited from possessing a firearm, the agency shall treat the firearm as unclaimed property and dispose of it accordingly….”

“….. If the defendant notifies the court that the defendant owns a firearm that is not in the defendant's immediate possession, the court may limit the order to exclude that firearm if the court is satisfied the defendant is unable to gain access to that firearm while the protective order is in effect. “

“…. If the defendant refuses to relinquish possession of any firearm on the grounds that such relinquishment would constitute self-incrimination in violation of the United States Constitution or Ohio Constitution, the court may grant use immunity for the act of relinquishing the firearm.”

Text of Bill as Introduced

Thursday, May 09, 2013

Ohio Violent Career Criminal Act

Jim Hughes and Frank LaRose yesterday introduced the Violent Career Criminal Act in the Ohio Senate which seeks to:
• to double the mandatory prison term for an offender who is convicted of a firearm specification and previously has been convicted of a firearm specification;

• to similarly double the period of authorized or mandatory commitment to the Department of Youth Services of a delinquent child who is guilty of a firearm specification and previously has been adjudicated a delinquent child for committing an act that would constitute a violation of a firearm specification if committed by an adult; and

• to prohibit violent career criminals from knowingly acquiring, having, carrying, or using any firearm or dangerous ordnance; and to require a mandatory prison term for a violent career criminal convicted of committing a violent felony offense while armed with a firearm.

The bill was referred to the Criminal Justice Committee for consideration. [Text of Bill ]

The Columbus Dispatch earlier previewed the bill by saying “repeat violent offenders caught with a gun would spend a minimum of 11 years in prison under the new bill that aims to target career criminals.”

The Dispatch article related, too, that “Calling the crackdown on gun offenders a ‘moral imperative,’ Attorney General Mike DeWine said the proposal was a result of a violent gun-crime task force he created in 2011, that found that 1 percent of Ohio’s adult prison population since 1974 is responsible for 57 percent of the state’s violent felony convictions.” [Attorney General's press release]

[ Final Report of Ohio Attorney General Mike DeWine’s Violent Crimes with Guns Advisory Task Group, April 9, 2012 ]

Tuesday, May 07, 2013

Ohio Supreme Court’s Reconsideration of Woman's Death Sentence

The Ohio Supreme Court this morning heard State v. Roberts, the appeal of a case of a Trumbull County woman whose death sentence for the aggravated murder of her ex-husband was remanded to the trial court for re-sentencing – the questions now asked being whether on remand for new sentencing and alocution of a capital defendant, the trial court must consider mitigation adduced from the defendant's original sentence or consider and give effect to mitigation evidence available but not produced at the original penalty phase proceeding?

Defendant challenges the re-imposition of the death penalty, alleging, among other assignments of error, that the trial court committed reversible error by refusing to admit and consider at her resentencing hearing evidence of her diagnosed mental illness and brain trauma because she did not offer that evidence in mitigation of a death sentence at her original sentencing hearing. (Merit Brief)

The Court’s record indicated, “defendant Donna Roberts and one Nathaniel Jackson plotted to kill Roberts’ ex-husband. Both were arrested & indicted, but tried separately. Jackson was convicted of aggravated murder and sentenced to death, the conviction and sentence both affirmed . [State v. Jackson, 107 Ohio St.3d 300, 2006-Ohio-1 (Opinion)(Court Summary)]

Roberts was also found guilty of the aggravated murder and sentenced to death, but, on direct appeal the Court reported that her appeal “demonstrated no error that would justify reversal of her conviction. (But) although most of her claims related to sentencing also fail… we hold that the trial court’s sentencing opinion supporting the death penalty is so grievously flawed that it cannot properly support the sentence imposed. We therefore affirm Roberts’s convictions and other sentences, but we must vacate the death sentence and remand the cause to the trial court to reconsider the imposition of the death penalty and to prepare a proper sentencing opinion.” (State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665)

In now addressing the Court Roberts contends “the Court remanded (her case) for new sentencing procedure… “the reversal being based upon the failure of the trial court to allow allocution, coupled with the failure to independently prepare its sentencing opinion…. It was argued at the remand sentencing that the mitigation evidence, including (her) lack of a criminal history and mental health issues, required that a life sentence be found to be the appropriate sentence in this instance. The trial court again found death, refusing to consider any information not adduced at the required allocution hearing. Because of the wealth of mitigation available but not presented to the jury at the penalty phase hearing, the issue of the effectiveness of trial counsel is ripe to be addressed here. The records that predated the offense were proffered into the record. The issue was not raised in (her) first direct appeal as the record did not support the issue at that time.”