Ohio Criminal Appeals Lawyer Blog

Today the Ohio Supreme Court decided a case on sealing of criminal records. Here is the syllabus by the Court: "[w]hen an applicant with multiple convictions under one case number moves to seal his or her criminal record in that case pursuant to R.C. 2953.32 and one of those convictions is exempt from sealing pursuant to R.C. 2953.36, the trial court may not seal the remaining convictions." Read the Ohio Supreme Court's decision in State v. Futrall, 2009-Ohio-5590, by clicking here. Watch the oral argument in the Ohio Supreme Court by clicking here. See Ohio's Ninth District Court of Appeals decision by clicking here.

Ohio's Second District Court of Appeals reversed convictions for rape and gross sexual abuse of a child under thirteen because of hearsay and confrontation clause problems. Most interesting was the Appellate Court's interpretation of what is included in "statements for purpose of medical diagnosis or treatment."

The complainant, who did not testify at trial, received counseling from a school psychologist. The complainant first told the psychologist she had been raped, but later she told the psychologist that she had only dreamt she was raped, and finally she told the psychologist that she made up the allegations.

Whether the child was actually violated is irrelevant for legal purposes because the courts deal with "evidence" and not reality as you can read by clicking here.

The trial judge would not allow the psychologist to testify about what the victim told her because it was hearsay (an out of court statement offered for the truth of the matter asserted). The trial court determined that the statements were not made to the school psychologist "for purposes of medical diagnosis or treatment" because the psychologist was not trying to diagnose or treat the complainant. The psychologist was just "counseling" the complainant.

But in reversing the convictions and remanding for a new trial, the Second District Court of Appeals stated "[r]estricting the meaning of diagnosis or treatment in Evid.R. 803(4) in too narrow a way undercuts the function of nurses, psychologists, therapists, social workers and numerous other individuals who routinely treat victims of sexual abuse for physical, mental and emotional problems, often by counseling them." Read the full decision by clicking here.

The case of State v. Burkholder, 2009-Ohio-5526, is a good example of why you should not go it alone on appeal. Barry Burkholder was apparently indigent but he did not send a notarized affidavit of indigency to the Second District Court of Appeals. So the Court of Appeals informed him that he would not get a criminal defense lawyer for his appeal. Instead, Barry tried to go it alone, but he basically sent an incoherent letter making conclusory allegations without getting a transcript made of the proceedings in the trial court. The Court of Appeals said its hands were tied as you can read by clicking here.

I mentioned elsewhere on this site that your best bet is to get a good criminal defense lawyer for your appeal. Here's an example of why. The State actually appealed - in the case you can read by clicking here - to the Eighth District Court of Appeals. When the State appealed on one issue, the defense decided to cross appeal on another issue. But the defendant filed his cross appeal one day late. Just one day. So the Court of Appeals said that it lacked jurisdiction to hear the cross appeal and dismissed it instead. Get yourself a good criminal defense lawyer on appeal to give yourself the best possible chance at winning your appeal. You cannot win your cross appeal on the merits if the Court of Appeals does not have jurisdiction to consider it at all.

Felonies are not usually witnessed by police officers. Sometimes, but not usually. Traffic stops can lead to more than tickets for simple traffic violations and police know that. It is called "good police work." The vehicle you are driving or riding in is pulled over. Then the Officer sees, hears, or smells something and the next thing you know one or all of the occupants of the vehicle are handcuffed and seated in the back of police cars to face eventual felony charges.

Police can make the initial stop for all sorts of reasons like:

Following too closely as you can read by clicking here, 2009-Ohio-5199.
(The defendant ended up charged with possession and trafficking of drugs after her friend was following another vehicle too closely, the passenger and driver gave the officer different answers to questions, the passenger was intoxicated, a K-9 unit was called out, the dog alerted on the vehicle giving the officer probable cause to search, etc. It all started with following too closely.)

Failing to use your turn signal as you can read by clicking here 2009-Ohio-4897, or here 2009-Ohio-994, when either turning or switching lanes. In 2009-Ohio-559 the failure to use the turn signal when turning into someone's driveway led to a canine sniff and an alert on materials to make meth which ultimately led to a three year prison term.

The title "Criminal Defense Attorney" or "Criminal Defense Lawyer" is a misnomer and is sometimes used as a weapon against those who represent the legal interests of the accused. Have you ever heard "how can that lawyer defend him?" or "as a criminal defense lawyer, I could not defend her." Or how about "how can those criminal defense lawyers sleep at night defending those people?"

Well, as a criminal defense lawyer representing the legal interests of criminal defendants on appeal, I have never defended the actions of any of my clients. I am not in favor of and I do not "defend" rape, murder, child molestation, burglary or even shoplifting or jaywalking. I have never claimed on appeal that the crime for which the person was convicted should not be a crime.

But those who could never see themselves as criminal defense lawyers best understand that what "criminal defense lawyers" do is vital to our justice system. The Constitution of the United States requires that the criminally accused receive the effective assistance of counsel. And so does the Ohio Constitution. So if you want to lock someone up for the rest of their lives or "fry" them (for those in favor of the death penalty), you better hope the accused has the effective assistance of counsel or the conviction and/or sentence will not stand up to scrutiny by reviewing courts.

I do not see myself as defending criminals or crimes. What I do as the lawyer for the accused is aggressively assert the legal rights of the accused (be they innocent or guilty). I challenge the State's case. The State builds a wall (their case) and the counsel for the accused tries with all their might to knock it down. Only when the wall is still standing after the accused was afforded the effective assistance of counsel can we know a conviction and/or sentence is "valid."

As a lawyer representing the accused on appeal, trying to knock down walls is my job. I am not going to cop out and claim "I am just doing my job" because I chose this job. This job is an important one. If your calling is to be a prosecutor, go do that. But if your interest is in making sure our legal system is as fair as possible, join the "dark side" and become a "criminal defense lawyer," although that title is a misnomer.

Even though Defendant's criminal defense lawyer did not object and Defendant's criminal defense lawyer on appeal did not raise the issue, Ohio's Eighth District Court of Appeals reversed Defendant's conviction for multiple sex offenses against two nieces because Defendant's wife was not competent to testify against him pursuant to Evidence Rule 601(B) as you can read by clicking here.

Evidence Rule 601 lists those that are not competent to testify as witnesses in court. Pursuant to Evidence Rule 601(B)(2), a spouse is not competent to testify against their spouse when the crime is against someone other than the spouse or their child and the testifying spouse does not elect to testify. The Ohio Supreme Court has stated in State v. Brown, 2007-Ohio-4837, and State v. Adamson, 1995-Ohio-199, that the trial court must instruct the testifying spouse about "spousal competency" and make a finding on the record that the testifying spouse has "elected" to testify. Failure to do so is reversible error.