More Alternatives to Prison on the Horizon

Back in 2014 when the Ohio legislature overhauled the felony sentencing scheme with H.B. 86, it was clear that politicians were motivated to stem the tide of persons being sent to prison for so-called “low level, non-violent offenses.”  As part of the new legislation, courts were constrained in their ability to send offenders to prison, under certain circumstances, for non-violent felonies of the 5th and 4th degree.  The extent to which this legislation has been effective in reducing the prison population is debatable, but it nonetheless signaled a realization that perhaps prison is not always the appropriate punishment for certain types of felons.

I say the results are debatable because in my experience, very few courts were sending these types of offenders to prison anyway.  Most judges were willing to give non-violent, first time felons a chance at community control (probation).  But, there are judges that seemed too quick to send defendants to the penitentiary, and at least in these counties, judges had to work harder to impose such sentences.

Well, the legislature has not stopped with H.B. 86 in its effort to find alternatives to prison.  One of the more recent ways in which the legislature has acted on this front is with a program called “TCAP,” which stands for “Targeted Community Alternatives to Prison.” On June 30, 2017, Governor Kasich signed into law a budget bill (H.B. 49), which among other items, further restricted the ability of common pleas courts to sentence low-level felony offenders to prison in the first instance for counties participating in TCAP.

Additionally, the revised sentencing statutes also also restrict the judge’s ability to send felons to prison for the entirety of the reserved prison terms after violating the terms of their community control. Let’s talk about both of these important changes, starting with TCAP.

TCAP started initially as a pilot program in a handful of counties; but, beginning July, 2018, the 10 most populated counties in Ohio are required to participate in this initiative.  Essentially, courts are given monetary incentives to find alternatives to prison.

Counties that are required to or voluntarily decide to participate in TCAP are generally prohibited from sending F5 offenders to prison if their sentences for felonies of the fifth degree is twelve months or less.  There are exceptions, of course, including sentences imposed for F5 sex, violent or drug trafficking offenses.  Additionally, if the offender has a previous conviction for a sex or violent offense, the judge can send an F5 offender to prison for a 12 month sentence.

In exchange for these sentencing limitations on F5 offenders, TCAP counties will receive block grant funding from the Ohio Dept. of Rehabilitation and Corrections, based on a pre-determined formula (that is outside the scope of this post).  In short, ODRC will help pay for alternative programming that is utilized by the sentencing court in lieu of sending someone to prison.  It is important to note that in order to be TCAP eligible, the judge must determine that the offender is someone that would ordinarily be sentenced to prison as opposed to being granted community control.

And, as previously noted, the new sentencing scheme also restricts a court from sending an offender that is on community control to a lengthy prison term should he violate those terms.  Essentially, if an offender is placed on community control for a 5th degree felony and subsequently violates his community control, the court can only send that person to prison for 90 days (as opposed to 6-12 months) if the violation is “technical” or the commission of a misdemeanor offense.  Similarly, if an F4 defendant violates community control, a judge can only send the person to prison for 180 days (as opposed to 18 months) as long as the violation is “technical” or a misdemeanor.

Curiously, however, there is no definition of what constitutes a “technical” violation.  Does it mean failing to report? Failure to obtain employment or complete required treatment?  Or, does the term “technical” extend to having a positive drug screen?  At this juncture courts and the defense bar do not have a complete handle on this aspect of the revised sentencing statutes.  But, you can be sure defense attorneys will be arguing that a great many violations are merely “technical.”  Sooner or later there will be a judicial gloss on this term, or the legislature will have to provide better guidance.  Nonetheless, it is apparent that our elected representatives are further attempting to restrict the number of low-level felons that go to prison.  Will it work?  Only time will tell.

Ohio’s safe haven law – teens should take advantage

There has been another high-profile case involving a pregnant teen accused of killing her newborn baby.  Now, it needs to be made absolutely clear that this blog is NOT claiming that the teen caused the death of the child.  The defendant in this case is claiming the baby was still-born.  As we are not privy to the evidence, and she has not been convicted after the state has been put to its proof at a trial, we will presume that the young lady is innocent, as required under our constitution.

However, the linked article mentioned a little-known provision under Ohio law that allows parents of a newborn to effectively give up their child and face no adverse consequences. The theory behind “Ohio’s Safe Haven’s” law is to encourage parents that don’t want or cannot provide for a newborn to voluntarily surrender the child rather than, say, bury the child in the back yard.  The statute allows a parent to “voluntarily deliver his or her child who is not older than thirty days, without intent to return for the child, to a person specified in section 2151.3517 of the Revised Code or a newborn safety incubator … .”

Parents can deliver the child to places such as a fire department or a childrens services agency.

If the statutory requirements are followed, the parents have immunity from prosecution for effectively abandoning their newborn (remember, parents would otherwise have an absolute legal obligation to provide for their offspring, absent a court order reallocating their responsibilities).

More specifically, R.C. 2151.3525(A) provides the following:  “A parent does not commit a criminal offense under the laws of this state and shall not be subject to criminal prosecution in this state for the act of voluntarily delivering a child under section 2151.3516 of the Revised Code.”

It is important to note, however, that the immunity is not absolute. If state officials determine (or even believe, really) that the child was subject to any form of abuse or neglect, prosecution can still be had.  What provision “(A)” giveth, provision “(B)” can taketh away: “A person who delivers or attempts to deliver a child who has suffered any physical or mental wound, injury, disability, or condition of a nature that reasonably indicates abuse or neglect of the child is not immune from civil or criminal liability for abuse or neglect.”

Because “neglect” is not necessarily a very high burden to meet, quite frankly, there is a fairly large hole in the statute’s immunity provision.  Let me put it this way, let’s say a 16 year girl gives birth to a newborn and is scared to death. She has hidden the pregnancy from her parents and friends and does not know what to do.  Let’s further say that the child was born with some form of medical condition that needs immediate attention in order to prevent death or some injurious consequence, something not that uncommon.  Let’s further assume that after much anguish and debate, the young mother delivers the child to the local fire department and drives away one day after given birth, but too late in the game for the needed medical intervention to have taken place.

Because the fire department is one of the approved locations a parent may ‘deliver” a child under the Safe Haven’s Law, the young girl would ordinarily be immune from prosecution.  But in our hypothetical scenario, a creative prosecutor could make out a case that the mother engaged in neglect, thus removing her from the immunity provision.  Such a scenario could also arise where the child was malnourished; remember, the mother would have 30 days to effectuate the surrender.  What if she was without formula and could not successfully breast feed for a few days before delivering the child?  The statute doesn’t require much by way of injury to remove immunity.   “Any” injury or condition that “reasonably” indicates neglect would suffice.

All of this is to say that it is important for more Ohioan’s to know about this law and to advocate that young mother’s to take advantage of the law when applicable.  But, a young mother also needs to be cognizant that there is not absolute immunity.  If the state of Ohio determines that the child has suffered an injury that indicates neglect (would dehydration suffice?), she can then be prosecuted.  Would a prosecutor initiate such a case? One would hope not, but then again, ridiculous prosecutions abound on a daily basis all across this country.

 

 

 

Domestic Violence – often a misnomer

I have written before that domestic violence is one of the most over-charged offenses in Ohio – probably the nation – given politics have corrupted common sense.  What do I mean by this?  Well, the police and prosecutors charge folks with domestic violence when, in reality, no one in their right mind would actually describe the conduct underlying the charge as “violent.” Are they wrong for doing so?  In one sense, yes: a person should not be facing 6 months in jail, a $1,000.00 fine and other collateral consequences for literally pushing their significant other out of the way or poking them in the chest, for example.  Yet, that constitutes domestic violence.  This is a shock to many, which is why innumerable clients’ significant others have begged and pleaded that charges be dropped once cooler heads prevailed.  Does the State listen to the pleas of the “victim”?  Sometimes, but far too often they do not.  In fact, it is not uncommon for prosecutors, detectives, and “victim’s advocates” to actually bully the victim – all in the name of protecting them.   How does this happen?

A common scenario goes like this: husband and wife are arguing, it gets heated, and eventually they start physically struggling in some form or another.  There are no punches thrown, there is no wielding of a weapon, but just pushing and shoving, etc.  No one has any injuries, no medical attention is needed, they are just so upset with each other they can’t stand it.  In effort to stop the arguing, one or both of the participants calls 911 – BIG MISTAKE.  Once the police are involved, the husband is going to jail.  Although both parties do not have any visible injuries to speak of, refuse any medical treatment, if the police are told that there was even the slightest bit of touching, they are going to arrest, period.  Cops don’t show up to not arrest people, that is what they do, especially now that there is a mandatory arrest directive in cases of suspected domestic violence.  It is like asking a a lion to not eat a steak sitting right under its nose, it isn’t going to happen. In short, I hear all the time that the wife “only wanted the police to make him leave for a bit to cool down, or to “come and tell him it is not ok to yell at me.”  But once the police are involved, the victim’s intentions are irrelevant.  The lesson here is that you should not involve the police unless you are actually in fear of suffering violence; do not attempt to use the police to negotiate peace in the home because the husband will be charged. Even if there is no actual injury? Yes.

The reason is that under Ohio law, there doesn’t actually have to be any real harm caused to the “victim.”  Courts routinely hold that the “harm” required by statute can be “slight” or “fleeting.”  In addition, the statute allows a conviction for attempting to cause harm, which means the scenario of a single push will suffice.  This is why I say that domestic violence is often a misnomer, as no person using ordinary language would describe conduct that falls under that statute as “violence.”

To be sure, I have represented plenty of guys that have caused significant injury, significant harm to their wives and girlfriends such that all of use would say he was violent. but the point I am trying to convey is that not all domestic violence cases are created equal.  Just because a guy is charged with domestic violence doesn’t mean he beat the hell out of his wife.  It could mean that he pushed her or poked her in the chest, or attempted to do so.

The state of Ohio, however, sees it all as “violence.”

Forfeiture by wrongdoing – Another method the state uses to violate your right to confront witnesses against you. Also, how many times does your attorney have to actually meet you before the state can put you to death following trial?

While doing some research the other day for a current case, I read the most recent Ohio Supreme Court case on the ages-old doctrine of forfeiture by wrongdoing and boy did it have some, shall we say, interesting “takes” by our esteemed elected justices.  I’ll start with the basics:  every criminal defendant is entitled to confront the witnesses against him at trial.  In other words, if someone provides testimony at your criminal trial, you have the absolute right to cross examine that person.  This is an inviolate right under the 6th Amendment.  Did I say inviolate?  What I should say is that like all constitutional rights, when it gets too much in the way of convictions, courts are going to chip away at it until it barely resembles what the founders envisioned.  Seem harsh?  Well, judges don’t get elected for being soft on crime. Moreover, who would ever believe that the police got the wrong guy?

Anyway, one way to get around the right to confront the witnesses against you is under the common doctrine of forfeiture by wrongdoing.  Under this doctrine, a defendant does not get to cross examine an unavailable witness at trial if that witness’ unavailability is due to the wrongdoing of the defendant.  The classic example is that of a witness who provided out of court hearsay statements to the police, is subsequently threatened by the defendant, and refuses to testify at the trial for fear of reprisal.  In this instance, the state can introduce the hearsay statements from the “unavailable witness,” and the defendant has no means to test the veracity of the statements through the crucible of cross examination.  The theory is that the defendant forfeited his right to confront the witness when he made him or her unavailable through his wrongdoing (i.e. threats).

On its face, this seems fair.  How can you complain that the person is not there to cross examine when it was you that made them unavailable?  The problem, as evidenced by State v.  Mckelton, 148 Ohio St. 3d 261 (2016), is that courts will stretch to make the doctrine applicable.  In McKelton, the defendant was accused of killing his girlfriend (and former defense attorney – same person), and the state convinced the trial judge that her previous out of court statements to nieces, social workers and others regarding the defendant’s violent behavior towards her should be allowed to come at his capital trial because he made her unavailable to testify by killing her.  No, this was not a dying declaration, which is another exception to the hearsay rule.  Rather, the trial court believed that by having killed her, she is now unavailable and her out of court statements are fair game under the forfeiture by wrongdoing doctrine.  Put the cart before the horse much?  Well, the Supreme Court rightly rejected that reasoning, as would any fifth grader struggling to understand basic logic.

So all is good in evidence land?  Not so much.  The Supremes went on to invoke the doctrine for an entirely different reason and ultimately allowed the statements to come in anyway.  According to our high court, the history of domestic violence between the two, along with the defendant’s propensity to try to prohibit the victim from reporting the abuse to authorities, means that he forfeited his right to confront the victim at trial.  Of course, one cannot confront a dead person absent the use of a medium.  So the proper decision would have been to exclude her statements. But that did not happen here.  The money quote in the decision is as follows: “Thus, although Allen (the victim) had not formally contacted police, her nieces testimony indicates that Mckelton was trying to isolate Allen and prevent her from talking to authorities.”  But not about her murder, or any other pending criminal case.  And this is where the court’s analysis fails.

Strangely, the Court seems aware that U.S. Supreme Court precedent “makes clear that the exception will not apply ‘in the typical murder case involving accusatorial statements by the victim’ when the defendant has ’caused a person to be absent’ but did not do[] so to prevent the person from testifying.”   Moreover, the court describes the test for proving this doctrine as requiring (1) the defendant engaged in wrongdoing that caused the witness to be unavailable and (2) one purpose for the wrongdoing was to make the witness unavailable to testify.  None of this was proved by a preponderance of the evidence.

The defendant did not kill the victim in order to prevent her from testifying in any case at any time, period.  He killed her because he was a bad guy and liked to beat up women. Simply put, the test for invocation of the forfeiture by wrongdoing was not met and the supreme court goofed this one.  Had there been a pending DV case and she was killed to prevent her testimony, we have a different result.  However, the court essentially claimed here that “well, you know, he tried to prevent her from reporting domestic violence to the police previously, so we find that he more likely than not killed her to prevent her from testifying” …. at some imaginary proceeding that the justices believed was surely going to come about one day.  This is wrong, wrong, wrong.

And although the court cites other cases in which courts have found that a pattern of domestic violence is relevant to the purpose prong of the forfeiture doctrine analysis, they do not explain with any more clarity just what testimony Mckelton was seeking to prevent, as is the law.  Of course a history of DV would be relevant in determining whether a particular victim is afraid to testify at a trial.  But how can DV be relevant when the victim was never going to testify at any proceeding.  There was no pending case for her to testify at.

Unfortunately, the complete butchering of logic is not the only thing we see in McKelton.  We also learn that your capital defense attorneys need only meet with you twice in order to be considered effective.  They also need not hire a mitigation expert even though the court allocated money to do so.  It is undisputed that Mckelton’s two trial attorneys only met his twice … ever!  We don’t know how long those meetings were, but two seems pretty insufficient to prepare for a death penalty case.  In the end a majority of the court shrugs this off and finds no ineffectiveness of counsel.   The Court doesn’t say that two is the minimum, so perhaps one is okay?  Maybe zero would be alright as long as the attorney shows up for trial and is wearing a suit.  I wonder if the test shouldn’t be whether your attorney can pick you out of a lineup.  My guess after reading Mckelton is that if the underlying facts of the homicide were bad enough, the court wouldn’t make that a requirement.  They might still require you to wear a suit, however.

Reading Mckelton is all types of sadness.  The man comes across as a cold-blooded killer and he probably was.  You feel sorry for those that encountered him. As I was not his attorney, I can say that.  But also saddening is the high court’s complete lack of understanding that stretching the rules to ensure this particular bad guy gets a date with the gurney causes problems for other defendants down the line.  Perhaps some of them will actually be innocent.  Police do make mistakes.  And to sign off on a death sentence where his attorneys unsuccessfully tried to withdraw from the case only to be “forced” to continue to represent him, only met with his two times in preparation of his death trial, and failed to even hire a mitigation expert, is pretty cold-blooded too.

 

 

Failing to call an expert witness in criminal child maltreatment cases may be ‘ineffective assistance of counsel’

By Daniel Pollack

The United States Constitutiodpollackn’s Sixth Amendment  states “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” The phrase that most of us probably cite most often is the last one, “the assistance of counsel.” There are many aspects to demonstrating that an attorney has lived up to a reasonable standard of competence.  The Supreme Court, in Strickland v. Washington, 466 U.S. 668 (1984), has held that the Sixth Amendment does not just guarantee a right to counsel – it guarantees a right to effective counsel. And, the Supreme Court has interpreted this right as extending to all “critical” stages of a criminal proceeding.

For a number of different reasons, ineffective assistance of counsel can be a factor in an alleged wrongful conviction. Examples may be include an attorney’s failure to call a witness, properly investigate the facts of the case, cross-examine a witness, request DNA testing, make objections to a prosecutor’s arguments, acknowledge a conflict of interest, or present an expert witness on behalf of the defendant. This article briefly investigates the last circumstance.

In the child welfare legal arena this issue may come up in child maltreatment cases. For instance, in People of the State of Michigan v. Ackley (2015), Leo Ackley was convicted by a jury of first-degree felony murder and first-degree child abuse following the death of his live-in girlfriend’s three-year-old daughter while in his care. At his trial, the prosecution called five medical experts. They testified that the child had died as the result of a head injury that was caused intentionally. Ackley’s attorney called no experts even though court funding for expert assistance was available and a forensic pathologist might have corroborated the possibility that the girl’s injuries resulted from an accidental fall. The Michigan Supreme Court concluded that that “defense counsel’s failure to engage a single expert witness to rebut the prosecution’s expert testimony, or to attempt to consult an expert with the scientific training to support the defendant’s theory of the case, fell below an objective standard of reasonableness, and created a reasonable probability that this error affected the outcome of the defendant’s trial.”

Indeed, “[c]riminal cases will arise where the only reasonable and available defense strategy requires consultation with experts or introduction of expert evidence.” Hinton v. Alabama, 134 S.Ct. at 1088 (quoting Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 788 (2011)). When is an attorney’s decision not to retain an expert witness a matter of reasonable trial strategy and tactics, and when is it evidence of ineffective assistance of counsel, resulting in a substantial likelihood of a miscarriage of justice? In reviewing a claim of ineffective assistance of counsel for failure to retain an expert witness, an appellate court must evaluate and determine whether the attorney’s decision was within the range of competence demanded of attorneys in similar criminal cases. The reviewing court should avoid the “distorting effects of hindsight” and “judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct” (Strickland, 466 U.S. at 689-90). As the United States Supreme Court has said, sometimes “a single, serious error may support a claim of ineffective assistance of counsel.” Kimmelman v Morrison, 477 US 365, 383 (1986).

dpollackDaniel Pollack is a professor at Yeshiva University’s School of Social Work in New York City and a frequent expert witness in child welfare cases, including child abuse, neglect and dependency cases. Dan is a frequent guest contributor to the Ohio Family Law Blog since 2009. He can be reached at dpollack@yu.edu  or at 212 960-0836.

This article, “Failing to call an expert witness in criminal child maltreatment cases may be ‘ineffective assistance of counsel’” originally appeared in Policy & Practice, June 2017, 25 & 34.