Cleveland Criminal Lawyer, Attorney Ron Frey

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I am a Criminal Defense Attorney in Cleveland, Ohio. I defend citizens charged with felony and misdemeanor offenses in both State and Federal Courts. If you need representation or have questions concerning criminal law, please visit http://www.FreyLegal.com and call me for a free consultation at (440) 537-0299.

Thursday, April 9, 2009

Felony Arraignments & Criminal Law in the Cuyahoga County Court of Common Pleas in Cleveland, Ohio

If you or someone you know are facing felony charges under Ohio Law in Cuyahoga County, Ohio, you may have questions concerning the arraignment process. This Blog is intended to provide a general overview of the felony arraignment procedures at the Justice Center in Cleveland, Ohio. As always, this information is simply a general overview. As every case presents unique circumstances, it is important to contact a Criminal Defense Attorney in order to discuss the particular circumstances you or someone you know may be faced with.
THE ARRAIGNMENT ROOM
In general, felony arraignments are held at the Justice Center in Cleveland, Ohio. The arraignment room is located on floor twelve (12). It is a large courtroom as many people are arraigned during a single session. Due to the large amounts of citizens being arraigned, the room is closed by security and, in general, family members and spectators are not allowed within the room (exceptions are made for the media to be present).
CHECKING IN
If the accused is not in jail, he or she will arrive as commanded. Typically, the accused receives a summons to appear. Security will instruct the defendants as to the process for checking in at that time.
THE PRESENCE OF THE ACCUSED
Ohio Law requires the presence of the defendant. However, there are exceptions to this rule and the presence can be waived in some instances. For instance, some defendants are arraigned by way of video. For example, if a person is in jail, rather than transporting the person to the Justice Center in Cuyahoga County, the court will utilize video conferencing in order to communicate with the incarcerated defendant.
THE READING OF THE INDICTMENT
After everyone is checked-in, the arraignment room judge will take the bench and court will commence. In general, the judge will begin by reading everyone their rights. In the Cuyahoga County Court of Common Pleas, these rights are often recited once to the entire group of defendants that are to be arraigned. Thereafter, the judge will call upon each individual, one at a time, to be arraigned in open court. Ohio Law requires that arraignments be conducted in open court. During the arraignment, the judge will read the indictment, information, or complaint to the accused, or state the general substance of the charges. In Cuyahoga County, the reading of the Indictment is often waived by the accused or the attorney for the accused. This right is waived for many reasons. Often, the courtroom is crowded and the accused does not want the specific charges to be recited by the judge for all of the other people to hear. Further, the criminal defendant and the defense attorney are entitled to a copy of the charges.
THE RECEIPT OF THE INDICTMENT
Prior to entering a plea, the defendant will be asked by the court if he or she has received a copy of the Indictment. Although the law requires that the accused be in receipt of the Indictment twenty-four (24) hours prior to entering the plea, this right can be waived and oftentimes is waived. For instance, in the Common Pleas Court of Cuyahoga County, Ohio it is common for the lawyers and the accused to retrieve a copy of the Indictment moments before the Arraignment process commences. Often, the lawyer will already know the charges prior to that moment and will simply waive the twenty-four (24) hour requirement. This is done unless there is a compelling reason to continue the matter to a later date. These decisions need to be made on a case by case basis.
THE PLEA
When the accused is represented by a criminal defense attorney, the attorney will typically address the court and enter the plea on behalf of the defendant. The type of pleas that are available to a criminal defendant are provided for within Rule 11 of the Ohio Rules of Criminal Procedure. In a future Blog, I will discuss the types of pleas that are available and the effect each plea may have.
BAIL AND BOND
After the plea is entered, the court will address the issue of bail and bond. The criminal defense attorney will be granted an opportunity to argue for a low bail bond and the prosecutor will be granted an opportunity to present arguments as well. The court will consider arguments from both sides and will also consider the recommendation from the Cuyahoga County Bond Commissioner. A criminal defense attorney can learn of the recommendation prior to the arraignment. Generally, the court follows the recommendation of the Bond Commissioner and in general, arguments are not presented regarding bond unless circumstances dictate otherwise. However, it is imperative that the attorney be prepared to address the issue should it be raised.
PROCESSING
After the arraignment is concluded, the accused is taken into custody for processing. The accused will be held until the processing is concluded and the conditions of the bail are met. As such, it is important to consult with a criminal defense lawyer prior to the arraignment in order to address any questions or concerns one might have concerning the arraignment procedures. A consultation can help ensure that the process is facilitated as much as possible and that everyone is prepared for the process that will unfold.
FURTHER INFORMATION
There is much more that can be said concerning this process. If you have questions or concerns pertaining to a Felony Arraignment in the Cuyahoga County Court of Common Pleas in Cleveland, Ohio, please call Criminal Defense Lawyer Ron Frey for a free consultation at (440) 537-0299 or visit http://www.criminallawyer.tel/.






Monday, April 6, 2009

Bail Bonds in Ohio State Courts

In an earlier Blog, I discussed bail bonds in the Ohio criminal justice system. In this Blog, I will discuss the types of bail bonds that a court can impose when a defendant is charged with a crime and awaiting trial pursuant to Ohio law and the Rules of Criminal procedure.
Personal Recognizance of the Accsued or an Unsecured Bail Bond
A personal recognizance bond is essentially a promise, by a person charged with a crime under Ohio law, that he or she will return to court and comply with any and all court orders. When a defendant is granted a personal recognizance bond, it is not necessary for any bond money to be posted in order for the accused to be released during the pendency of the case. In general, the accused signs the personal recognizance bond and is then released under whatever conditions of release the court may impose under Ohio law.
Ten Percent Bail Bonds
A Ten Percent Bond requires that ten percent of the amount of the bond be secured in cash. Thereafter, ninety percent of the deposit shall be returned upon compliance with all conditions of the bond. For instance, if an Ohio judge imposes a $25,000.00 Ten Percent Bond, the accused would reuire the posting of $2,500.00 in order to be released pending the resolution of the
criminal case.
Surety Bonds
A surety bond is a bond secured by real estate or securities as allowed by law. Further, cash can be deposited under this provision in order to satisfy the conditions of the bond.
Further Questions?
The foregoing is a basic overview of ohio Rule of Criminal Procedure 46. If you have more specific questions concerning Bail Bonds in Ohio, or if you have questions concerning a possible Bail Reduction, please visit http://www.criminallawyer.tel/ or call Cleveland, Ohio Criminal Attorny Ron Frey at (440) 537-0299 for a free consultation.

Thursday, April 2, 2009

Battered Woman Syndrome and Criminal procedure in Ohio Courts

I served as defendant’s co-counsel in the matter of State v. Haines (2006), WL 3813763, 2006-Ohio-6711, before the Ohio Supreme Court. The purpose of this Blog is to address the implications of the decision reached in the Haines case.
A SHIELD FOR THE DEFENSE IS NOW A SWORD FOR THE PROSECUTION

The defense attorney triumphantly returns to the table. His cross-examination of the alleged victim revealed she had lied to her friends, her doctors, her co-workers, the police, and even the prosecutor. The defendant, charged with domestic violence, noticed the look of disgust upon the juror’s faces as the alleged victim removed herself from the stand. The cross-examination erased any sympathy the jury may have initially had towards her. It was a credibility contest and it was clear the alleged victim was inconsistent and untruthful. There was reason to doubt her story. The prosecutor stood, not to rest the State’s case, but to call one last witness, a doctor, a board-certified forensic psychologist with a laundry list of credentials and experience.

THE BATTERED WOMAN SYNDROME

Dr. Lenore Walker is widely recognized as the first person to identify the battered woman syndrome. From 1978 through June 1981, Dr. Walker conducted a study of over 400-battered women to study the effects of domestic violence. Her research led her to define the syndrome as "a cluster of psychological symptoms" that women develop from living in a violent relationship. The battering relationship itself is often described as cyclical in nature, with three distinct phases: tension building, confrontation, and contrition. During the "tension building" phase, the woman is generally compliant, often feeling as though she deserves the abuse. Once the tension reaches a boiling point, the batterer will erupt uncontrollably, committing a violent act. Next, in an abrupt about-face, the abuser will exhibit seemingly intense love and affection towards his victim. The victimized women are then led to believe that the violence was an isolated incident and that it will not continue. This cycle of violence may leave the victim with feelings of learned helplessness, low self-esteem, depression, minimization techniques, self-isolation, and passivity. It is this collection of resulting symptoms that has come to be known as the "battered woman syndrome." Hawes, Removing the Roadblocks to Successful Domestic Violence Prosecutions; Prosecutorial Use of Expert Testimony on the Battered Woman Syndrome in Ohio (2005), 53 Clev.St.L.Rev. 136-137. (citations omitted).

EXPERT TESTIMONY ON THE BATTERED WOMAN SYNDROME AS A SHIELD FOR THE DEFENSE

In 1981, the Supreme Court of Ohio ruled that a defendant who plead self-defense was barred from introducing expert testimony on the subject of “battered wife syndrome.” State v. Thomas (1981), 66 Ohio St.2d 518. The Court found said testimony to be irrelevant and that the subject was within the understanding of the jury. Finally, the Court ruled that battered woman syndrome was not sufficiently developed as a matter of commonly accepted scientific knowledge to warrant testimony under the guise of expertise, and that its prejudicial impact outweighed any probative value.

Nearly ten years later, in State v. Koss (1990), 49 Ohio St.3d 213, the Court reversed its decision in Thomas and held that a defendant who claims that she acted in self-defense, could introduce evidence that she suffered from the battered woman syndrome to assist in establishing the elements of her defense. The Court reasoned that battered woman syndrome has gained substantial scientific acceptance to warrant admissibility into evidence and that the testimony will assist the jury in understanding the battered woman syndrome and assist in determining whether the defendant had reasonable grounds for an honest belief that she was in imminent danger when considering the issue of self-defense. The Court noted that the admission of expert testimony regarding battered woman syndrome does not establish a new defense or jurisdiction; it is to assist the trier of fact to determine whether the defendant acted out of an honest belief that she was in imminent danger of death or great bodily harm and that the use of force was her only means of escape. Finally, a defendant attempting to admit expert testimony regarding battered woman syndrome must offer evidence which establishes that she is a battered woman. Koss, at 217-18.

On August 6, 1990, the Ohio General Assembly enacted R.C. § 2901.06 which essentially codified the decision in Koss. R.C. § 2901.06 provides as follows:

(A) The general assembly hereby declares that it recognizes both of the following, in relation to the “battered woman syndrome.”

(1) That the syndrome currently is a matter of commonly accepted scientific knowledge;

(2) That the subject matter and details of the syndrome are not within the general understanding or experience of a person who is a member of the general populace and are not within the field of common knowledge.

(B) If a person is charged with an offense involving the use of force against another and the person, as a defense to the offense charged, raises the affirmative defense of self-defense, the person may introduce expert testimony of the “battered woman syndrome” and expert testimony that the person suffered from that syndrome as evidence to establish the requisite belief of an imminent danger of death or great bodily harm that is necessary, as an element of the affirmative defense, to justify the person’s use of the force in question. The introduction of any expert testimony under this division shall be in accordance with the Ohio Rules of Evidence.

In addition to the General Assembly’s explicit authorization for the introduction of expert testimony of the “battered woman syndrome” by a defendant who raises the affirmative defense of self-defense, the General Assembly also enacted R.C. § 2945.392, which provides as follows:

(A) The declarations set forth in division (A) of section 2901.06 of the Revised Code apply in relation to this section.

(B) If a defendant is charged with an offense involving the use of force against another and the defendant enters a plea to the charge of not guilty by reason of insanity, the defendant may introduce expert testimony of the “battered woman syndrome” and expert testimony that the defendant suffered from that syndrome as evidence to establish the requisite impairment of the defendant’s reason, at the time of the commission of the offense, that is necessary for a finding that the defendant is not guilty by reason of insanity. The introduction of any expert testimony under this division shall be in accordance with the Ohio Rules of Evidence.

Thus, the General Assembly explicitly provides for only two (2) situations wherein a defendant is explicitly authorized to introduce expert testimony of the “battered woman syndrome.” Specifically, a defendant may introduce said expert testimony where the defendant enters a plea to the charge of not guilty by reason of insanity and/or raises the affirmative defense of self-defense. R.C. § 2945.392; R.C. § 2901.06.

THE BATTERED WOMAN SYNDROME FOLLOWING KOSS

Subsequent to the holding in Koss and the General Assembly’s enactment of R.C. § 2945.392 and R.C. § 2901.06, a line of cases emerged which limited the introduction of expert testimony of the battered woman syndrome, to instances wherein a defendant intends to introduce expert testimony as evidence to establish the requisite elements of the affirmative defense of self-defense or as evidence to establish the requisite impairment of the defendant’s reason in a case where the defendant pleads not guilty by reason of insanity.

When confronted with the issue of whether a defendant can introduce expert testimony in a case where neither self-defense nor the insanity defense is invoked, reviewing courts declined the admission of said expert testimony when offered by the defendant. State v. Baker (1992), No. 13-91-46 (3d Dist. Ct. App., Seneca, 7-16-92) (the battered woman syndrome defense is not applicable in an aggravated drug trafficking prosecution, notwithstanding the fact that the defendant claims she participated in her live-in boyfriend’s drug activities because of her fear of him); State v. Redding (Mar. 5, 1992), Cuyahoga App. No. 59988, unreported (battered woman syndrome testimony is not admissible when the accused claims she did not commit the crime); State v. Sonko (1996), WL 267749 (Ohio App. 9 Dist.) (trial court properly excluded expert testimony to explain the defendant’s participation in the mailing of drugs to Ohio and held that “[s]uch evidence is limited to claims of self-defense.” at 3).

The Eleventh District Court of Appeals held in State v. Lundgren (1994), WL 171657 (Ohio App. 11 Dist.), that “[t]he limitation set forth in the statute is controlling. The General Assembly has indicated at this point, testimony concerning battered woman syndrome is only admissible when self-defense has been raised.” at 19 (emphasis added). Similarly, prosecutors who attempted to introduce expert testimony on the battered woman syndrome as a sword against the defendant, in order to explain the behavior of the alleged victims in their cases, were prohibited from doing so as the syndrome was seemingly only available as a shield to a defendant. State v. Pargeon (1991), 64 Ohio App.3d 679; State v. Dowd (1994), WL 18645 (Ohio App. 9 Dist.); State v. Cummings (2002), WL 1873809 (Ohio App. 8 Dist.).


EXPERT TESTIMONY ON THE BATTERED WOMAN SYNDROME AS A SWORD FOR THE PROSECUTION - STATE V. HAINES (2006), WL 3813763, 2006-OHIO-6711

On December 28, 2006, the Supreme Court of Ohio issued its decision in the matter of State v. Haines (2006), WL 3813763, 2006-Ohio-6711. The Haines matter was pending before the court on the certification of a conflict by the Court of Appeals for Lake County. The Court was to address the issue of whether the state may introduce expert testimony regarding battered woman syndrome to aid the trier-of-fact in determining the victim’s state of mind, e.g., to explain why she returned to the defendant despite his aggressions toward her, when a victim’s credibility is challenged upon cross-examination during the state’s case-in-chief. The Court responded in the affirmative and held that the prosecution may introduce said expert testimony.

The Court recognized that such testimony must first be relevant and have a proper foundation pursuant to Evid. R. 401. Further, the Court held that in light of the potential unfair prejudice and Evid. R. 403(A) concerns, trial courts should tailor the scope of the prosecution’s questioning and ensure the jurors are instructed as to the limits of the expert’s testimony.

DEFENDING AGAINST THE PROSECUTION’S NEW WEAPON

Relevancy

The Court in Haines found that “. . . while battered woman-syndrome testimony can be relevant for explaining a victim’s behavior, it cannot be considered relevant if there is no evidence that the victim suffers from battered woman syndrome.” Haines, at ¶46.The Court noted that evidence which generally establishes the cycles of a battering relationship is an appropriate foundation for the expert testimony. Id., at ¶48. Further, in order to be classified as a battered woman, the couple must go through the battering cycle at least twice as any woman may find herself in an abusive relationship with a man once, but if it happens a second time, and she remains, she is defined as a battered woman. Id., at ¶49.

In line with the Court’s restrictions, it is imperative that defense counsel request any and all expert reports through the discovery process. Further, prior to the introduction of said testimony, an in-camera hearing should be conducted in order to determine whether the foundational requirements are present. The hearing could potentially provide valuable discovery as inquiry can be made into the information relied upon by the expert in coming to his or her conclusion. Given the potential impact of such testimony, defense counsel should consider retaining an expert to rebut the State’s witness, both at hearing and at trial.

The Danger of Unfair Prejudice

In Haines, the Court noted that even when its relevance is shown through a proper foundation, a court must carefully weigh whether the expert testimony violates Evid. R. 403(A), which excludes relevant evidence where its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of issues, or of misleading the jury. Id., at ¶55. The Court further noted that when an expert witness diagnoses a victim as a battered woman, it is essentially a conclusion that the defendant is the batterer and in a case where the underlying charges involve domestic violence, such a conclusion is prejudicial to the defendant and usurps the jury’s role as finder-of-fact. Id., at ¶55. Even in cases which do not involve a charge of domestic violence, the prejudice remains as the defendant is labeled a batterer. Id. Finally, the Court cautions trial courts to carefully balance the admission of such testimony under Evid. R. 403.

The Scope of the Testimony

In light of the danger of unfair prejudice, the Court in Haines ruled that trial courts should tailor the scope of the state’s questioning and ensure the jury is instructed as to the limits of the expert’s testimony. Id., at ¶57. As to the limits to be imposed, the Court cited to cases which provided that experts called to testify in domestic violence prosecutions must limit their testimony to the general characteristics of a victim suffering from the syndrome. Further, the expert may also answer hypothetical questions regarding specific abnormal behaviors exhibited by women who suffer from the syndrome, but should never offer an opinion relative to the alleged victim in the case at trial. Id., at ¶56. (emphasis added). Cross-examination must likewise be limited in order to avoid opening the door to any specific opinion or testimony concerning the case at hand.

CONCLUSION

The Honorable Justice Judith Ann Lanzinger dissented to the majority opinion in Haines. Judge Lanzinger found it “mystifying” that the majority failed to recognize the limiting language within Koss and the codified ordinances. Id., at ¶ 68. Finally, Judge Lanzinger observed that the majority opinion transforms “a shield for the defense into a sword for the prosecution.” Id., at ¶ 72.
If you have questions concerning Battered Woman Syndrome and its relation to criminal law and procedure in Ohio, please feel free to contact Cleveland, Ohio Attorney Ron Frey at (440) 537-0299 for a free consultation.

Wednesday, April 1, 2009

How do courts set bail in Ohio criminal cases?

The Ohio Rules of Criminal Procedure provide guidelines for the setting of Bail in criminal cases within the State of Ohio. Criminal Rule 46 proscribes the types and amounts of bail that can be set. It further provides the conditions that can be imposed with the setting of the bail. Finally, it outlines the factors that the court should consider when making a determination as to the type of bail and the types of conditions to be imposed.
If you have been charged with a crime in Ohio, it is important to consult with an attorney about the issue of bail and issues surrounding the bail bond. Such a consultation will enable the attorney to prepare an argument on your behalf, which can be presented to the court during the bail hearing. Often, a criminal defense attorney can determine the bond recommendation prior to a bond hearing. Although the recommendation is not binding upon the court, it will be a factor that the court will consider in the setting of bail. Further, the recommendation can provide guidance to the accused so that financial arrangements can be made and a bail bondsman can be secured. It is to the advantage of the accused to have these arrangements in place prior to the bond hearing. Such arrangements can assist in facilitating the posting of a bond after the amount of the bail is set.
In a future Blog I will discuss in detail the three types of bail bonds that can be set in an Ohio court. In the meantime, if you have any questions concerning bonds, bail bonds, or bond reductions in an Ohio criminal case, please call Cleveland, Ohio Criminal Defense Attorney Ron Frey for a free consultation at (440) 537-0299.