The ABJ praises the Ohio Supreme Court over their recent ruling requiring police to obtain a warrant before they search someone’s cell phone.

Justice Judith Lanzinger put the challenge in four words: ”Cell phones defy categorization.” Yet the courts must plunge into the task, anyway, seeking to draw clear distinctions and critical boundaries involving police searches and seizures in criminal investigations. On Tuesday, Lanzinger, writing for a 4-3 majority of the Ohio Supreme Court, delivered a careful argument, and the majority landed where it belonged. It upheld the Fourth Amendment principle protecting an individual’s reasonable expectation of privacy.

The decision stemmed from a drug case. A woman taken to the hospital after a drug overdose agreed during questioning by police officers to call her drug dealer. Police officers soon arrested the dealer, and in doing so, confiscated his cell phone, eventually recovering call records and phone numbers. A jury convicted the dealer for trafficking in cocaine and other charges. He received 12 years in prison.

The defendant appealed his conviction, arguing that the trial court erred in failing to suppress the evidence found on the cell phone. The court of appeals upheld the conviction. A 2-1 majority sided with the trial court, reaffirming the view that a cell phone is essentially a closed container and thus subject to search during a lawful arrest.

Statistics show fewer courts are assigning people with death penalty sentences across the country.

U.S. courts in 2009 have issued the fewest death sentences in any year since the resumption of executions in the United States in 1976, according to a report released today, Dec. 18, by the Death Penalty Information Center in Washington, D.C.

Ohio has added only one new convict to death row, a new low except for 1979-82, when state legislators were rewriting an old death penalty law struck down by the U.S. Supreme Court.

The one new death sentence in Ohio this year compares with 25 in 1977, 21 in 1985 and 17 each in 1983, 1995 and 1996, according to statistics compiled by the center. Nationwide, there were 106 new death sentences in 2009 as of Wednesday, down from 284 in 1999.

Residents in Toledo continue to question officials over why a 62 year old mentally ill women was shot and killed by a police officer earlier this week.

The shooting death of a 62-year-old woman armed with a 10-inch scissors by a Toledo police officer this week sparked calls for full disclosure of the incident and greater care when dealing with the mentally ill.

Linda Hicks was shot at least three times by Officer Diane Chandler, who responded with her partner to the adult family home at 1321 Fernwood Ave. when the caretaker called 911.

Police Chief Mike Navarre said Ms. Hicks didn’t comply with the officers’ commands and tried to attack Officer Chandler with the scissors.

A five-person police firearms review board will review the shooting after the initial investigation, which includes a complete forensics analysis, the chief said.

Sixteen religious leaders from different churches gathered yesterday in front of the home where Ms. Hicks was killed to demand answers.

“We need some serious answers of what it looks like every time something goes down, someone is shot and killed, so our concern is to try and help the police make it better, that these things will not continue to happen,” said the Rev. Theodis Horton of Shiloh Baptist Church. “When you see a 62-year-old woman taken out by police, it is really sad and it hurts our community.”

Columbus school officials are considering adding sexual orientation to it’s non-discrimination policy for staff as well as students.

Columbus schools are moving to prohibit discrimination against any student or employee based on sexual orientation, according to a policy change that will get a first reading at a Board of Education meeting today.

In listing the types of discrimination that won’t be tolerated in education programs, activities and employment practices, the ordinance would add prejudice based on sexual orientation to the current race, creed, sex, age, color, national origin and disability.

[…]

“Sexual orientation is not included yet in state or federal nondiscrimination laws, which is why it’s so important to have them added to local policies,” said Carrie Davis, an attorney for the American Civil Liberties Union of Ohio.

Attempts to codify protections for sexual orientation sometimes have been controversial.

Troubling news out of Toledo and police try and piece together how a 62 year old mentally ill woman was shot and killed after they were called to her residence.

When one of the mentally ill people who Tanya Murphy cares for in her home on Fernwood Avenue became agitated and violent, she called 911 and immediately asked for a crisis team.

Minutes later, 62-year-old Linda Hicks, one of two residents staying in the state-licensed Marria’s Adult Family Home was dead - shot in the head Monday night by one of the two police officers dispatched to the central Toledo address because she was threatening people with scissors.

Police Chief Mike Navarre identified the officer who shot Ms. Hicks as Diane Chandler, 33, who has been on the force since 2006. The second officer at the scene was Rebecca Kenney, 34, who has been on the force since 2003.

Ms. Murphy had difficulty discussing the incident yesterday and would only say: “She came at me with the scissors.”

When placing her call to 911, Ms. Murphy specifically asked for “crisis police.”

Yesterday, she said the outcome should have been different.

The Ohio Supreme Court issued a wonderful ruling yesterday affirming that police officers must have a warrant before they search a person’s cell phone.

Police can’t examine the contents of a suspect’s cell phone without a warrant, a divided Ohio Supreme Court ruled yesterday in a first-of-its-kind case over privacy and technology.

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The American Civil Liberties Union, which filed a friend-of-the-court brief supporting Smith’s position, contends that as cell phones become more like personal computers, the data they hold should be protected from unreasonable intrusions.

“There is so much information that we keep in our cell phones,” ACLU of Ohio lawyer Carrie Davis said yesterday. “It is not a simple telephone. Because of that, people have an expectation that the information they keep will be private.”

Lanzinger’s majority opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer and Maureen O’Connor.

The Blade discusses recent revelations about the Transportations Security Administration’s practices in the wake of the 9/11 attacks and War on Terror.

AFTER 19 hijackers commandeered four airliners with box cutters and crashed three of them into the World Trade Center and the Pentagon in 2001, improving security at U.S. airports became a top government priority. The problem: It sometimes seems as if a modern-day version of the Keystone Kops was put in charge of the operation.

Further questions about the competence at the federal Transportation Security Administration have been raised by reports that the agency posted closely guarded secrets about passenger screening practices online for the entire world to peruse.

An old version of a 93-page TSA operating manual put on the Internet, inadvertently, officials say, spells out procedures and technical details for screening operations, metal detectors, and explosive detection systems at U.S. airports.

The New York Times weighs in on Ohio’s resumed executions and points out that no amount of “tinkering” with the protocols will offset the unavoidable fact that the system is simply broken.

This is what passes for progress in the application of the death penalty: Kenneth Biros, a convicted murderer, was put to death in Ohio last week with one drug, instead of the more common three-drug cocktail. It took executioners 30 minutes to find a vein for the needle, compared with the two hours spent hunting for a vein on the last prisoner Ohio tried to kill, Romell Broom. Technicians tried about 18 times to get the needle into Mr. Broom’s arms and legs before they gave up trying to kill him. Mr. Biros was jabbed only a few times in each arm.

Ohio adopted the single-drug formula after the botched execution. It may well be an improvement over the three-drug cocktail, or may not. (Death penalty advocates who hailed it as less painful have no way, obviously, of knowing that.) But the execution only reinforced that any form of capital punishment is legally suspect and morally wrong.

Cleveland area attorney Terry Gilbert breaks down the shooting by police officers of teenager Brandon McCloud in 2005.

Detective Phillip Habeeb waited outside the house for the right moment to make the early-morning entry, anxious to confront the 15-year-old boy he suspected of robbing a pizza deliveryman hours earlier. He and his partner, John Kraynik, were understandably upset, having arrested the same kid for a similar robbery six months earlier. They thought he’d learned his lesson during their last interrogation session, but apparently sterner and more aggressive measures were required. Armed with a search warrant, they waited for signs of movement in the house.

With time to burn, Habeeb called a radio dispatcher on his cell phone and chatted with her about the plan. The flirtatious dispatcher mused that if the detective was out of breath chasing the kid, “you know he’s running.” When the dispatcher suggested that he should “just shoot to kill,” Habeeb replied, “Absolutely.”

A few minutes later, Brandon McCloud lay dead in a pool of blood, shot 10 times in his own bedroom.

The PD issues a call for Cuyahoga County Prosecutor Bill Mason to make good on his promise of reform to the criminal justice system after troubling racial disparities in sentencing were uncovered.

Minorities call it the “Just Us” system.

And it is. And it has been that way for far too long in Cuyahoga County.

In 2002, the Rev. Marvin McMickle — after completing a four-month term as a Cuyahoga County grand jury foreman — complained that the criminal justice system “had an apartheid feel to it.”

Last year, a two-part series in The Plain Dealer documented that white defendants were much more likely to have felony drug charges reduced to misdemeanors, or to receive treatment in lieu of conviction, than black defendants charged with the same crime.

The findings, based on a six-month review of hundreds of the lowest-level felony drug cases resolved between 2004 and 2007, cried out for immediate action to end the system of injustice.

Unfortunately, Cuyahoga County Prosecutor Bill Mason dragged his feet — his promised study only now materializing 14 months later with proposals for a team of Cleveland State University and University of Cincinnati researchers to study inequities at every stage of the process.

The ABJ is saying what the ACLU has been saying for a long time: we must take action now to reform our criminal justice system.

Changes in sentencing laws to ease overcrowding in Ohio prisons were stripped from the governor’s budget proposal early this year by House Democrats. The idea then stalled in the Senate after Republicans advanced a stand-alone bill. Fearful of being called ‘’soft on crime,” legislators chose to ignore rising prison populations, strained facilities and increased costs. Fortunately, the state’s continuing budget crisis has prompted another look.

In the Senate, majority Republicans have proposed including the sentencing changes in the latest budget fix, the state facing an $851 million deficit. In the House, Speaker Armond Budish is balking at that, but pledging the support of his Democratic caucus for separate legislation. Rep. Tyrone Yates, a Cincinnati Democrat, has introduced a sentencing reform bill similar to the version introduced by Sen. Bill Seitz, a Cincinnati Republican.

Yates senses the political moment may be right for bipartisan action, Republicans and Democrats ready to ”jump off the cliff at the same time,” as he put it. If so, it would be a step in the right direction, not only saving taxpayers money but also reducing the likelihood of repeat offenses by increasing opportunities for treatment and education.

Critics and supporters debate a new initiative by Columbus city officials to install security cameras in several neighborhoods.

As Columbus moves forward with plans to monitor neighborhoods with security cameras, civil libertarians warn that the costs — both to privacy and pocketbooks — might outweigh the benefits.

[…]

But with few exceptions, studies of camera surveillance in the United States and England haven’t found a statistically significant impact on crime rates. Criminals simply move to nearby areas without cameras, experts caution.

“All it really does is give people the illusion of safety,” said Gary Daniels, who heads the American Civil Liberties Union’s regional office in Columbus.

The ACLU strongly opposed the state’s decision to continue executions and pointed out the enduring problems that plague the flawed system.

I’ve heard the expression, “It’s like rearranging the chairs on the deck of the Titanic” many times to describe someone’s ambivalence towards a monumental problem, but it has never rung as true as it does today.

Less than three months after the unprecedented failed execution of Romell Broom, in which officials had to abandon the procedure because they could not locate a viable vein, the state has reopened its death chamber. At 11 a.m. on December 8, 2009, Kenneth Biros was executed using an untested, experimental one-drug protocol devised by the state in the weeks following Broom’s botched execution. The state publicly unveiled the procedure in late November, giving them only a few weeks to implement it and train the execution team on the new protocols.

Proponents of the death penalty hailed the new protocols as a major advancement towards error-free executions. The proclamations were eerily reminiscent of proponents’ original reaction when lethal injection was first implemented decades ago. However, if we have learned anything from the botched executions that have taken place since then, it is that there is simply no humane way to kill a person.

Ohio has still not addressed the underlying problems with its lethal injection procedures nor the overall death penalty system. After three botched executions in as many years, it is painfully clear the state’s execution team is simply not qualified to handle problems when the procedure goes awry. Those who carry out the execution only have the bare minimum of medical training, as no doctor or nurse will serve on the team. Now that the state has implemented an experimental procedure, the chances are even greater that unexpected complications will arise that the execution team will not be equipped to resolve.

Lost in the debate around lethal injection procedures has been the state’s failure to resolve the core issues of fairness that have been raised in studies by the League of Women Voters and Associated Press (PDF), and American Bar Association. Each of these studies have found that defendants are more likely to receive the death penalty based on their race, the race of their victim, the county where the crime was committed, and their socioeconomic class. In addition, the studies have raised serious concerns about Ohio capital punishment defendants’ access to adequate legal services, overall due process rights, lack of guidelines for the state to maintain biological evidence, and a host of other issues.

The net result has been the creation of a perfect storm in Ohio where any number of terrible tragedies may occur if officials continue to blindly support the death penalty. The stakes are simply too high for us to wait until the next botched execution or even the death of an innocent person to address the fundamental flaws in our death penalty system.

The execution of Kenneth Biros on December 8, 2009 did not occur without incident–officials struggled to find a viable vein and had to try several times.

Ohio’s new single-drug execution protocol worked as planned Tuesday, putting Kenneth Biros to death in about 10 minutes.

Prison staff who volunteered to participate in the execution process were able to find one viable vein to hold an intravenous shunt, which was used to administer the lethal injection.

They worked for about 30 minutes, attempting to establish IV sites in both arms but eventually gave up on the right and focused on a vein in his left arm.

The state did not have to turn to its backup plan, which would have required a direct injection of two drugs directly into Biros’ muscle.

Scene follows up on disparities in drug prosecutions in Cuyahoga County and what is being done to curb unequal enforcement.

Local black leaders say the perception persists: At each turn, the criminal justice system crashes down harder on blacks than it does whites. Drug arrests occur at a greater rate on the city’s predominantly black East Side; Ohio prisons maintain a disproportionately black population; even the lines to get into the downtown Cleveland justice center seem overwhelmingly black, one leader says.

Efforts to understand and address apparent disparities in the system have come in waves, with varying degrees of success. Last year, academic and media reports about racial inequities in Cuyahoga County prosecutions brought the latest round of outrage and the latest calls for reform (”Disparate Times,” Scene, July 30, 2008). At the center of the reheated debate was county prosecutor Bill Mason, who vehemently defended his office after a October ‘08 Plain Dealer series highlighted favorable sentences and treatment programs for white defendants in low-level drug cases — the same types of cases that typically end in jail sentences and felony records for black defendants.

Mason put himself at the helm of the reform effort — one that is currently in a holding pattern. More than a year has passed since Mason and other county and city officials met with leaders in the black community to discuss inequities in drug-case sentencing, with no reports of progress.

The ABJ discusses recent moves by Akron and Summit County to prohibit discrimination based on sexual orientation or gender identity.

The Akron City Council hardly approved radical legislation when it said yes on Monday evening to an ordinance outlawing discrimination based on sexual orientation and gender identity. If anything, the council did not go far enough, adding unnecessary exemptions that essentially reflect the view that discrimination should be permitted in certain circumstances, albeit narrowly framed.

The Summit County Council got the task right, approving its proposal without hedging, stating firmly that discrimination based on sexual orientation and gender identity will not be permitted. It followed the course taken by most of the nation’s Fortune 500 companies, by more than 20 states and 11 four-year universities in Ohio, plus 17 cities in the state.

There is a strong economic argument for the legislation. Bar such discrimination, and a community, large or small, opens the door to becoming more diverse and vibrant. It draws on a larger pool of talent and reaps the rewards. In that way, the Ohio Senate would do well to concur with similar legislation that cleared the House in September.

A great letter to the editor written by a local resident about a student’s right to not participate in the Pledge of Allegiance.

I knew if I waited long enough someone would write a letter denigrating the young girl who refused to take part in the Pledge of Allegiance at her school. The writer said “American, love it or leave it” as if that were the only answer to the situation.

I for one am glad the ACLU stepped in and stopped the school officials from abusing this young woman’s civil rights. People seem to forget that we have a document called the Constitution that contains a thing called the Bill of Rights. The First Amendment guarantees the freedom of speech this girl demonstrated by not participating in something in which she did not believe. Whether or not the writer of the letter was offended by her actions is irrelevant. The Constitution gave her the right to do what she did.

Maybe what confused the writer was the word freedom. Let me explain. In order to live in a truly free society we must all defend the rights of even one individual to exercise his or her right to do something we totally disagree with, within the limits of the law. If we can do that, then our country is truly a free society. But if we can’t defend someone’s right to have freedom of expression regardless of how much we disagree, then freedom doesn’t exist in our country at all.

“America, love it or leave it?” Maybe we should look at it a different way. Perhaps “America, love it and make it better” would be a better catch phrase.

TOM HALL

Lisbon

A possible shift is occuring in how officials address criminal justice issues.

In the next several months, the Supreme Court will decide at least a half-dozen cases about the rights of people accused of crimes involving drugs, sex and corruption. Civil liberties groups and associations of defense lawyers have lined up on the side of the accused.

But so have conservative, libertarian and business groups. Their briefs and public statements are signs of an emerging consensus on the right that the criminal justice system is an aspect of big government that must be contained.

The development represents a sharp break with tough-on-crime policies associated with the Republican Party since the Nixon administration.

Not to be outdone, Akron and Summit County also passed non-discrimination ordinances that protect residents on the basis of sexual orientation and gender identity.

Discrimination in Akron and Summit County based on sexual orientation or gender identity is now illegal — sort of.

Both Akron and Summit County councils passed ordinances Monday that added these to their protected classes.

But Akron City Council — after nearly an hourlong debate — carved out exemptions for contractors with the city who either serve minors or are religion-based.

City Council approved the amended ordinance 10-2, with councilmen Mike Freeman and Jim Hurley, both of whom voiced religious concerns, as the ”no” votes.

Cleveland City Council updated its anti-discrimination ordinance last night by adding gender identity to the list of protected classes.

Cleveland’s anti-discrimination laws will grow to protect transgender citizens under an ordinance passed Monday by City Council.

Existing city codes prohibit businesses from denying jobs or housing to citizens for reasons of age, race, religion or sexual orientation.

View full sizeJoe SantiagoActivists in the lesbian, gay, bisexual and transgender community had lobbied for more than a year to include gender identity and expression.

The unanimous vote was the latest step the council has taken to demonstrate a more tolerant atmosphere — one that helped the city land the 2014 Gay Games, an international competition.