Friday, May 29, 2009


At a bench trial in Struthers Municipal Court, Mahoning County, James Ludt was found guilty of two counts of aggravated menacing. Five minutes after issuing that verdict (which was six weeks after the trial), the judge recused himself from that case and any companion cases. On January 27, 2009, The Mahoning County Court of Appeals, Seventh District, reversed and vacated the convictions and remanded for a new trial. Although noting that it had no jurisdiction to review the judge's decisions regarding recusal or disqualification of the judge, the court reversed because the timing of verdict and recusal created "the appearance of unfairness and the due process violation." State v. Ludt, Mahoning App. No. 07 MA 107, 2009-Ohio-416.

Good for Ludt, and good for the Seventh District.

But, as the prosecutors ask their witnesses, "And then what happened?"

You might think the state asked the Ohio Supreme Court to hear the case. You'd be wrong. You might think it was that new trial that the Seventh ordered. You'd be wrong about that, too. What happened next is that Ludt filed a pro se application to reopen his appeal because he'd received ineffective assistance of appellate counsel.

Let's think about that for a minute.

I once won a new trial on direct appeal in the Sixth District for a client on death row. (This was back in the old days when those cases when to the court of appeals before they went to the Supreme Court of Ohio.) The State asked the folks in Columbus to hear the case, and the Public Defender filed an application to reopen. Good for the PD. If the Supremes had agreed to hear the case (they didn't), and if they'd reversed, it might have been too late to pursue ineffectiveness on appeal issues. But Ludt's wasn't a death penalty case, and the state hadn't asked the supremes to hear the case.

He just wanted to . . . . Well, I don't know what he wanted. The Seventh District's on-line docket doesn't permit me to read the filing, and the opinion doesn't say. All I know is what they decided (which is also what the Sixth District decided in my case, by the way): When you win the appeal and get all the relief the client wanted, you weren't ineffective. State v. Ludt, Mahoning App. No. 07 MA 107, 2009-Ohio-2214.

But you already knew that.

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