Communications Office - 2006 Oral Argument SummariesTuesday, June 20, 2006 State v. Johnson, Case no. 2004-1163
National City Bank v. Wilkins, Case nos. 2005-1562 - 2005-1566 Akron Bar Assn. v. Holder, Case no. 2006-0395 Cuyahoga County Bar Assn. v. Maybaum, Case no. 2006-0461 Death Penalty State v. Johnson, Case no. 2004-1163
Marvin Johnson of Cambridge appeals his convictions and death sentence for the August 2003 kidnapping and aggravated murder of 13-year-old Daniel Bailey and the kidnapping, rape and aggravated robbery of Lisa Bailey, Johnson's former girlfriend and the mother of the murder victim. According to trial testimony, Johnson became depressed and used crack cocaine heavily after Lisa Bailey broke off a multi-year relationship with him. On Aug. 15, 2003, Lisa returned to her home after working an overnight shift as a nurse and heard a shower running upstairs, when she investigated, expecting to find her son, she encountered Johnson leaving the bathroom holding a large kitchen knife. Johnson confronted Lisa at knifepoint and told her that her son was being held by others at another location, but would be released unharmed later that morning if she had sex with him and gave him $1,000. After coercing her to perform oral sex, Johnson accompanied Lisa to her bank, where she cashed a check for $1,000 at a drive-though window and gave the bank envelope containing the cash to Johnson. He then left, promising to call her in a couple of hours and tell her where to find her son. When she returned home, Bailey searched the house and found Daniel's body tied up and hidden under a pile of old clothing in the basement. Medical examiners testified that Daniel had been killed by several blows to the head with a heavy object, possibly a two-by-four piece of lumber. They indicated that the victim was struck while he was seated or lying down, and was still alive when he was bound and dragged to the basement. During pretrial proceedings, Johnson argued with his court-appointed attorneys and attempted to have them replaced. The trial judge denied that request. He was represented by his appointed counsel during jury selection, but insisted on acting as his own attorney during most of the guilt phase of his trial, including the closing statement. Johnson was found guilty of aggravated murder, kidnapping, rape and aggravated robbery, and sentenced to death. Attorneys for Johnson have raised 23 allegations of legal and procedural error during his trial as grounds for the Supreme Court to reverse his convictions and/or reduce his sentence. These include claims that:
The state responds that the trial judge later allowed Johnson to state his reasons for wanting to dismiss his attorneys, and acted within his discretion when he delayed and later denied Johnson's motion to replace his lawyers in light of Johnson's stated objections and the facts and circumstances of the case.
The state asserts that the judge had discretion to expedite the jury selection process by directing counsel not to repeat questions that prospective jurors had already answered in writing and informing jury prospects they were not required to respond to such questions. Prosecutors also say the court followed established precedents in allowing jurors who favor the death penalty to serve when those jurors also affirmed their willingness to follow the court's instructions with regard to sentencing, and to apply the law impartially according to the evidence presented at trial.
Prosecutors respond that the prosecutor's opening statements about Daniel and brief questioning of his mother about his habits were relevant to her testimony about the circumstances of the crime, and in any case were not extensive enough to be prejudicial to Johnson. They point out that, unlike shackles which are plainly visible to jurors and suggest that a defendant is a dangerous criminal, the ankle-fitted “stun” device Johnson was required to wear during his trial was concealed by his trousers and thus did not present any issues of potential jury prejudice that would require a pretrial hearing. Contacts Dennis L. Sipe, 740.373.3219, for Marvin Johnson. Is Increase In Value of Bank-Owned Life Insurance Exempt from State Franchise Tax as ‘Appreciation?’ National City Bank v. Wilkins, Case nos. 2005-1562 - 2005-1566 ISSUE: Are year-to-year increases in the surrender value of whole life insurance policies owned by a bank “income” subject to Ohio's annual business franchise tax, or “appreciation” of an asset that is not subject to taxation until the policy is cashed in or the gain in value is otherwise extracted from the policy? BACKGROUND: This case asks the Supreme Court to review administrative rulings in which the state tax commissioner and Board of Tax Appeals (BTA) have both held that year-to-year increases in the cash surrender value of whole life insurance policies owned by National City Bank (NCB) of Cleveland are subject to the state's annual business franchise tax. NCB urges the Court to reverse the commissioner's finding. They argue that, until and unless the bank collects a death benefit, takes out a policy loan or surrenders the life insurance policies for their cash value, the annual increases in the cash value of those policies remains “unrealized” gains and therefore “appreciation” of an asset that is specifically exempted from Ohio's corporate franchise tax. Attorneys for the tax commissioner urge the Court to affirm the BTA's holding. They say the board was correct in noting that, because increases in the cash surrender value of whole life insurance policies are actually credited to the policy each year and are thereafter available for the bank to borrow, or to borrow against at its discretion, those increases are not unrealized “appreciation” subject to tax deferral but are rather “realized” gains that the bank should be required to include in its annual calculation of corporate franchise tax liability. Contacts Robert C. Maier, 614.466.5967, for the State Tax Commissioner. Attorney DisciplineAkron Bar Assn. v. Holder, Case no. 2006-0395 The Board of Commissioners on Grievances & Discipline has recommended that Akron attorney William P. Holder be permanently disbarred for multiple acts of professional misconduct in his representation of an Akron couple, Harry and Jeanne Cummings, including misuse of client funds, engaging in conflicts of interest, charging an excessive fee and making false statements to both his clients and disciplinary authorities. Following default proceedings made necessary because Holder did not respond to repeated communications from the Akron Bar Association or cooperate with the disciplinary board's investigation of the Cummings' complaint, the board issued a report finding that Holder violated multiple provisions of the Code of Professional Responsibility over a four-year period during which he represented the Cummingses in a bankruptcy and several other legal matters. Among other offenses, the board found that Holder abused his professional relationship with the Cummingses by intimidating Mr. Cummings into resigning his authority over a trust and inducing Mrs. Cummings to first sign over to Holder a $47,500 disability award check, and later to sign a written acknowledgment falsely stating that Holder had paid her $25,000 from those proceeds when he had not done so. In light of these violations and prior disciplinary infractions for which Holder is currently under an indefinite suspension from practice, the board has recommended that the Supreme Court permanently revoke his law license. Holder has filed extensive objections to the board's findings and recommended sanction, alleging among other claims that he did not receive proper service of the Cummings complaint and that attorneys prosecuting the multiple disciplinary complaints lodged against him since 2000 have been pursuing a personal vendetta. The Court will hear oral argument on those objections and the Akron Bar Association's responses to them. Contacts Thomas Adgate, 330.535.8771, for William P. Holder. Attorney DisciplineCuyahoga County Bar Assn. v. Maybaum, Case no. 2006-0461 Attorney Scott D. Maybaum of Solon has filed objections to a recommendation by the Board of Commissioners on Grievances & Discipline that the Supreme Court suspend his law license for mishandling client funds on deposit in his trust account. Based on a client grievance filed with the Cuyahoga County Bar Association, the disciplinary board found that Maybaum violated several provisions of the Code of Professional Responsibility when, after settling a personal injury case on behalf of client Diane Cannon-Barron, Maybaum made personal use of $6,976 Barron had left on deposit with him to resolve unpaid medical bills. The bills remained unpaid for more than four years, until Barron was alerted to the situation when several of the creditors contacted her threatening collection action. When Barron contacted Maybaum, he acknowledged that he had not followed through on his promise to try to negotiate reductions in the bills and pay the negotiated amounts from the funds she left on deposit with him. In an August 2003 letter to Barron, Maybaum said he was sending letters to the creditors acknowledging his responsibility for the delay and attempting to negotiate reductions. No such letters were sent. In July 2004, after Barron had received many additional creditor inquiries about the unpaid bills and filed a grievance against Maybaum, he resolved the medical claims and forwarded more than $3,000 to her as a residual of the $6,967 she had originally left in his care. The three-member panel of board members that heard the complaint found that Maybaum's actions violated the state disciplinary rules that prohibit neglect of an entrusted legal matter; conduct involving dishonesty, fraud, deceit or misrepresentation; conduct adversely reflecting on an attorney's fitness to practice; failure to maintain accurate records of client funds and failure to promptly pay funds that are payable to a client. The panel noted that Maybaum had previously been disciplined for failing to segregate client funds from his own in a separate trust account, and heard testimony by two psychiatrists that Maybaum had been in treatment for bipolar disorder but often failed to take prescribed medication and was not in control of his condition. Based on those and other findings, the panel recommended that Maybaum receive a two-year license suspension with 18 months of that term stayed, and that as a condition of Maybaum's reinstatement he must be certified as in compliance with prescribed medical treatment and able to return to the competent and ethical practice of law. The full board of commissioners adopted the panel's findings of fact, but recommended to the Supreme Court that Maybaum be indefinitely suspended from practice with similar conditions of reinstatement. Maybaum has filed objections to some of the board's findings and to its recommended sanction. His attorneys point out that Barron did not suffer any financial damage as a result of his actions and in fact ultimately realized a gain of several thousand dollars. They assert that Maybaum has expressed remorse for his misconduct and cooperated fully with disciplinary authorities, and they ask the Court to limit any sanction to a stayed suspension. They urge the Court to consider his psychiatric condition as a mitigating factor that contributed to his impaired judgment in using client funds improperly and failing to promptly correct that error. Attorneys for the Cuyahoga County Bar Association urge the Court to adopt the disciplinary board's recommendation of an indefinite suspension with reinstatement conditioned on sustained compliance with medical treatment. They note that Maybaum's earlier disciplinary violation involved a very similar misuse of client monies for personal purposes, and point to numerous points in the hearing transcript in which Maybaum failed to acknowledge the wrongfulness or accept personal responsibility for his actions, and appeared not to recognize the threat of harm that his failure to comply with medical treatment presents to his clients and the public. Contacts William T. Doyle, 216.363.6025, for Scott D. Maybaum. These summaries are prepared by the Office of Public Information solely to help news reporters determine if they want to cover the arguments. The summaries are not part of the case record and are not considered by the Court at any point during its deliberations. Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record. |