Followups
I wanted to use today to follow up on some previous notes. The other day I mentioned State v. Palmer in my discussion of recent trends in speedy trial decisions. In Palmer, the state had taken 79 days to respond to a defendant's motion for bill of particulars, and despite previous decisions holding that the filing of such a motion tolled the running of speedy trial time, the Palmer court held that this wasn't reasonable, and thus counted it against the 270 days. (Actually, 90 days in this instance, since the defendant was in prison.)
Palmer was notable for another reason, though: the state had filed a request for discovery, and argued that the time was tolled until the defendant responded to it. The court didn't buy that, and the 8th District rejected a similar argument a couple of years ago in State v. Borrero.
Be forewarned, though: the Supreme Court has allowed an appeal from Palmer on the question of
"Whether a defendant's failure to timely respond to the State's request for reciprocal discovery is a period of delay occasioned by the 'neglect' or 'improper act' of the defendant that tolls the speedy trial time pursuant to RC 2945.72(D) even in the absence of a Crim.R. 16 demand for discovery."
I wouldn't want to handicap this one. On the one hand, the Supreme Court's speedy trial decisions have almost invariably run against the defendant and in favor of liberally applying tolling provisions. On the other hand, since Rule 16 doesn't specify any time period for the defendant's response (or for the prosecution's for that matter), deciding what is a "failure to timely respond" opens up a can of worms. If the defendant hasn't responded -- as, let's face it, a lot of us don't -- that's one thing; it's pretty hard to argue that you responded "timely" if you didn't respond at all. But what if the defendant files his response a day or two before trial? What part of that period isn't "timely", and should be counted against the defendant?
The other thing I wanted to follow up on is a post I did about three months back on marijuana law enforcement, in which I noted the disturbing tendency to prosecute people for trafficking in marijuana if they happened to have more than a few small baggies of the stuff on them. The prosecution claim is that this is the way dealers sell marijuana; as numerous defense lawyers have pointed out, that means it's also the way users buy marijuana, and inferring trafficking from possession of a small number of baggies doesn't make much sense.
A number of judges have come to the same conclusion, and Judge Stuart Friedman of the Cuyahoga County Common Pleas Court wrote an opinion in one such case. You can find it here. It obviously is not binding precedent on the other judges, and the opinion makes clear that it's a fact-specific situation. Had there been other indicia of trafficking, such as the defendant waving down cars or approaching people and engaging in hand-to-hand transactions, the result might have been different. But it's an excellent opinion to use to establish that trafficking can't be inferred merely from possession of small numbers of baggies.
You'll notice that I've reworked the links on the right. I've cut down on some of the Ohio court stuff; my guess is that the next person who uses the link for the 6th District will be the first. I've added some links to other blogs. Appellate Law and Practice is what it says; I've limited it to the decisions of the US 6th Circuit, but you can find just about anything there. The Legal Theory Blog is just that; discussions of law on a more abstract level. (Such as a recent piece on the alarming trend of disposing cases by way of summary judgment.) When that makes your head hurt, you can go over to Anonymous Lawyer, a humorous blog by a fictional hiring partner at a fictional large law firm. (One of his recent posts bemoaned the death of Steve Irwin, the crocodile hunter, and the effect this might have the partner's ability to stage a Snakes at the Firm day.) And then there's Inside Opinions, which basically is a blog about legal blogs. You can find some interesting stuff there, too, like this recent piece on the use of song lyrics in judicial opinions. It notes that Bob Dylan is the most frequently cited songwriter, and that
one Dylan lyric, "You don't need a weatherman to know which way the wind blows," has virtually become boilerplate in California appellate decisions discussing the need for expert testimony.
And for those who are more modern in their music tastes, the author notes
the increasing tendency of courts to cite hip-hop lyrics.... As an example, [the author] offers a 2005 decision in which the 7th U.S. Circuit Court of Appeals was compelled to explain the difference between a "hoe" and a "ho." In so doing, it referenced the lyrics of rapper Ludacris, "You doin' ho activities with ho tendencies."
Word.
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