Courts Update
The most notable decision out of the Ohio Supreme Court this week was a disciplinary case involving a Cleveland lawyer who'd put money he'd gotten from his client for fees in his trust account, then kept it there to shield it from his creditors. He was already under indefinite suspension (this incident occurred before that, but came to light after), so they gave him another indefinite suspension. Two justices dissented, arguing that the second indefinite suspension should have been consecutive to the first, rather than concurrent with it. I have a feeling that's not going to make a lot of difference.... On to the courts of appeals:
Civil. 1st District reverses summary judgment for hotel, holds that floor mat which lifted up because of wind when door opened not open and obvious hazard; reviews "floor mat" cases... 8th District affirms judgment for spoliation of evidence where store employee taped over video of plaintiff's arrest for supposedly shoplifting... In prisoner defamation lawsuit, 12th District holds that allegation of racism is not slander per se but slander per quod, thus requiring pleading and proof of special damages... 7th District upholds trial court's ruling that records concerning plaintiff's consultation with attorney re a medical malpractice claim were discoverable over claim of privilege, and that they showed plaintiff aware of her claim more than one year before she filed suit...
Criminal. 1st District holds that Ohio Department of Health director's certification of the breathalyzer test solution not "testimonial" under Crawford... 8th District rules that observation of hand-to-hand exchange sufficient to establish not merely reasonable suspicion for stop, but probable cause for arrest... 5th District finds insufficient basis in record for trial court allowing defendant to represent himself... 4th District reverses conviction because trial court instructed jury on self-defense without telling them that defendant's burden was only preponderance of the evidence...
This week's Captain of the Dummy Team is the defendant in State v. Dickey, who unsuccessfully sought to suppress the contents of a phone conversation between her and her boyfriend, in which the two discussed a drug deal, leading to Dickey's arrest for drug trafficking. The circumstances surrounding the interception of the conversation weren't exactly Orwellian: the boyfriend happened to be an inmate of the county jail at the time. Dickey's argument was that while the boyfriend might not have had a reasonable expectation of privacy when he made the call, she did, an argument which might have fared better had it not been for this:
At the beginning of every inmate-originated telephone call from the jail, a recorded voice informs the parties that the calls are subject to monitoring or recording. In fact, during at least one of the telephone conversations between Wymer and Dickey, the two can be heard laughing over the fact that when Dickey tells the recorded voice to "shut up," the recorded voice complies.
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