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Case Update

The Robed Seven in Columbus were busy last week; not only did they hear oral argument on 15 cases, as I mentioned on Friday, they handed down a number of decisions as well.  One of them allows anesthesiologist assistants to perform spinals and epidurals under "appropriate" supervision.  I think my own health insurance plan -- which isn't a very good one; the only in-network medical facility is Bob & Emma's Hospital and Souvenir Emporium in Lodi -- is even broader in what it specifically permits:  I had minor shoulder surgery last year, which was assisted by a couple of guys from the motor pool.  Another decision concerned drug-sniffing dogs, which are certainly not man's best friend; I'll have a post on that later this week.  On to the courts of appeals...

Civil.  6th District reverses case where court gave tax exemption for child support to husband where he was earning $45,000 and wife was earning under $10,000, says lower court should have evaluated the earned income credit for in allocating the exemption... Good case from the 10th District on when firing can constitute voluntary abandonment of employment under workers comp... Here's a new one:  plaintiff files negligence case three weeks after statute of limitations expires, claims tardiness in filing is excused because she was incompetent due to "unsound mind"; 12th District didn't buy it... 9th District holds that where defendant made motion to vacate under Rule 60(B)(1) and (3), court couldn't grant it under 60(B)(5)...

Criminal.  5th District upholds drug possession conviction where state tested only sample of drugs... 12th District reverses delinquency finding on grounds that juvenile's waiver of counsel was inadequate... 9th District rejects entrapment defense where there were no fewer than 150 calls between defendant and snitch, most initiated by defendant... 4th District holds that where defendant attempted to call co-defendants as witnesses, and trial court's advising co-defendants of their right against self-incrimination led them to change their minds about testifying, court's admonition did not rise to level of violating defendant's right to call witnesses...

Let me see if I got this right.  In State v. Bartley, the 5th District confronts a situation where the pro se defendant in a midemeanor domestic violence case claims that his waiver of counsel wasn't valid.  It agrees that the court's colloquy with the defendant was insufficient -- it wasn't any different from the one the Supreme Court held invalid a month ago in State v. BrookeThe court further notes that, pursuant to Brooke, "once appellant challenges the validity of the waiver of counsel, the State must establish that a proper waiver of the right occurred."  The state contended that the right to counsel was fully explained in a videotape the defendant was shown prior to trial, but didn't include the videotape in the record.  So the court holds that because the videotape isn't there, the record is incomplete, and when the record is incomplete, it will presume regularity in the proceedings below, and affirms the defendant's conviction.

Did that make sense when they wrote it?

Speaking of not making sense, the defendant's second assignment of error in State v. Dietz was "IN VIOLATION OF DUE PROCESS, THE GUILTY VERDICTS ON THE BUGLERY AND ASSULT WERE ENTERED AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."  Problem No. 1 was the misspellings.  Problem No. 2 was that it was a drug case; there were no charges, let alone convictions, of burglary or assault.  Problem No. 3 was the court realized, and noted, that appellate counsel had lifted the assignment of error verbatim, misspellings and all, from another appeal she'd done in the same court just a month or so before.  At least that case involved a burglary and an assault, but Problem No. 4 was that the defendant there had been acquitted of the burglary.  There's really no excuse for that...

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