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Case Update - Supreme Court version

I was on the road this weekend, so didn't have time to put together the normal case update; I'll do a two-week version next Monday.  The Supreme Court did hand down three fairly significant decisions, so I'll talk about them today.

The first is a civil case, Celmer v. Rogers, in which the Court upheld the 11th District's decision to permit a doctor to testify as an expert in a malpractice case, despite the fact that he didn't meet Evid. Rule 601(D)'s requirement that he devote one-half of his professional time to the clinical practice of medicine:  he'd retired about six months before the trial.

This case has virtually no precedential value.  First, the facts were bizarre:  the trial had been postponed twice by the defendants for a total of about five months, and there'd been a 13-month stay when one of the insurers went bankrupt.  Those facts are part of the syllabus, so unless you've got a case where that sort of thing happened, Celmer doesn't mean anything to you.  Second, the holding was that the trial court had discretion to admit the testimony, so presumably it had discretion to refuse it, too.  The one good thing about the case is that it plainly states that "the purpose of Evid.R. 601(D) is to prohibit a physician who makes his living as a professional witness from testifying on the liability of physicians who devote their professional time to the treatment of patients," so if you've got an expert who isn't a "professional witness," you can argue that you're entitled to more leeway under the rule.  Whether you get it is another story, and if you don't, it's unlikely that the higher courts will bail you out.

The second case was State v. Carswell, which presented the issue of whether Ohio's Gay Marriage Amendment in 2004 impacted the domestic violence statute.  Carswell, who'd been convicted of beating up the woman he was living with, had argued that the portion of the statute which protected "a person living as a spouse" conflicted with the Amendment, which banned the creation or recognition of "a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage."  To the suprise of no one except the two (out of eleven) Ohio appellate districts who'd bought into this argument, the Supreme Court affirmed Carswell's conviction, finding no conflict.  Justice Lanziger, the lone dissenter, makes a good logical and syntactical argument to the contrary, and frankly, it would have been a poetic justice if the net result of the Gay Marriage ban had been to declare Open Season on Girlfriends in Ohio, but that just wasn't going to happen.

The last case was State v. Tooley, which presented the issue of whether, and how, the US Supreme Court's decision in Ashcroft v. Free Speech Coalition back in 2002 affected Ohio's child pornography statutes.  In Ashcroft, the Supreme Court had held that virtual child pornography was protected by the First Amendment.  Virtual pornography, for those less technologically inclined, is pornography by computer manipulation of images, and for that reason doesn't require the use of actual children.  (There is software which can "regress" a picture of an adult so that it can wind up looking like a child.)  The Court had held that simple possession of pornography wasn't criminal, but later created an exception for child pornography, basing the exception on the idea that banning possession was necessary to ban production, because production resulted in harm to children.  But if no children are actually used, then there's no basis for a ban.

The Court in Ashcroft had struck down the Federal ban on child pornography because it was overbroad:  it didn't make a distinction between virtual and actual pornography.  The Ohio Supreme Court in Tooley rescued the Ohio statute from the same fate by holding that it did in fact make such a distinction, and required the state to prove that a child was actually used.  This isn't as daunting a task as it might appear:  the statute creates a "permissive inference" that

a person in the material or performance involved is a minor if the material or performance, through its title, text, visual representation, or otherwise, represents or depicts the person as a minor.

The Court found that the stuff on Tooley's computer did create that inference -- the file names were things like "illegal 128.jpg" and "08yo_innocent_girl_blowjob_(0.05).mpg." -- and that Tooley hadn't presented sufficient evidence that he thought he was downloading virtual kiddie porn instead of the real thing.  The Court, perhaps inadvertently, left a big escape hatch for future cases, noting that

If Tooley had established that a substantial amount of virtual pornography exists, his argument that the mens rea needed for conviction should be more than reckless might be more persuasive.

I would imagine that future child porn cases will feature expert defense testimony on that very point.

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