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Case Update

The Supremes have a busy week, disbarring three attorneys and suspending seven, and handing down a couple of decisions on top of that.  In Froehlich v. Ohio Dep't of Mental Health, we learn that the statute of limitations for a malicious prosecution action starts to run when the grand jury no-bills a case, even if the prosecutor is contemplating bringing additional charges.  In State v. Consilio, the Court held that a prior version of RC 2901.07, which requires persons convicted of felonies and certain misdemeanors to submit DNA samples, couldn't be applied retroactively.  The statute's been amended to allow that, but there's a decent 4th Amendment argument which could be made here, and which I'll get to talking about sometime.

I might also talk sometime about the issue raised in the other decision last week, Webb v. McCarty, which dealt with UMI coverage.  Given the murky nature of that topic, "sometime" in this context should be interpreted as synonymous with "when I'm forced at gunpoint to discuss it."

So let's see what happened in the courts of appeals...

Several search cases of note.  In a true man-bites-dog story, the 6th District not only finds that a search warrant affidavit was deficient, but that it was so deficient that the state couldn't rely on the good faith exception to save it; if you've got a case involving a warrant search, this is the one to read.  If you've got an inventory search issue, you'll want to take a look at this 10th District decision, which holds that police didn't have the right to impound the car in the first place.  In the procedural area, the 6th District agrees that counts of receiving stolen property merge if the different items are received at the same time from the same source, but says that didn't happen here.  The 8th District vacates a conviction for sexual battery in a date-rape case, holding that there was insufficient evidence that defendant knew the alleged victim was impaired.

In the civil arena, there's a questionable 2-1 decision from the 10th District which held that a municipal court lacks subject matter jurisdiction to hear a case if the parties didn't reside in the municipality and the case didn't arise there.  I think the dissent has the better argument that whether the action arose "in the territory" of the court is a matter of venue and personal jurisdiction.  This is important, though, because unlike the latter two, subject matter jurisdiction can't be waived, and can be raised on the first time on appeal.  And there's an interesting 12th District decision which holds that hearsay, presented either through deposition or affidavit, can't be considered by a court in ruling on a summary judgment motion.  The 12th District also rejects a taxpayer suit against Miami University which claimed that the University's health insurance plan, which offered benefits to "domestic partners," violated the gay marriage amendment passed in 2004, on the grounds that the plaintiffs lacked standing.

Speaking of the 12th District, there's something funky going on there.  Since the beginning of the year, the 12th has rendered decisions in 129 criminal cases.  In 42 of them, appellate counsel has filed an Anders brief, claiming he couldn't find any non-frivolous issues on appeal.  The other 11 Ohio districts have heard 1864 criminal appeals; in only 71 of those has appellate counsel filed an Anders brief.  That works out to almost exactly a third of the cases in the 12th District, versus less than 4% in the other districts.  Either the trial judges in the 12th are extraordinarily competent, or appellate counsel there aren't doing their job.

And finally,

Shouldn't this be an affirmative defense?  From the 6th District's decision last week in State v. Williams:

Police arrested appellant for drug possession. After being read his Miranda rights, appellant made a statement, saying that he was selling cocaine to pay his attorney.

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