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Case Update

Nothing from the gang in Washington during the past week, but several cases of note from their counterparts in Columbus.  The big decision was State v. Siler, dealing with whether a child's statements to the police qualify as "testimonial" under Crawford v. Washington.  I'll have a post discussing that in detail tomorrow.  The Supreme Court also reaffirmed that failure to submit a medical affidavit with the complaint in a malpractice case can be cured by later amendment of the pleading, and ruled that a court can't modify a shared parenting agreement simply because it finds that the modification is in the best interests of the child -- it must also find that there has been a change in circumstances. 

Finally, it reversed the 8th District, which in turn had reversed  the grant of a new trial in a medical malpractice case; the Supreme Court found that the appellate court had used the wrong standard of review.  I'll touch on that in a little more detail on Wednesday.  (Interestingly, that case isn't mentioned on the Court's web site.)  On to the courts of appeals....

Civil.  The 8th District holds that the Clerk's office has absolute immunity in a suit for failing to record a certificate of judgment lien.  In another case, it holds that a party does not forfeit his right to submit an affidavit in support of a motion for summary judgment by invoking his 5th Amendment rights at a deposition; that case also contains an excellent discussion of when a mental disability tolls the statute of limitations.  The 9th District rules that before a judge can impute income for purposes of calculating child support, he must make an express finding that the party is voluntarily unemployed or underemployed.  The 6th District holds that a court can order temporary support in a divorce action, even where the parties are still living together.

Criminal.  The 8th District vacates a sentence because the trial judge merely told the defendant at the sentencing hearing he would be placed on post-release controls, without specifying the time period, even though the journal entry reflected the correct term....  Defense counsel tells the jury in opening statement that the defendant will testify, he doesn't; is the prosecutor's reference to that in closing an improper comment on the defendant's right not to testify?  No, says the 9th District....  The 10th District holds that while inconsistent verdicts on different counts don't require reversal, inconsistent verdicts on the same count do; the trial court had instructed the jury on aggravated menacing and the lesser charge of menacing, and the jury had returned a verdict of guilty on the former and not guilty on the latter, apparently on the misunderstanding that it had to render verdicts on both....  The 12th District affirms a rare dismissal for violation of speedy trial.... 2nd District vacates additional 8-year sentence for major drug offender, holding that court can't impose add-on for MDO and RVO specs because section allowing that was excised by Foster; 11th and 6th Districts have ruled to the contrary.

Thanks for the mammaries.  In Bowling Green v. Bourne, the 6th District rejects a constitutional challenge to a city ordinance prohibiting women from baring their breasts in public.

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