Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


From the Mailbag: Supreme Court arguments

A faithful reader -- and their number is legion -- took me to task in an email yesterday for not mentioning that one of the cases up for oral argument this week in the Ohio Supreme Court was Hyle v. Porter. Mea culpa, as we say in the law biz. The case does indeed have serious ramifications in the unending quest to impose ever-more-restrictive limitations on where sex offenders can reside, which may reach its apogee if the City of Newton, New Jersey, goes through with its plan to take such restrictions to their logical conclusion: banning sex offenders from living anywhere in the city.


At issue in Hyle is the constitutionality of the applying Ohio's restriction -- a registered sex offender can't live within 1,000 feet of a school -- to offenders who committed their crimes before the restrictions were enacted. Hyle bought his home in 1991, and lived there with his wife and two children. He'd been convicted of misdemeanor sexual imposition in 1995, but then caught a sexual battery case in 1997, and was designated a sexual offender. The residency restriction was enacted in 2003, and in 2005, the county prosecutor filed for an injunction demanding that Hyle be removed from his home, because it was -- gasp! -- 983 feet from a school.

Hyle complained that retroactive application of the statute to him was barred, but the 1st District didn't buy it.  The decision was in conflict with one handed down by the 2nd District -- on the very same day, no less -- and so everybody trundled off to the Supreme Court to let them sort it all out.

I'm rather jaundiced about the whole thing; for me, the argument has a how-many-angels-can-fit-onto-the-head-of-a-pin quality to it, given that the empirical evidence to date shows that not only do residency laws have no effect on the number of child sex abuse cases committed, but they may actually be counterproductive, as I pointed out a while back.  It turns out, though, that numerous organizations had filed amicus briefs on behalf of Hyle, making the same argument about the ineffectiveness of residency restrictions.  Some of those organizations were who'd you'd expect, like the Ohio Association of Criminal Defense Lawyers, and the ACLU.  But some of them weren't.  Several of the justices were clearly impressed by the fact that organizations like the Iowa State Sheriffs & Deputies Association and the Jacob Wetterling Foundation were arguing against the restrictions.

That may not mean much.  I'd figure on the 1st District's view prevailing, in keeping with Bensing's First Rule of Handicapping Ohio Supreme Court Decisions: Always take the State and give the points.  Still, Lanzinger and O'Connor have previously indicated that they're not willing to buy into the theory that these laws are "remedial," instead of punitive, and thus can't be applied retroactively.  Pfeiffer and Moyer didn't look too pleased, either, and asked some probing questions of the state's attorney.

There was a bittersweet moment in the argument, when the state's attorney indicated that whether the laws were effective or not was a question best left to the legislature.  Justice Lundberg Stratton responded, "But they're elected, they're looking at votes."  To which I thought:  and if you guys weren't, this might come out differently.  

The aforementioned correspondent also chided me for incorrectly noting that the oral argument on the big PUCO case was Tuesday, not Wednesday, of this week. I checked, and he was right. I gave some brief thought to viewing the video of that argument, but then decided that there wasn't enough alcohol or illicit drugs in the world -- or combination thereof -- that could get me through it.

What I wound up watching wasn't much better, though: the case of Borkowski v. Abood. Borkowski's landlord had sued to evict him, and on the day of the hearing, Borkowski filed a notice of removal of the case to Federal court. (Don't ask.) The housing judge had accepted the filing, but went ahead with the hearing anyway. Borkowski sued the judge, claiming that he lacked jurisdiction to hear the case once the notice of removal was filed. The trial court threw it out on grounds of judicial immunity, but the 6th District reversed, holding that Borkowski was right: the judge had no jurisdiction, and thus immunity didn't apply.

Borkowski's got as much chance of winning his case in the Supreme Court as Paris Hilton does of getting a Nobel Prize in physics. The worst part of it was that Borkowski was acting pro se. He used his entire fifteen minutes to monotonally read a motion that he'd filed that very morning with the Court, asking for another oral argument -- for a purpose known only to him and his god -- and recounting in excruciating detail his litany of woe. The camera kept glued to him the entire time, which was unfortunate; I'd hoped it would pan over the justices, perhaps catching one or more of them trying to open a vein with a ballpoint pen in an attempt to cut short their agony.

Talk about must-see TV.


Recent Entries

  • May 25, 2017
    "Clarifying" post-release controls
    A look at the Supreme Court's decision in State v. Grimes
  • May 23, 2017
    What's Up in the 8th
    Allied offenses, and two search cases
  • May 23, 2017
    What's Up in the 8th
    Allied offenses, and two search cases
  • May 22, 2017
    Case Update
    Is SCOTUS looking for a forfeiture case? Plus, appellate decisions on expungement and restitution, plain error, and what a judge has to tell a defendant about sex registration
  • May 19, 2017
    What's Up in the 8th - Part II
    Decisions on lineups and prior calculation and design, and two out of eight (eight!) pro se defendants come up winners,
  • May 17, 2017
    What's Up in the 8th - Part I
    Taking a first look at some of the 8th District's decisions over the past two weeks
  • May 16, 2017
    Case Update
    Stock tips, Federal sentencing reform goes dormant, schoolbag searches, and the retroactivity of State v. Hand
  • May 8, 2017
    Case Update
    Death in Arkansas, a worrisome disciplinary decision, and appellate cases on speedy trial, arson registration, use of prior testimony, and the futility of post-conviction relief
  • May 2, 2017
    What's Up in the 8th
    Nothing but sex
  • May 1, 2017
    Case Update
    SCOTUS closes out oral argument for the Term, the Ohio Supreme Court has seven of them this week, and we report on a decision where you'll probably want to play Paul Simon's "Still Crazy After All These Years" in the background while you read about it