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


Case Update

Although only three cases from last week show up on the Ohio Supreme Court website, the Gang of Seven was a bit busier than that, handing down over a dozen decisions.  None were of any monumental significance:  there were a couple of disciplinary cases, and two on the unauthorized practice of law (one involving an accounting firm which prepared corporate charters, and another on a lawyer who flunked the bar exam but got a job with a law firm by dummying up a bar registration number and certificate). 

There were also several cases, like this one, rejecting habeas relief for sentencings that had become final before State v. Foster.  Of more practical impact is IBEW v. Vaughn Industries, in which the court held that when you ask for attorney fees in a complaint, you can wait until after judgment is entered on your main claim to file for them.

In Washington, before going on Winter Recess until January 7th, the Supreme Court granted cert in a case involving the question of whether damages for emotional distress are subject to income tax.  The DC Circuit had ruled on the case twice, first holding that the money wasn't subject to income tax, then holding it was subject to excise tax.  Figure that one out.

On to the courts of appeals...

Civil.  1st District reverses judgment against company which had attempted to repair blocked sewer pipe, good discussion of res ipsa loquitur... 8th District holds that expiration of civil protective order does not render appeal from it moot, because of its collateral consequences... Extensive discussion of requirements for class action in this 10th District decision affirming denial of certification in suit for violation of Federal law prohibiting sending unsolicited faxes... In suit for retaliatory discharge for filing workers comp claim, 9th District says that employee need not actually file claim, but must take some steps toward doing so...

Criminal.  8th District reverses denial of motion to suppress where pat-down was based on defendant looking "startled" when police car drove up over curb and onto sidewalk in front of him... 2nd District says that defendant wanting to testify as to one charge but not the other not sufficient basis for severance of the charges; also holds that no-contest plea does not preserve right to appeal trial court's denial of motion to disclose informant...

Finally, Adam Freedman, who writes the Legal Lingo column for the New York Law Journal Magazine, has a piece in yesterday's New York Times about the semantical arguments in District of Columbia v. Heller, the 2nd Amendment case the Supreme Court will be deciding this term.  Amici on both sides have filed briefs claiming that the positioning of the three commas in the Amendment reveal its true meaning, one way or the other.  Freedman doesn't buy into that, arguing that "the best way to make sense of the Second Amendment is to take away all the commas," which, he confesses, "means that only outlaws will have commas."


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