Nothing out of Washington this past week, but you’ll want to make space on your calendar for later today, when the Supreme Court is scheduled to hear argument in a case involving the authority of Indian tribal courts.  Moving away from my typically smarmy comments for a moment, the argument in Kennedy v. Louisiana, scheduled for Wednesday, might be a bit more momentous for the people who typically read this blog:  It involves the constitutionality of imposing the death penalty for child rape. 

Speaking of the death penalty, we had a rare reversal of one here in Ohio this past week.  In State v. White, both prosecution and defense psychologists had concluded that the defendant was mentally retarded, and therefore exempt from the death penalty under State v. Lott.  The trial judge disregarded them based on anecdotal evidence that, among other things, the defendant could drive, cook eggs, and play “Mortal Kombat.”  The 9th District affirmed, but the Supreme Court reversed, saying they should have listened to the docs.  The opinion which included the memorable phrase, “It is not clear, however, what relevance White’s video-game skills have to mental retardation.”

In other words, you can tell your kids that the Ohio Supreme Court has concluded that just because they’re good at video games doesn’t mean they’re not retarded.

In other cases, the Supreme Court held in State v. Colon that the failure to include the mens rea requirement in an indictment was a “structural error,” which means it can be raised on appeal even if it wasn’t objected to in the lower court.  The biggie for the week, though, was State v. Cabrales, which substantially modified the Rance test for allied offenses.  I’ll have a full post on that tomorrow.

On to the courts of appeals…

Criminal.  2nd District reaffirms rule that acquittal of firearm specification but conviction of underlying offense requiring proof that gun was used is not inconsistent… 8th District comes to same result in case where defendant tried murder and felonious assault counts to jury and weapons under disability count to court… If court excludes officer’s testimony because of discovery violation, it can’t allow same testimony as impeachment, 10th District rules… Where state dismissed DUI when defendant pled no contest to driving with prohibited blood/alcohol level, and defendant successfully appeals on basis that test was taken after required time, defendant not entitled to discharge; case is reversed to point where evidence should have been suppressed, and state can reopen DUI case, says 2nd District… Flavor du jour in 5th District seems to be contention that more than minimum sentence is an “unnecessary burden on state resources”; cases even include one in which defendant is given community control sanctions, but argues that 11-month sentence if he violates them is undue burden.  5th doesn’t buy it here, here, and here…

Civil.  8th District says that affidavit of merit of nurse in malpractice case against nursing home was insufficient, says Rule 601(D) requires affidavit be by someone licensed to practice medicine… 5th District says adjudication of counterclaim in small claims court unfair where plaintiff was not served with it until day after hearing… 10th District reverses grant of summary judgment against mortgagee on grounds that mortgagee was not registered to do business in state, says that dismissal under 12(B)(1) was improper, since standing and capacity to sue don’t go to subject matter jurisdiction, and dismissal under 12(B)(6) was improper because trial court had to look to matters outside of complaint…

Well, that certainly wasn’t “good sex.”  From the 10th District’s decision in Weimerskirch v. Coakley, in which the appellant, an assistant manager of a bowling alley, sued his employer because of an assault on him by Coakley, a fellow employee:

On the evening of June 6, 2004, appellant walked in on Coakley and his girlfriend as they  were getting dressed, after the couple had apparently just finished having sexual relations. For whatever reason, Coakley told appellant that he quit, and began to collect his personal effects from the work area. Amidst taking his belongings from the workplace to his vehicle, parked behind the building, Coakley spontaneously grabbed a two-by-four, ran towards appellant, and struck him on the head with the board.

The trial court’s grant of summary judgment, on the basis that the alley had no awareness of Coakley’s violent tendencies, was affirmed.