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Case Update

Down in DC, the Supreme Court's concluded oral arguments for the term.  Between now and the third week of June, expect a raft of decisions, probably the biggest being Heller v. DC, the gun rights case.

Down in Columbus, there was another sentencing decision.  The defendant in State v. Warren had committed the rape of a child in 1988, when he was 15, but wasn't prosecuted until 2004.  The Supreme Court upheld a sentence of life imprisonment, ruling that there was no due process violation in imposing the mandatory sentence, and refusing to give mitigating consideration to his age at the time he committed the offense.  I'll have more on sentencing later this week.

In Turner v. Ohio Bell, the plaintiff's decedent had been a passenger in a car which ran off the road and struck a utility pole.  The plaintiff sued the utility company, and the 8th District had reversed a grant of summary judgment, holding that the reasonableness of the pole placement was a question for the jury.  Not so, say the Supremes:  if the utility company has obtained the necessary permits to install the pole, and if it doesn't interfere with the "usual and ordinary course of travel," the company's not liable.  So unless they put one in the middle of the road, that's that with that. 

The Court also holds that a decedent's beneficiaries aren't in privity with the decedent's attorney, and thus can't sue him for malpractice in screwing up a deed so that it increased the estate taxes.

On to the courts of appeals...

Criminal.  2nd District says that defendant charged with aggravated vehicular assault may have point that adult victims of crash may have "facilitated offense" by not wearing seatbelts, thereby creating mitigating factor for sentencing purposes, but child victim didn't, so 5-year sentence is upheld... Hospital security officers not state actors for 4th Amendment purposes, says 2nd District... 8th District says that standard for review of sentence is not abuse of discretion, but whether sentence contrary to law; upholds trial court's decision to have drivers license suspension for drug violation not take effect until defendant released from prison... Trial court granted defendant judicial release, violated him, ran sentence consecutive to others handed down by other courts since his original sentencing, 3rd District reverses...

Civil.  2nd District upholds trial court's exclusion of four experts who proposed to testify that child's mental retardation was result of his mother's exposure to workplace chemicals while she was pregnant; excellent discussion of standards for expert testimony... 6th District upholds rule that patron of bar can't sue bar for accident off-premises resulting from patron's own intoxication; plaintiff's decedent in this case had whopping .35 BA level... 10th District reminds everyone that the granting of a motion in limine isn't a final appealable order... 8th District affirms award of $400,000 for malicious prosecution against City of Cleveland; police detective had admitted to defendants' attorney that he knew they had nothing to do with incident, but proceeded with indictment when they refused to give statement against third party.  What's worse, city got hit up for $144,000 in prejudgment interest; city offered nothing before trial, and the two plaintiffs would've taken $20,000 each... 9th District says that municipalities no longer liable for injuries caused by failing to keep sidewalks in repair after legislature's amendment of sovereign immunity statute in 2003... 12th District reverses summary judgment in legal malpractice case, says absence of written fee agreement not dispositive of whether attorney-client relationship existed...

If you want the job done right, do it yourself.  In State v. Akeyinde, the 2nd District had granted defendant's pro se motion to reopen his appeal, finding that appellate counsel was ineffective for failing to argue that trial counsel was ineffective for failing to object to certain hearsay testimony.  It appointed new appellate counsel, who filed a brief which also failed to argue the hearsay question.  The defendant moved to strike the brief and be allowed to proceed pro se.  The court granted the motion, considered the defendant's brief, and reversed his conviction.

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