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What's Up in the 8th

There were twelve apostles.  There are twelve judges on the 8th District Court of Appeals.  Coincidence?  I'll let you decide.  Meantime, let's see what they did last week.

Do they still have shop in high school?  They did when I went there, and Reason #43 why I didn't like it was on display in the 8th District's decision in Bolling v. North Olmsted City SchoolsAfter reading that young Master Bolling "sustained multiple amputations to the fingers on his dominant hand while operating a jointer machine," I skipped over the rest of the facts, suppressing the urge to find out exactly what a jointer machine was, figuring that all I needed for an answer was "something upon which you can sustain multiple amputations to the fingers."  I was rewarded with a lengthy dissertation by the court on sovereign immunity.  I'd noted previously that the 8th's work on the subject was somewhat slipshod (here and here), which wound up getting them reversed in two cases by the Supreme Court back in June.  The court's analysis here is much better, and if you've got a case involving that in this county, Bolling's the decision to read.

Now this one seems pretty simple:  defendant is sentenced on a drug trafficking charge, and the judge orders the sentence to be served consecutively to one imposed in a federal case.  The defendant appeals, claiming that the plea was not given knowingly, intelligently, and voluntarily, because he didn't realize the judge was going to run the sentence consecutive to the federal one.  The court of appeals affirms.  Two years into his sentence, the defendant files a motion to vacate the plea, arguing that the plea was not given knowingly, intelligently, and voluntarily, because he didn't realize the judge was going to run the sentence consecutive to the federal one.  If you've said, "Alex, I'll take legal doctrines for $400," and your answer is, "What is res judicata?" you don't have to bother reading the opinion in State v. Hall

State v. Stubblefield has a little more meat on it.  The cops get a call about a burglary and felonious assault involving an armed suspect, and quickly find a perp matching that description hiding under a car.  Alas, no gun.  Good police work results in backtracking to the scene of the crime, and the gun is discovered on the roof of a garage.  The defendant admits that the gun is his, but claims that it's not operable -- a requirement for conviction -- because it's missing a firing pin.  The officer testifies, though, that a firing pin could easily be inserted in the gun, and that a firing pin could be kept in a person's pocket.  All of this enough for the court to find that the gun could have been rendered "readily" operable. 

That conclusion might have been easier to swallow if there'd been a shred of evidence that the defendant had a firing pin on him.  The court gives as an example of a gun not being operable one which has "excessive rusting":  "While the rust might be cleaned in such a way  as to render the gun operable, the removal of the rust might be so time-consuming that the gun could not be said to be capable of being 'readily' operable."  Seems that removing rust doesn't present much more of an obstacle to making the weapon capable of being fired than running across town to a gun shop in an effort to locate a firing pin.  In the context of gun prosecutions, where the focus is on the harm that a gun can do, "readily" should mean "right now."  There wasn't any evidence that Stubblefield's possession of the gun posed any greater danger than his possession of a pipe wrench.  Bad decision.

For those of you who do divorce work, you might want to take a look at Keating v. Keating, where the court has some important stuff to say about what date a trial judge should use in determining the "end of the marriage" for purposes of calculating assets.  Of even more import is how the court should calculate child support when the combined income of the parties exceeds $150,000.  The court says that the appropriate standard is whatever support would keep the children at the standard of living they had during the marriage, but reaffirms its holding that in such cases the court can pretty much come up with whatever figure it decides.  There's some other stuff in Keating, like a discussion of the Monroe Doctrine, which deals with how a down payment on a house factors into splitting that asset (rather than, as you might have supposed, to how America would react to a French invasion of Costa Rica).  Lots of good legal issues in that case, mainly succeeding in convincing me that I'd rather eat broken glass than go back to handling divorce cases.

Finally, on the home front here, the prosecutor's office has instituted a new policy:  it will not engage in any plea-bargaining on a file in which it hasn't provided discovery.  Read that again.  No, it's not refusing to plea-bargain when the defense hasn't provided discovery; it's refusing to do so when the prosecutor hasn't provided discovery.  I ran into a lawyer yesterday who filed for discovery on July 3.  Still hasn't gotten it.  Wanted to get rid of the case at the pretrial yesterday morning:  please, please get the file marked.  Prosecutor says no, we haven't responded to your discovery yet, so we can't talk to you about a plea.  So there.

I've talked to several judges about this.  They're very pleased.  Oh yes.


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