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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

With two of the seven judges out campaigning for re-election, not much going on in Columbus.  Down in Washington, the Supremes heard a case yesterday involving federal pre-emption, specifically, whether FDA approval of a drug bars state court common-law negligence claims.  For those of you who make big bucks suing drug companies -- a subset of the legal profession which, alas, does not include me -- you can read all about it here

Today, the Court's hearing oral argument in FCC v. Fox, which reviews the FCC's declaration that the broadcast of certain terms -- "fuck" and "shit" -- can always be penalized, despite the "fleeting expletives" policy followed by the FCC for the previous quarter century.  I had a post on the case here, and I'll have a post on the argument later this week.

On to the courts of appeals:

Criminal.  Prosecutor presents agg menacing case in bench trial, at which point defendant says he didn't realize case was going to be tried that day, wants witness subpoenaed; this was apparently first time he mentioned a witness, and 2nd District says that lawyer wasn't ineffective and court wasn't wrong in not granting continuance...  While trial court violated RC 2943.031 by not advising pleading defendant of deportation consequences, 11-year delay in asking to vacate guilty plea, 10 of those coming after deportation proceedings commenced, was unreasonable, says 8th District... 8th District also affirms prior law that defendant must request findings of fact in order to trigger court's obligation to give them after motion to suppress hearing... "Eyeballing" cop as he drove past parked cars in high crime area sufficient to give reasonable suspicion for stop of one as it drove off, at least according to 9th District... 5th District says that stepping on crack pipe and breaking it constitutes tampering with evidence...

Civil.  8th District holds trial court erred in quashing subpoena for claim file from motorist's insurer, says it was relevant for determining good faith in motion for prejudgment interest... Expert testimony not required to prove damages for loss of ability to perform usual functions, 3rd District rules... Trial court erred in failing to examine husband's claim that he lacked ability to pay support order, especially his contention that wife's actions in not turning over computer and other documents necessary for his business hindered his ability, 10th District rules... Where employment agreement required employee to file suit for wrongful termination within six months, "termination" also included employee's resignation, says 5th District... 3rd District says father's moving closer to where children live doesn't constitute change of circumstances for custody purposes...

Pottymouth.  The big question for today's argument in the FCC case described above is how far the attorneys -- and justices, for that matter -- can go in using the actual language that's at issue.  ScotusBlog gives us the lowdown, noting that if it's left to the lawyers, it's a done deal:

"Unless the Court tells me not to," [Fox lawyer Carter G.] Phillips says, "I would not shy away from using those words.  It is hard to argue parts of he case saying 'F-word' and 'S-word.' "  Because he is arguing second, rather than first, he would not start the argument that way, he said, "but in answering questions it would be quite natural just to use the actual words.  As Judge [Pierre] Leval said in his [Second Circuit Court] dissent, in the context of this case, it is not inappropriate to use those words in open court.  But if the Court would prefer that I not, then I would obviously defer to the Justices."


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