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What's Up in the 8th

Brutal week for criminal defendants by the lake this week:  just three weeks after batting .333 -- eight reversals out of twenty-four cases -- they go oh-for-eight.  That mirrors the results statewide:  other than a reversal in a juvenile delinquency case, all of the criminal cases in the state last week resulted in affirmances.  Anyway, the highlights -- er, lowlights -- from the 8th:

Another quixotic attempt to invoke the speedy trial statute in State v. Barb.  The good part:  the state had taken two months to respond to discovery, and the court holds that this was "probably not reasonable," says the time was tolled for only thirty days of that.  The bad part:  doesn't matter; trial still took place within the allowed time.

Two companion cases, State v. Sowell and State v. Harris, involve a question of destruction of evidence:  the two defendants fled from police through a Hyatt hotel, and were captured on the hotel's video.  The question was whether they had guns, but the video wasn't helpful on that point, because the hotel had taped over it.  The defendants argued that the police were at fault, because they knew of the existence of the video but didn't preserve it.  There's a good discussion in the cases about preservation of potentially exculpatory evidence, but the court concludes in both that the tapes, even if they'd been preserved, wouldn't have been helpful, and affirms the convictions.

In State v. Hernandez, the cops bust a drug dealer and take him back to his apartment, then search the place based on his girlfriend's consent, and the court correctly concludes that the girlfriend had authority to consent.  Something to keep in mind, though; a couple of years ago, in Georgia v. Randolph, the Supreme Court held that the wife couldn't give valid consent to the search of the marital home, when the husband was also there and denied consent to search.  Here, Hernandez didn't deny consent; in fact, after telling the police that he lived there, he reversed field and claimed that he was only delivering diapers for his girlfriend's baby.  Bad career move.

Last, a civil case.  In O'Connor-Junke v. Junke, the wife's a passenger in a car being driven by husband, and is injured in an accident caused by husband's negligence.  Family decides to resolve the resultant marital discord by suing Allstate under the uninsured motorist provision of their policy.  The policy contains a provision excluding coverage for injuries caused by a family member, but the wife claims this makes her husband an "uninsured motorist."  Unfortunately, the policy contains a definition of what an uninsured vehicle is not -- specifically, an automobile insured under the liability section.  Wife argues that this violates the statute on UMI coverage, but the argument suffers greatly from the fact that it principally relies upon the dissenting opinions in two court of appeals cases.  Another chapter in the book, When Good Things Happen to Bad People:  summary judgment for Allstate affirmed.

Cases I never finished reading.  The second paragraph of the court's decision in State v. Johnson:

On January 2, 2007, a Cuyahoga County Grand Jury returned a one-count indictment against Johnson stemming out of his wanton abuse of the toilet in the observation cell in which he was located in the Second District City of Cleveland Jail on December 7, 2006.

There was that time back in college when we went to a Taco Bell after a night of drinking that you could say I wantonly abused a toilet...

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