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January 2009 Archives

Consent-once-removed, and other fictions

Yesterday we talked about the Supreme Court's decision in Arizona v. Evans, involving a police officer's right to frisk passengers in a stopped vehicle.  The week before, the Supreme Court handed down Pearson v. Callahan which, despite it being a civil case, also has important ramifications for 4th Amendment law.

Continue reading "Consent-once-removed, and other fictions" »

Not as bad as it could have been

My legions of faithful readers are by now familiar with my dystopian view of where the Supreme Court is headed on 4th Amendment issues.  Despite the Court's unanimous decision in favor of the government on a 4th Amendment issue the other day in Arizona v. Johnson, the most appropriate response is probably a sigh of relief.

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Take me out to the ballgame

On June 11, 2002, Don Krieger, Clifton Oliver, and Andrew Mendez went to an Indians game in Cleveland.  The Tribe beat the Philadelphia Phillies handily 5-1, with Bartolo Colon pitching eight strong innings, and Milton Bradley providing the the big blow with a 3-run homer in the 3rd.

That's not why Krieger and Oliver will always remember that game, though.

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What's Up in the 8th

After a couple of sluggish post-holiday sessions, the 8th issued twenty decisions last week.  One we'll talk about one in more detail tomorrow.  The highs and lows for the other nineteen:

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Case Update

Not much out of DC, and nothing out of Columbus last week.  Roberts et al. came down with one decision, Pearson v. Callahan, concerning qualified immunity for police officers in suits for 4th Amendment violations.  Pearson is interesting for both on its effects on search and seizure law, especially the "consent-once-removed" doctrine, and its treatment of stare decisis.  Don't know what the "consent-once-removed" doctrine is?  Neither did I.  Check back here on Thursday and I'll increase your store of knowledge. 

Only two other notable cases out of Washington.  One was Spears v. US, in which the trial court had determined that the using the Guidelines' 100:1 ratio between crack and powder cocaine resulted in an excessive sentence.  The 8th Circuit ruled that the trial court couldn't base a lower sentence on policy disagreements with the Sentencing Commission.  The Supreme Court did what's called a GVR -- certiorari granted, decision vacated, case remanded -- holding that under its decision in Kimbrough (discussed here and here), the trial court was within its rights to do what it did.  The other notable event was the last rites conferred upon the Child Online Protection Act, a law passed a decade ago intended to combat children's access to Internet pornography.  The case had been up to the Supreme Court twice before; this time the Court simply denied certiorari, letting stand the 3rd Circuit's decision affirming the trial court's decision that the law violated the 1st Amendment.

As I said, nothing from Columbus, so let's go on to the courts of appeals, where criminal cases predominate...

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Raising the white flag?

Not two weeks after I get done with my "Year in Review -- Allied Offenses" post, and here we have another oral argument in the Ohio Supreme Court on allied offenses, another lawyer standing in front of the justices and telling them that "the citizens of Ohio are not well served" by Ohio's jurisprudence on the subject, and urging them to overrule State v. Rance. 

Except this time, it was the prosecutor making those arguments.

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Shutting up, and pro bono work

This will probably not come as a surprise to many of my regular readers, but I sometimes have a problem keeping my mouth shut.

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What's Up in the 8th

Getting a criminal case reversed on weight or insufficiency of the evidence is a truly Quixotic task, but last week featured not one, but two decisions from the 8th District doing precisely that.

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Case Update

In addition to the handing down two big decisions in Herring v. US and Oregon v. Ice, which we talked about the last couple days, the US Supreme Court's granted cert in five cases, including one on student privacy, where a thirteen-year-old girl was strip-searched on the basis of an unproven tip from another statement, and an Ohio death penalty case.  Kent Scheidegger over at Crime and Consequences has a good, if slightly biased, post about the latter case.  Speaking of capital punishment, last year the death penalty was imposed in Ohio in only three cases, the lowest number since the penalty was reinstated in 1981.  On the flip side of that coin, Ohio was the only non-Southern state to execute anyone last year.

Closer to home, nothing from the gang down in Columbus, who are apparently girding their loins, individually or collectively, for the oral argument this week in Lima v. State and State v. Akron, involving the question of whether the statute forbidding municipalities from requiring employees to live within the city limits violates the Home Rule amendment. 

The highlights from the courts of appeals, in which civil, and especially domestic, cases predominate...

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Putting Foster on Ice

Three years ago, in State v. Foster, the Ohio Supreme Court decided that the Ohio sentencing statutes pertaining to consecutive sentencing were unconstitutional because they required judicial fact-finding before such sentences could be imposed.  On Wednesday, in Oregon v. Ice, the US Supreme Court held that there was nothing wrong with requiring judicial fact-finding for imposition of consecutive sentences.  What now?

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R.I.P., exclusionary rule?

Wednesday  saw the US Supreme Court hand down the 9th and 10th opinions  of the term.  Herring v. US is either the application of prior law to a narrow, fact-specific situation, or the harbinger of a good faith exception to the exclusionary rule for warrantless searches.  Oregon v. Ice could have some major ramifications for Ohio sentencing law.  We'll talk about Herring today, then bump the Case Update and 8th District stuff back a day next week to discuss Ice on Monday

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Supreme Court News

Today's regular post is right below this.  There were a couple of major US Supreme Court decisions yesterday, one on sentencing and one on search and seizure.  I'll have a post tomorrow on the latter, which could be one of the biggest cases on the application of the exclusionary rule to come down the pike in quite a while.

See you tomorrow.

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Federal power, and cleaning up

I've commented before on how there are several areas of Ohio law desperately in need of a clean-up by the Ohio Supreme Court:  sentencing, allied offenses, stare decisis, to name a few.  There are some areas of constitutional law which could use a fresh look by the US Supreme Court, too.   One of them is the use of the Commerce Clause in criminal cases.  That was highlighted last week by the 4th Circuit's decision in US v. Comstock.

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Year in Review - Sentencing

2008 may have been the year that the Ohio Supreme Court realized that sentencing had become completely screwed up since its decision two years before in State v. Foster.   Sadly, 2008 was not the year that anything much was done about it.

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What's Up in the 8th

State v. Colon, the Supreme Court's decision last year on when an indictment is defective because it fails to include a mens rea element (discussed here), rears its ugly head in two more 8th District decisions this week.  The first is State v. Lawrence, or State v. Ray; the defendant is identified as "Ray Lawrence, aka Lawrence Ray."  Instead of being charged with lack of imagination, Lawrence was indicted for aggravated vehicular assault.  He pled out, but claimed on appeal that the indictment was defective under Colon.  Doesn't matter, says the court, following other decisions which have held that a defendant waives any claims regarding defects in the indictment by pleading guilty.

Continue reading "What's Up in the 8th" »

Case Update

The gang in Washington gets back to work this week, with eight cases scheduled for oral argument, including six criminal cases.  The two most significant are Montejo v. Louisiana, which involves the question of interrogation after counsel has been appointed for a suspect, and Boyle v. US, which involves the issue of what proof is necessary to show an enterprise under the RICO anti-racketeering laws.  The last one is of special interest to those who practice Federal criminal law, because (a) just about every third Federal prosecution seems to be based on RICO nowadays, and (b) anything the Court could do to clarify the law on RICO, which is about as clear as chaos theory, would be welcome. 

Down in Columbus, several decisions, the most significant of which was Martin v. Design Const. Serv.  A question which often arises in "wet basement" and other property damage cases is the appropriate measure of damages:  is it the cost of repair, or the diminution of the value of the property?  The Martins had sued the builder of their house for screwing up the construction of the foundation, and gotten a verdict of $11,770, which was the reasonable cost of repair.  The 9th District had reversed, holding that the Martins had failed to show the difference in the value of their home with and without the defect, and that that was a necessary element of their damages.  The Supreme Court reverses, holding that cost of repair is the reasonable measure of damages, but either side can introduce evidence of the diminution of market value as a factor bearing on the reasonableness of the cost of repair.

A very light week in the courts of appeals; only 36 decisions.  The highlights:

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Dysfunction at the Junction, and other stuff

That the US 6th Circuit is given to internal squabbling isn't new; the "lack of collegiality" among the Circuit's 12 judges, presently 10 Republicans and 6 Democrats, was noted over five years ago in this newspaper article.  And the bitterly contested dispute over Secretary of State Jennifer Brunner's ruling on Ohio registration -- the court reversed her decision on a party-line vote, only to have the Supreme Court reinstate Brunner's holding -- resulted in everything short of an exchange of gunfire.

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Gone, Baby, Gone

Maybe 2009 will be a better year than 2008 for Portage County Municipal Judge John Plough.  Then again, 2007 wasn't any great shakes, either.  That's when Portage Common Pleas Administrative Judge Laurie Pittman filed a complaint against Plough with the Ohio Disciplinary Counsel, claiming that he was making "a mockery of justice."  That complaint -- which alleged that Plough intimidates defendants who appear pro se, keeps incomplete and inaccurate trial records, hands down inappropriate sentences, and abuses speedy trial rights -- is still pending.   The last few weeks might have provided some additional ammunition.

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Year in Review - Allied Offenses

The Ohio Supreme Court spent much of the past year attempting to extricate itself from the mess it created in its 1999 decision in State v. RanceBefore that decision, allied offense analysis under Ohio law followed pretty much of a common-sensical approach.  Although that analysis nominally required a two-step test -- first, comparing the elements of the two offenses, and second, determining if they were committed with a separate animus -- in reality the courts focused on the defendant's conduct:  if both offenses were the result of the same conduct and involved the same harm, then the defenses were deemed to be allied.

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8th District Roundup

Well, my worries proved unfounded.  A couple of weeks back, I recounted my latest foray into the 8th District, involving a claim of ineffective assistance of counsel because of a failure to file a motion to suppress the defendant's un-Mirandized statements.  A week after my oral argument, one of the judges on my panel wrote an opinion affirming a conviction in a similar case, holding that the attorney probably decided not to file a motion to suppress since he knew that police always advise defendants of their Miranda rights.  I mean, they always do that, don't they?

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New Year's Resolutions

BABY.001/ALLISON/FINALWelcome back.  As you can see, although I took time off from blogging, I didn't take time off from working on the blog.  I finally got around to updating the software I use for doing this, since it's gone through four revisions since I started back in May of 2006.  It makes doing posts a good bit easier, and allows me to do some things I couldn't do before.  I've also spruced up the site a bit, to make it a bit more pleasing to the eye. 

In addition to the cosmetic changes, I'm going to be making some substantive ones.  One of the reasons I started this was to provide a resource for solo and small firm practitioners, and it's actually turned out to be a fairly decent one; I've found myself coming across legal issues and thinking, "Hey, I did a post about that."  One of the things I'm going to be working on over the next couple of months is making that information more easily accessible.  There's some additional stuff in the About section on how to do that, and I'll have more on that later on.

I'm going to start off the week with the Case Update, which is the post right below this.  We'll do the 8th District Roundup tomorrow.  Over the next few  weeks, I'll be doing a "Year in Review" post summarizing the evolution over the past year in some area of law.   Wednesday's posts will be one of those, with the focus on allied offenses. 

Enjoy the New Year.

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Case Update

The gang down in DC really knows how to holiday; nothing's scheduled for this week, and nothing's happened in the past two save for Chief Justice Roberts' yearly report on the state of the Federal judiciary, in which he devotes a substantial amount of time to complaining about judicial salaries (judges were the only federal employees not to get a cost-of-living pay raise last year) and the efforts the branch devotes to saving taxpayers money.  Well, yeah...  It's worth it to do a Federal case just to get a chance to see the judge's chambers in the Federal courthouse they built here in Cleveland a few years ago.  I'm not saying they're spacious, but the first time I walked into one, the secretary pointed me in the right direction and told me the judge's desk was just over the horizon.  

Down in Columbus, the big decision -- and about the only one -- was Middleburg Heights v. Quinones,  which involved the question of how municipalities could assess court costs in traffic cases.  The 8th District had ruled that costs could only be assessed per case, rather than per charge.  The Supreme Court agreed, but left a Grand Canyon-sized loophole:  a court can assess "special project fees" on a per charge basis.  And what can a special project fee be?  Just about anything the mind can imagine.

Finally, a reminder in Webber v. Kelly that a reversal for manifest weight of the evidence requires concurrence of all three judges on a court of appeals panel, while reversal on insufficiency requires only a majority.  Two judges had agreed that Webber's conviction of felonious assault was against the manifest weight, but he didn't raise an insufficiency argument until his habeas case, and by then it was too late.  Might not have mattered; there are different standards for the two, and a reversal on one doesn't mean there will be a reversal on the other.

Things didn't slow down much in the courts of appeals, though; they handed down almost 300 cases in the last two weeks.  The highlights...

Continue reading "Case Update" »

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