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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:

Criminal.  6th District rejects claim that Adam Walsh Act, which revised sexual offender notification and registration requirements, cannot be applied retroactively; several other appellate districts have reached the same conclusion, and the Supreme Court accepted an appeal on the issue last month... 6th also rejects claim that defendant's guilty plea to Colon-defective indictment was not made knowingly, since judge did not advise him of mens rea element, says that plea colloquy demonstrated that defendant gave his motivations for robbery and thus established his intent; other courts have held that guilty plea waives claim of defective indictment... 8th District affirms stop based on tip, discusses difference in reliability of tip from anonymous informant and one from identified citizen informant... Bad decision:  Claim of ineffective assistance by virtue of counsel's also representing co-defendant, thus creating conflict of interest, not cognizable on appeal, since that involves Rules of Professional Conduct, and court of appeals doesn't have jurisdiction to consider that, says 6th District... 12th District reminds us that classification of juvenile found delinquent of rape as sexual offender is not automatic; court must use discretion when classifying...

Civil.  6th District affirms summary judgment for landlord in lead paint case, says landlord had neither actual nor constructive notice of lead paint on premises; discussion of other lead paint lawsuits... 5th District says that trial court can't require parties in divorce case to submit all motions to guardian ad litem for approval, without a finding that either party was a vexatious litigator...

A pound of flesh.   The judge sentences a defendant to five and a half years in prison for drug trafficking, and also imposes mandatory fines of $22,500, despite the filing of an affidavit of indigency.  In State v. Loving, the 10th District affirms, noting that the judge postponed the defendant's responsibility for paying the fines until he got out of prison, when he would be only 32.  Judge Tyack's dissent accurately points out the ludicrousness of this holding:

Nothing in the record indicates that Bryant Loving has any current assets.  Nothing in the record indicates that he will acquire any assets while he serves his five and one-half years of incarceration.  He will be 32 years old when his term of incarceration ends.  He will have been unemployed for over five years.  He will present any future employer with a history of multiple felony convictions, a history of multiple misdemeanor convictions, and a history of drug addiction.  His employment prospects are not good.  His ability to pay for his basic needs is in serious question.  His inability to pay for his basic needs and somehow pay $ 22,500 in fines is clear.

Tyack also noted that "the state of Ohio indicated that it likes to have these fines collected because the money goes directly to underwrite the costs of law enforcement."  Well, yeah, but this beyond absurd.

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