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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

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...

Civil.  8th District affirms that where parties' combined income exceeds $150,000, court has virtually unbridled discretion in determining amount of child support... 12th District affirms overruling of wife's motion to continue divorce trial, where she fired 2nd attorney two days before trial... 3rd District reverses grant of summary judgment in employer intentional tort case involving asbestos; excellent discussion of how materials supporting grant or denial can be presented in compliance with CivR 56(C)... 12th District affirms trial court's determination that wife was guilty of financial misconduct related to her gambling; she'd made ATM withdrawals of over $225,000 from various casinos... 9th District affirms trial court's termination of spousal support based on wife's cohabitation...

Criminal.  5th District says that destruction of urine sample in OVI case doesn't violate defendant's rights, where defendant had given breath sample... Although physical control was substantially equivalent offense to OVI under former law, it's not under current law because OVI requires movement of the vehicle, and physical control does not, 8th District holds, can't be used to elevate degree of offense... 3rd District rejects claim that, where defendant sentenced for multiple offenses, trial court must impose post-release controls for each one... 8th District says that appellate court will not engage in proportionality review in sentencing unless defendant raises issue, presents some evidence on it, in trial court...

Picky, picky, picky.  Plaintiff's counsel shows up for a hearing to confirm an arbitration award.  Problem:  the attorney isn't the one who signed the pleadings, but is instead another attorney from the same firm.  Why should that be a problem?  Good question, but it is for this judge, who dismisses the case with prejudice for failure to prosecute because no formal substitution of appearance was filed.

Seems I remember something about the preference for cases being decided on their merits, rather than on hypertechnicalities.  The 3rd District does, too, and in FIA Card Servs. v. Salmon, reverses the decision and joins several other districts which have held that there's no problem with different attorneys from the same firm appearing as substitute counsel.


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