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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

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...

Criminal.  5th District says that in negotiated plea agreement defendant can't object that offense he pled to was not lesser-included offense of crime he was charged with; doing so would violate invited error doctrine... 8th District says that kidnapping and gross sexual imposition not allied offenses, based on purely abstract comparison of elements... 5th District affirms child porn conviction, rejects claim that search warrant was stale, noting that users often keep porn pictures on their computers for years... Somewhat of a mindblower:  6th District says speedy trial violated because state took no steps to bring defendant, who was serving prison term in Florida, to Ohio for trial... 3rd District upholds denial of motion in importuning case that defendant's expert be allowed to inspect hard drive of police computer...

Civil.  Makes sense:  farmer hires plaintiff contractor to repair his roof in barn, plaintiff inspects roof, then falls through it while making repairs, argues that farmer failed to warn him of defects; 12th District says that if plaintiff couldn't find defects after inspection, how could farmer be expected to know of them?... 12th District holds that father did not have to show "change of circumstances" in order to lift supervision requirement in visitation order...

Bullshit story of the week.  In State v. Smith, the defendant is charged with the murder of a woman named Morrison.  He first tells the police that JM, a friend of his, and Morrison got into an argument as the three were coming out of a bar, and JM hit her on the head with a PVC pipe and killed her.  Turns out that JM wasn't even in town that day.  At trial, Smith comes up with a new version:

appellant testified that he left the bar with Morrison that night, but, after she had walked ahead of him, he saw her attacked and beaten by two men smoking crack cocaine in an alley behind his former residence.  Appellant also testified that after seeing Morrison attacked he became scared, ran into the vacant home, and hid in a small furnace room. Thereafter, while appellant hid in the furnace room, the two men dragged Morrison inside the house and hit her with a PVC pipe. Although he claimed to know one of the men who attacked Morrison, appellant refused to identify the attacker because he felt threatened and believed that his family was in danger.

Hard to figure why the jury didn't buy that one, huh?  Every now and then I get a case where after the client tells me his story, I say, "Would you want to hire a lawyer who was stupid enough to believe that?"

And if you're wondering, yes, the defense did argue manifest weight and insufficiency of the evidence on appeal.

And yes, the conviction was affirmed.


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