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.  (keep reading…)

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.

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. (keep reading…)

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.  (keep reading…)

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.  (keep reading…)

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: (keep reading…)

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. (keep reading…)

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.

(keep reading…)

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. Rance.  Before 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. (keep reading…)

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? (keep reading…)