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Case Update

It's not uncommon for judges to instruct counsel for the prevailing party in the case to prepare the journal entry, but the teaching of Disciplinary Counsel v. Stuard is that it's a no-no to meet with counsel ex parte to help them prepare it.  This wasn't an ordinary case, either; after the jury handed down a death sentence, the judge asked the prosecutor to prepare the court's opinion, and gave him his notes to help the prosecutor do that.  It's kind of hard to understand why it didn't occur to either of them that this wasn't kosher.  They each get a public reprimand.

Other than a handful of other discipline-related decisions, nothing from Columbus.  Down in DC, there was oral argument on a trio of criminal cases, which I'll write about later this week.  The only decision was a summary reversal in a Federal sentencing case, Nelson v. US.  Two years ago in Rita v. US, (discussed here), the Court held that a sentence within the Guidelines was presumptively reasonable.  In Nelson, the Court repeats what it decided in subsequent cases:  that presumption applies only to appellate review.  In fact, what warrants reversal in Nelson is that the trial judge treated the guidelines as presumptively reasonable, and you can't do that.

On to the courts of appeals...

Civil.  Failure of signatory to lease to clearly indicate he was signing in corporate capacity does not create personal liability, 8th District says, where other evidence, like fact that lease identifies corporation, not individual, shows that he signed as representative... Good discussion of when appellate court must hold en banc hearing to resolve conflicts in this 10th District decision... 8th holds trial court erred in granting judgment on pleadings because plaintiff failed to attach copy of contract to complaint; defendant's proper course should have been to file motion for more definite statement... 11th District reverses trial court's order compelling production of defendant driver's medical records, holds that on record before it records, even those containing blood alcohol test results on driver, may be privileged...

Criminal.  1st District says that mere refusal to provide identification to police can't support conviction for obstructing official business... 3rd District holds that where judge dismissed indictment for being unconstitutionally vague during trial, double jeopardy doesn't bar retrial; only dismissal going to factual issues, not legal issues, prohibits retrial... Defendant charged with rape, lawyer argues that sex was consensual, no defense witnesses, prosecutor says there's "no evidence" of consent, 9th District holds this doesn't constitute impermissible comment on defendant's failure to testify... Trial court may reject defendant's demand that he be allowed to represent himself where demand is not timely, in this case, during the middle of trial, says 10th District... 3rd District says trial court erred in not holding hearing on restitution where prosecutor's report said amount was "to be determined"... Over dissent, 11th District rejects delayed appeal from rape conviction filed 16 months after verdict as untimely, despite appellant's claim that no one explained his appeal rights to him, court says length of time shows that "appellant was not diligent" in protecting his rights...

That's one tough lady.  Defendant and girlfriend get into a fight, and the defendant starts stabbing her with a steak knife until the blade breaks.  He grabs a butcher knife, chases her down the hall, and starts stabbing her again.  In State v. Roberts, the 3rd District says that "the cessation in the attack during which Roberts obtained a second knife constitutes... a break in the 'temporal continuum,'" sufficient to permit convictions for both attempted murder and felonious assault.

Yes, I said "attempted" murder.


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  • November 7, 2017
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