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Case Update - OSC Edition

Nothing doing in DC, except news of Justice Ginsberg's surgery for pancreatic cancer.  (SCOTUSblog explains why this might not be as bad as it sounds.)  Meanwhile, after listening to me whine for the last month about the OSC's paucity of decisions, the Moyer Gang decides to shut me up by issuing ten opinions.  I'll talk about those today, and hit the court of appeals cases tomorrow.

The biggies were a trio of criminal law cases.  In State v. Jones, the court held that a police officer who sees a traffic violation while outside his jurisdiction can make a stop without violating the 4th Amendment, even though it violates RC 2935.03.   The decision was based largely on the US Supreme Court's opinion in Virginia v. Moore, which held that any violation of law was sufficient to provide probable cause to arrest for 4th Amendment purposes, even if it wasn't an arrestable offense under state law.

A number of crimes, like drunk driving and domestic violence, become felonies on second or subsequent offenses.  The prior conviction can't be used if the defendant didn't have counsel, and there was no valid waiver of that right.  State v. Thompson concerns how to determine whether the prior conviction was uncounseled.  The 5th District had reversed Thompson's convictions, relying on the Supreme Court's decision in State v. Brooke (discussed here), concluding that "the record contains no evidence that the prior waivers of the right to counsel were made on the record in open court, nor shown through the court's colloquy with the appellant to have been knowingly and voluntarily made." 

All well and good, but there's a problem:  the Supreme Court has consistently held that a defendant bears the burden of production on this issue.  Even a simple affidavit that he wasn't advised of his right to counsel will do, but Thompson filed only a pretrial motion to strike the prior convictions from the indictment, attaching no evidentiary material.  That this is well-established is indicated by the fact that Thompson is a unanimous decision.  Again:  once the defendant introduces some evidence that he wasn't advised of his right to counsel, the burden shifts to the state to prove that he was.  But not until then.

Another unanimous decision comes in State v. Pasqualone, which deals with RC 2925.51.  That statute allows the state, in drug prosecutions, to introduce a lab report as proof that the items are indeed drugs.  The state has to jump through some hoops to do that:  it has to give the report to the defense before trial, accompanying it with an affidavit from the person who conducted the test, detailing his qualifications and how the test was conducted.  The defense still has the right to demand the live testimony of the analyst, and the notice has to inform the defense of that right.

In Pasqualone, the state had jumped through those hoops, and the defense hadn't demanded live testimony.  The 11th District reversed nonetheless, holding that the notice was served only upon Pasqualone's attorney, and that Pasqualone's right to confrontation couldn't be waived by the attorney.  While there are certainly some rights which can only be waived by the defendant -- to plead guilty, waive a jury, testify, or appeal -- the right to confrontation isn't one of them; in fact, many courts have held that whether to waive the right to confrontation by objection at trial is part of trial strategy, and is generally immune from second-guessing by the courts.

More interesting than the result in Pasqualone is the court's treatment of whether the right to confrontation is even implicated.  The state had argued that the lab analyst's report wasn't testimonial under Crawford v. Washington, an argument that the court acknowledges its 2007 decision in State v. Crager "strongly supports."  Crager (discussed here) flatly held that "records of scientific tests are not 'testimonial' under Crawford,"  on the whimsical notion that lab analysts, even ones working for the state, are only interested in truth and justice, a belief that does not find overwhelming support in the empirical evidence.  As I mentioned a few months back, the US Supreme Court is taking a look at this question, and the Pasqualone court forestalls any possibility of that decision affecting this one by emphasizing that it is deciding the issue solely on waiver grounds.

In the "we're just doing this for giggles" department is State v. BartrumBartrum had met a minor on the Internet and suggested a sexual dalliance.  To no one's surprise except his own, the "minor" was actually a police detective.   Bartrum didn't show for the arranged rendezvous, but was nonetheless charged with compelling prostitution.  The court holds that the statute requires that the person solicited actually has to be a minor.  Make that "required"; the statute has since been amended to allow conviction if the defendant believes the person is a minor, leading Justice O'Donnell to grumpily dissent, with justification, on the grounds that the the court shouldn't have bothered with the case in the first place.

Finally, in the "don't listen to what judges tell you" category we have Louden v. A.O. SmithOver ten years ago, Cuyahoga County set up a separate system for handling the profusion of asbestos cases, with two judges devoted solely to that purpose.  One of the standing orders for those cases is that all documents have to be filed electronically.  When the trial court granted summary judgment against the Loudens, they filed their notice of appeal -- electronically.  Although the Rules of Appellate Procedure allow for a court to adopt a local rule permitting electronic filing, the 8th District hasn't done so, and so the court rejected the notice as untimely.  The court affirms the 8th's dismissal, finding that although the notice has to be filed in the trial court, the Rules of Appellate Procedure govern appeals, and, well... All this leads Justice Pfeiffer to note that "It's a sad day when doing what the judge tells you to do isn't enough to ensure that your case is heard."

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