You’re representing a defendant in a child rape case.  The eight-year-old victim has testified in graphic detail as to exactly what your client did.  You know the jury’s sitting there thinking that the kid has to be telling the truth, otherwise how would she know this stuff?  You know that the child has an alternative source for this knowledge:  she was molested by someone else a year or so earlier.  But when you attempt to introduce the evidence of that, the judge refuses, because it doesn’t fall within one of the exclusions in the rape shield statute, RC 2907.02(D). 

That’s the wrong answer, as the 6th District’s decision in State v. Ector last week indicates.  (keep reading…)

Criminal appellate lawyers can tell you how difficult it is to get a conviction reversed, even under the best of circumstances.  Questionable police testimony is routinely accepted to overrule motions to suppress searches or statements, violations of evidentiary rules are disregarded under the rubric of “harmless error,” and courts regularly indulge in fictions, such as that jurors always abide by curative instructions.  It’s rare to see a case get reversed at all, much less to see a court reverse a decision when it really didn’t have to.  But that’s what happened not once, but twice last week.  I’ll talk about one today, and the other, involving the rape shield statute,  tomorrow. (keep reading…)

Thirty-three decisions last week, over two-thirds criminal, and good lawyering abounds.  (keep reading…)

One other decision last week from the Ohio Supreme Court that I skipped over yesterday:  in State v. Malone, the court holds that a conviction for intimidating a witness under RC 2921.04(B) requires that criminal proceedings have already been insitituted.  That’s not required for conviction for intimidating a victim.

On to the courts of appeals… (keep reading…)

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.  (keep reading…)

This could be one of the more significant US Supreme Court terms for criminal law in recent memory.  We’ve already had two major decisions on 4th Amendment law, Herring v. US (discussed here) and Arizona v. Johnson (here), and in the pipeline is Arizona v. Gant (here).   This past week, the Court had oral argument in two more.  Boyle v. US concerns the issue of what constitutes an “enterprise” for purposes of the Racketeer Influenced and Corrupt Organizations Act (RICO); the defendant argues that the enterprise must have some ongoing structure and existence beyond the commission of the racketeering acts.  As I mentioned earlier, given the frequency of RICO prosecutions, this will be a signficant decision. (keep reading…)

Timothy Evans ran into some bad luck on November 18, 2005.  His simple purse-grab outside a store in Cleveland was foiled because the woman just held the purse tighter.  He told her he had a gun, but it didn’t have the desired effect; “Well, you know what? You’re going to have to use it,” the victim replied.  When another customer saw the fracas and sounded the alarm as the two fought, Evans took off.

His luck got worse when he got caught two months later and indicted for aggravated robbery.  It improved when the judge, after a bench trial, acquitted him of the aggravated robbery, finding he didn’t have a gun, but convicted him of simple robbery, on the theory that he committed robbery by threat of physical harm.

And Evans hit the jackpot a year ago when the 8th District vacated his conviction, holding that robbery wasn’t a lesser included offense of aggravated robbery.

(keep reading…)

You’re representing Joe in a personal injury action, and the other side sends you a medical authorization for the records of Joe’s treatment with Dr. Smith, his family physician of the past ten years.  But when you present the authorization to Joe, he tells you that, in addition to treating him for his back injuries, Dr. Smith also treated him for an STD a few years back.  That’s guaranteed to play hell with your loss of consortium claim for Joe’s wife, no?  What to do, what to do… (keep reading…)

Bad week for criminal defendants, a much better one for civil plaintiffs; in twelve criminal cases, the meager results are the vacation of a plea and a reversal because the judge failed to merge certain offenses. (keep reading…)

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… (keep reading…)