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March 2009 Archives

What's up in the 8th

happystpatricksdaycatA St. Paddy's day hangover, apparently.  Not surprising, given the plethora of Irish judges on the court, but this results in only nine decisions, less than half the normal workload.  Four are in criminal cases, and every one involves the validity of a plea, with defendants batting .500.

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Case Update

The Potomac 9 showed criminal defendants no love this past week.  In Knowles v. Mirzayance, it reversed the 9th Circuit (again) on a habeas case.  The opinion's not worth a lengthy discussion, because the 9th Circuit's ruling was a bad one, but lawyers who do habeas work should definitely give it a read, especially regarding ineffective assistance of counsel claims.  The other decision was Puckett v. US, which held that a defendant who claimed on appeal that the government had violated a plea bargain forfeited the error by not raising it in the trial court.  The case contains a good discussion of the concept of plain error, which we'll return to later this week. 

The gang down in Columbus was busy, too, but mostly with disciplinary cases; no fewer than eight of them, including one in which a former municipal judge was disbarred after being convicted for burning down his house for the insurance money.   A more usual case was Mandelbaum v. Mandelbaum, in which the court held that spousal support can't be modified absent a change in circumstances that wasn't contemplated at the time of the original decree.   And in Moore v. Lorain Metro Housing Authority, the court decides that operating a public housing authority is a "governmental function" within the sovereign immunity statute, and remands the case back to the trial court for a determination of whether the exception to immunity for a "physical defect" in a building applies.

Moore also serves to remind that even where a case turns solely on the law, having bad facts doesn't help you.  The case involved the deaths of two children in a fire; the children's mother, who'd left the children with their father while she ran some errands, claimed that the housing authority was liable because it had removed the smoke detectors in the apartment, and thus the father had not awoken in time to save the children.  Before turning to the legal issues, and apropos of nothing much, the court's opinion notes that a police officer on the scene believed that "[the father's] behavior indicated that he was under the influence of cocaine at the time of the fire," and that an outside agency had inspected the premises just two weeks earlier and reported that the unit had a working smoke detector.

We've got two weeks of court of appeals stuff to wade through, so let's get to it.

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In all candor

On Wednesday I talked about a recent case I had involving whether a parent's slapping a child constituted domestic violence, and mentioned that I'd filed a brief which included not only cases supporting my position, but also cases where the courts had held that the parent's attempt at discipline had crossed the line.  This earned kudos from one of my legion of regular readers, who complimented me on presenting a balanced approach.  Actually, my effort wasn't intended as dispassionate enlightenment:  I included the latter cases because they involved conduct far more egregious than that engaged in by my client.

But that got me thinking about a recent Federal case, and also the one ethics rule which I believe is honored solely in the breach.

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What's up in the 8th

Using the prosecutor's office as a collection agency, reluctant domestic violence victims, and the metaphysical question of whether one can attempt an attempt featured prominently in the 8th District cases last week.  Let's get down to it.

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Spare the Rod...

It's not a bad case, as domestic violence cases go.  My client Jorge discovered that his 17-year-old daughter had gone to the homecoming kids-spankingdance with someone he'd forbidden her to see, so he slapped her a few times.  He's got a couple priors, though, which makes this a 3rd degree felony. 

There are some facts which are not, shall we say, helpful.  Like that his daughter's about 4'9", and weighs maybe 90 pounds.  And she claims that the slaps caused her to bleed out of the corner of her eye.  Her glass eye.  Which replaced the one she lost to cancer when she was three.   No, I'm not making that up.

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Medical miracles

Well, I made it.  Turns out that that I fell on the right side of the somewhat forbidding mortality rate at Rob & Emma's Hospital and Tire Center.  Maybe it's just me, but I did think it was bad form for the nurse, while she was escorting me down the hall to pre-op, to shout out, "Dead man walking!"  I guess it's a tradition. 

Slight change  in the schedule.  I'm skipping the Case Update for this week, since I wouldn't get to it until Thursday, and I might as well wait until Monday and give you two weeks' worth.  I'll have a nice war story about my latest foray into the maws of the criminal justice system for you tomorrow, and we'll do the 8th District cases on Thursday.  Friday... Well, we'll see what turns up.

In the meantime, you might want to check out the latest blog post by one of my peeps, Brian Wilson, who talks about the kharmic aspects of the AIG bonus blowup.

See you tomorrow, when I'll explain just exactly how far you can go when Junior gets out of line.

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Why I ♥ the 8th

Yes, I know, the 8th gets routinely reversed in civil cases, and I've lambasted it for its obsequious deference to trial judges in sentencing cases and for its cringeworthy hearsay jurisprudence.  But all is forgiven.  Last week, in State v. Acy, the 8th again proves itself the most 4th Amendment-friendly court in Ohio.

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The latest on allied offenses

This week, anyway.  Back in October, I'd reviewed the oral argument in State v. Winn, the latest effort in the seeming Sisyphean task of articulating a coherent standard for determining allied offenses, the lack of which I've addressed ad nauseam (sample here)The court handed down its decision yesterday, so it's time to sift through the entrails.

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Never too late?

A couple weeks ago, in State v. Thomas, the 1st District granted Marlin Thomas' motion to reopen his appeal.  They'd earlier held that his two convictions for felonious assault, one under the deadly weapon section and the other under the serious physical harm section, weren't allied offenses.  They changed their mind and decided they were, and ordered Thomas' convictions merged.

Thomas had been convicted back in 2001.  The decision that the 1st District reopened last week had been handed down seven years ago.

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What's Up in the 8th

Take three sentencing cases, add two search decisions, toss in a couple of Colon issues and a pinch of some weird sex case, bring to boil, simmer for twenty minutes, and you've got the normal 8th District weekly stew.  Let's take a look...

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Case Update

Apparently, the Columbus Seven were so disoriented by the recent redesign of the Supreme Court's web site that they couldn't bring themselves to write any opinions.  The best news about the redesign, of course, is that it offers the ability to download oral arguments through iTunes.  If you, like me, were putting off the purchase of an iPod because of the inability to use it to listen to oral arguments, well, time to open your wallets.

Down in DC, nothing much this week.  Perhaps to coincide with fantasy baseball, SCOTUSBlog comes out with its StatPack for the Supreme Court's 2008 term so far.  Previous StatPacks (going back to 1995) are a great way to resolve those arguments you always overhear in your local pub, like who's written the most opinions or how often Scalia and Ginsburg are on the same side of a case.

Seriously, what the current StatPack did do is remind me that three big cases from October and November have yet to be resolved:  Gant, involving car searches (discussed here), Melendez, involving the application of Crawford to lab tests (here), and Fox, involving the FCC's "fleeting expletives" policy (here).  Any day now...

Meanwhile, let's take a look at some people who were hard at work.  A roundup from the courts of appeals...

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From the mailbag; shutting up

Ask the Briefcase.  Well, actually, not from the mailbag.  My buddy Paul is in trial this week.  Normally, about 30% of our conversations start out with the phrase, "Hey, Russ, can you find a case that says..."  When he's in trial, the percentage approaches 80. 

But he's a shaprp guy, and he picked up something I hadn't.  It's a drug trafficking case, and he's got to put his client on the stand, a prospect freighted with risk by virtue of his client's 2000 conviction for a 5th degree felony of -- gulp -- drug trafficking.  He tells me to take a look at Evidence Rule 609, which deals with impeachment through use of prior convictions "if the crime was punishable by death or imprisonment in excess of one year pursuant to the law under which the accused was convicted."  So Paul asks me:  can his client's prior be used for impeachment purposes?

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The Adam Walsh Act - the final straw?

Last year, in Hyle v. Porter, the Ohio Supreme Court held that the residency restrictions for sex offenders adopted by the legislature in 2003 couldn't be applied retroactively to those who'd committed crimes prior to the effective date of the statute.  The court skirted the obvious constitutional questions and instead based its decision solely on statutory construction rules, holding that the legislature hadn't expressly stated that the legislation was to be applied retroactively.  I commented at the time that "this leaves open the possibility that the legislature will remedy the problem by repassing the law, this time with an express statement that it’s intended to be retroactive."

Turns out the legislature went me one better.

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Memory Lane

Remember the good old days, when the courts would throw out a search, even if the police had a warrant?  Those days pretty much ended a quarter century ago, when the Supreme Court handed down US v. Leon, establishing a "good faith" exception to the warrant requirement:  the exclusionary rule wouldn't be applied if the police acted "in reasonable reliance on a search warrant issued by a detached and neutral magistrate," even if another court later determined that the  warrant shouldn't have been issued because probable cause was lacking.

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What's Up in the 8th

Two weeks worth of cases to look at, mostly criminal, so let's get to it.

One of the problems with the Cuyahoga courts handling 25,000 criminal cases a year is that some judges tend to speed the process up by taking shortcuts.  One of the favorites is the "group plea," AAKA001582similar to the one shown  here.  Whoops, that's a picture of a mass marriage performed by the Reverend Sun Myung Moon.  But you get the idea:   the judge will take the bench, a group of defendants from disparate cases sullenly arrayed before him, waiting to be advised en masse of their rights and to consent to the deals that have been brokered that morning on their behalf.

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Case Update

The vacay in 'Nix worked out just fine, but touch-down at Cleveland Hopkins Airport always brings to mind Jim Bouton's observation in Ball Four that if you're going to be in an airplane crash in Cleveland, better that it be an inbound flight.  And there was the post-return drama of explaining to my new OVI client that it probably wasn't a good idea to ask the nice police officer to hold his beer while he took the heel-to-toe test.

But I'm tanned, rested, and ready to get back to digging through the plethora of cases that have come down in my absence.  Actually, not much going on at the upper echelons of the judiciary.  The DC Gang handed down Wyeth v. Levine, affirming a $6.8 million award over Wyeth's contention that its compliance with FDA label regulations should have immunized them from a failure-to-warn claim.  And the major case from Columbus was State v. Smith, actually a reconsideration of a case from last year, in which the court reaffirms its earlier holding that a defendant charged with robbery can be convicted of the lesser-included offense of felony theft, even though the indictment doesn't specify an amount.

The highlights from the courts of appeals...

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