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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.

Civil.  Appellate court lacks jurisdiction to review claim that trial court was biased, since only Supreme Court can disqualify judge, says 9th District in a bad decision... Good 8th District decision on how sovereign immunity applies in false arrest suit against police officer... Divorce court's order that parents, child, undergo psychological examination not a final appealable order, says 10th District... 2nd District says trial court abused discretion in only awarding spousal support for 5-year period where wife was primarily a homemaker during couple's 20-year marriage... 9th District upholds award of sanctions for frivolous conduct, despite plaintiff's voluntary dismissal of complaint, says that plaintiff and attorneys had duty to investigate facts before alleging slander...

Criminal.  9th District holds that indictment for burglary is not defective because it does not specify mens rea for trespass element, says that intent element for predicate offense need not be included; also holds that dismissal of indictment, not acquittal, is proper remedy if indictment is defective... 8th District rules that firing gun straight up in the air did not constitute felonious assault, where alleged victims were inside a house... 12th District upholds shackling of defendant during trial; excellent discussion of law on this issue in the concurring opinion... 8th District says that victim's call to 911 was sufficient corroborating evidence to support conviction for sexual imposition... 7th District upholds search of purse incident to arrest, says container can be searched even after it's removed from defendant's control... 11th District concludes that county jail is not a "correctional institution of this state," RC 2941.401, giving 180 day speedy trial time to state prisoner upon demand, does not apply...

Bet he didn't wash his hands afterwards, either.  In City of Alliance v. Carbone, the defendant was convicted under the city's ordinance prohibiting "loitering in or near a toilet building."  Police Lieutenant Morris testified that he was running a sting operation near a park toilet, in response to complaints of lewd activity.  The opinion recounts:

Appellant entered the restroom [and] immediately went to a stall and urinated. After leaving the stall, the two men engaged in a brief conversation, where Appellant asked Lieutenant Morris, "What's going on?" Lieutenant Morris responded, "Nothing much," and the two men walked out together. Lieutenant Morris then asked Appellant, "Are you looking to get together?" to which Appellant hesitated and responded, "Sure."

The 5th District tossed the conviction, finding the statute unconstitutionally vague.

Meanwhile, Lieutenant Morris?  If this is the kind of detail lieutenants on the Alliance force get tasked with, what do the patrolmen get stuck with?


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