Case Update
Nothing from interest out of Columbus, except for the usual spate of disciplinary decisions, like this one, which helpfully informs us that if you're going to forge a judge's signature on a journal entry granting occupational driving privileges, you need to come up with a better excuse than "I wanted to show my client what one looked like."
The US Supreme Court was a good bit more active, coming down with the decision in Arizona v. Gant, which I'll discuss on Wednesday, and holding oral arguments in several key cases, such as one involving the strip-search of an 8th grader, which I'll discuss on Thursday. There are still several key cases which were argued last fall, and could come out at any time, including the one involving the FCC's "fleeting expletives policy," discussed here, and the case concerning whether Crawford v. Washington applies to laboratory reports, which I discussed here. And SCOTUSBlog has some interesting stuff on whether the 2nd Amendment, as interpreted by the Court last year in District of Columbia v. Heller, will be applied to states and localities: the 9th Circuit held that it should be, and there's a case out of New York involving nunchakus, of all things, where cert is being sought.
It's been two weeks since the last update, so there's a lot of court of appeals stuff to wade through. Let's get to it...
Criminal. If your wife finds child porn on your computer and asks you why you saved it, don't just shrug and say "I don't know"; 9th District says that can be construed as admission by silence... Receipts kept by one entity can full under business records exception to hearsay rule, even though they were prepared by another entity, says 3rd District... 12th District upholds Adam Walsh Act against the various arguments about retroactivity, separation of powers, etc.; Ohio Supreme Court just granted review on this issue... Big one from the 5th District: if officer claims he smelled burning marijuana as basis for search of car, state must present evidence of officer's qualifications in detecting odor of marijuana... 6th District says that while judge erred in allowing alternate juror to sit in on jury deliberations, error is harmless since judge instructed alternate not to participate... 1st District says that defendant cannot be convicted of both complicity and conspiracy to commit the same crime... 8th District says 14-year-old niece's testimony that uncle who had sex with her told her not to tell anyone and that she was "afraid" sufficient to establish force for rape conviction... 6th District says that where defendant confessed during 1985 interview with detective to fondling his stepdaughter, indictment in 2008 was beyond statute of limitations; although defendant moved to Florida right after interview, statute wasn't tolled because no prosecution was commenced until indictment was returned...
Civil. 12th District says that close corporation's payment of husband's personal tax liability should be included as income for child support purposes... 5th District says that father's consent to adoption was necessary, because child's mother had prevented him from visiting with child... 10th District rules that dismissal of prior suit for lack of subject matter jurisdiction is not res judicata grounds for dismissal of subsequent suit... Morgue employee releases wrong body for funeral, 12th District says that's protected by sovereign immunity statute... 11th District notes that limitations period for employer intentional tort is two years, not one... 6th District says that parent charged with contempt for failing to allow visitation has defense of "reasonable, good faith belief" that denial is visitation is necessary to protect child...
Adam Walsh Act stuff. If you didn't know this -- and I didn't -- there's a way to have a defendant relieved from the notification requirements for a sex offender. As the 9th District explains in State v. McConville, under RC 2950.11(F)(2), the court can relieve a defendant of those requirements it it holds a hearing and determines that he wouldn't have been subject to the requirement under former law. The case is a must-read if you're representing a sex offender.
Dirty Urine. The 2nd assignment of error in th 4th District's case of State v. Johnson was
THE TRIAL COURT ERRED IN NOT ALLOWING THE APPELLANT TO WITHDRAW HIS PLEA BASED UPON HIM BEING UNDER THE INFLUENCE OF CRACK COCAINE
The case notes that while the defendant took a drug test the day he pled guilty, he had taken a substance called "Really Clean" or "Extra Clean" that masked the effects. Being the inquisitive sort I am, I did a little web sleuthing, and came up with this: under the title, "Fooling the Bladder Cops," everything you always wanted to know about drug tests, and how to beat them. Yes, Virginia, there is something called Mary Jane's SuperClean®. No, Virginia, it doesn't work.
The ever-expanding scope of the law. What's more, Virginia, as the 12th District explained last week in Winkle v. Zettler Funeral Homes, there is a legal cause of action entitled "wrongful interference with a dead body."
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