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Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Case Update

Well, this makes it easy.  Oral arguments are done for the term in DC, and no new decisions were announced this past week.  About the only news -- and I'm really plumbing the depths here -- is a cert filing in a case out of Washington by the law firm which runs SCOTUSblog and which, they tell us, raises the issue of "whether the Double Jeopardy Clause prohibits retrial on a charge when the jury is instructed to begin deliberations with the most serious charge but proceed to a less serious charge if it cannot agree, and the jury finds the defendant guilty of a less serious offense without returning a verdict on the more serious one."  Ohio is one of the twenty-three states which don't require a jury to come to a unanimous verdict on the greater offense before moving on to the lessers.  There's some dictum in a few Ohio cases to indicate that conviction of a lesser offense implies acquittal of the greater, but it's nothing solid, so we'll see if the Supremes take this case, and what they do with it.

And absolutely nothing out of Columbus, not even the customary smackdown of a couple of miscreant attorneys.  So let's get on to the courts of appeals...

Criminal.  1st District says legislative determination that Intoxilyzer tests are reliable requires exclusion of expert testimony re general reliability of machines... 10th District upholds single photo identification against claim of ineffective assistance for failure to file motion to suppress it... 5th District says that indictment for patient endangerment fatally defective because it did not include allegation that defendant acted recklessly... 6th District upholds detective's expert testimony on delayed disclosure in child sexual abuse case... Tenant still had standing to contest search of apartment despite eviction notice, says 2nd District... 8th District says plea must be vacated because trial court didn't advise defendant sentenced to rape of possible maximum fine of $20,000...

Civil.  Where parties' agreement resolving divorce case specified that it was on "all issues," trial court didn't err in concluding that meant motion for sanctions that was still pending at time of agreement... Yeah, I guess:  3rd District says trial court erred in awarding attorney fees in child support modification proceeding, where wife's motion didn't request any, and no hearing was held on the issue... Tough luck for plaintiffs whose attorney didn't file a reply to a counterclaim or a response to defendant's motions for sanctions, resulting in summary judgment and award of sanctions against plaintiff:  negligence of their attorney is imputed to them for 60(B) purposes... Ohio-based company which had website and set up referrals to out-of-state court reporters could not acquire personal jurisdiction over out-of-state law firm which used service...

Sometimes the headnotes are enough.  So I'm skimming through the 3rd District's decision in In re Brown, discussing why the father of a child born out of wedlock doesn't have a statutory entitlement to know the child's address, while an ex-husband does, and I'm thinking, "Gosh, that's pretty crappy," until I get to this line in the headnotes: 

It was no abuse of discretion not to give the father the child's address because the child, who was 16, wanted to wait to visit until he could transport himself to where the father was in prison. . .


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