June 2009 Archives
A few months back, I ran into one of the Cuyahoga County court of appeals judges, who told me that they'd almost cited my blog in one of their recent opinions; apparently, they'd sobered up just in time. It seems the liquor was flowing more frequently down at the old Lakeside Courthouse last week, because as I'm reading the 8th's opinion in State v. Minifee, I come across this line:
As for the state of the law on allied offenses, we could not agree more with how one commentator described it, namely, that "one would be hardpressed to find an area of Ohio law that is more confused than this one."
When I checked the footnote, sure enough, the commentator turned out to be me.
The US Supreme Court will wrap up its term today, with three decisions still outstanding, the most significant of which is the New Haven firefighters affirmative action case. Last week's big decisions were the application of Crawford to scientific reports, which I discussed on Friday, and the school strip search case. That, and the earlier decision on post-conviction DNA testing, will be discussed here later this week. Like everybody else, I'll be off on Friday.
The only significant decision down in Columbus was McGhan v. Vettel, affirming the denial of a writ of prohibition to keep a judge from hearing a custody case under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which replaced the old Uniform Child Custody Jurisdiction Act (UCCJA), because six-letter acronyms are preferable to five-letter ones. The test for a writ of prohibition in these cases is whether the trial court "patently and unambiguously" lacks jurisdiction, and appellant's task here was made more difficult by the fact that the trial court "patently and unambiguously" had jurisdiction; the children had lived here for over a year, and the Michigan court, where the matter originated, had expressly terminated its proceedings so the Ohio courts could determine custody. If you've got an interstate custody dispute, the decision is worth a read.
On to the courts of appeals...
Almost two years ago, in State v. Crager (discussed here), the Ohio Supreme Court held that having a DNA analyst testify to tests that were actually performed by someone else didn't violate the Confrontation Clause, as the US Supreme Court interpreted it in Crawford v. Washington. Yesterday, the latter body, in Melendez-Diaz v. Massachusetts, essentially told the former they got it wrong.
Andy Warhol once remarked that, in the future, everyone will be famous for 15 minutes. My own take is that in the future, everyone will have their own blog. Or at least every lawyer. When I started this blog over three years ago, there weren't more than a few others in Ohio; now there are dozens, with several targeted at the criminal defense bar. Even the big law firms are getting into the act; as Legal Blog Watch notes, over 40% of the top 200 firms now have blogs, up 110% from just two years ago.
Of course, there's a downside: if you're not careful, you can wind up like Kirk Bernard, a Seattle lawyer whose blogging efforts won him the Asshat Lawyer of the Day award. That's the fifth hit that comes up when you Google Bernard's name, and is bracketed by another one asking rhetorically whether he's a thief, and one labeling him a slimeball.
Some judges allow jurors to ask witnesses questions at trial, a practice that was upheld by the Supreme Court in 2003 in State v. Fisher. A lot of lawyers don't like it. It may have saved Tom Siller 30 years, as last week the 8th District, in State v. Siller, bya 2-1 vote game him a new trial.
Inventive police work, a new legal avenue for women seeking child support arrearages, a Byzantine PRC case, and how far a trial court has to go in explaining a defendant's rights at a plea... All that and more from the 8th, despite a week which saw only 12 decisions, about half the normal output.
Forensic science marches to the fore this week. In DC, the Supreme Court decides 5-4 in District Attorney v. Osborne that there is no constitutional right to DNA testing after conviction; whether and in what cirucumstances such testing should be allowed is up to the state legislatures. Down in Columbus, the Supreme Court accepts review of a notorious Akron murder case in which the defendant had been denied DNA testing. And here on the Lakefront, a defendant is given a new trial from his aggravated murder conviction because of sloppy work by the police blood specialist. I'll talk about the latter case in more detail on Wednesday.
Imitation is the sincerest form of flattery. Last year I did a post on judicial writing, leading it off with the opening quote from Chief Justice Roberts dissent from the denial of certioari:
My buddy Paul has a simple definition of a good judge: one who won't "jam him up." That's an understandable concern. Paul and I are both solo practitioners, and that can be rough. If there's something that needs to be done, we need to do it. It's not like we can pawn off a pretrial to an associate, or have a paralegal draft a complaint, or tell the law clerk to research the law for that brief that's due on Friday. So it's good to have a judge who's not going to get on our case about discovery deadlines or who'll give us that continuance if things get really stacked up.
A considerable portion of the Ohio Supreme Court's time over the past few years has been devoted to cleaning up what happens when trial judge's don't properly impose post-release controls. The legislature got into the act, too, passing statutes which purported to remedy the problem. Last week in State v. Bloomer, the court took a look at those statutes, but avoided answering the biggest question: whether the statutes are valid at all.
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