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June 2009 Archives

What's up in the 8th

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.

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Case Update

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...

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A tale of two cases

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.

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Truth in advertising

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.

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The appearance of fairness

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.

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What's Up in the 8th

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.

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Case Update

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.

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Friday Roundup

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:

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Good judges

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.

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Another go-around on PRC

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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What's Up in the 8th

The court takes a look at four search cases, including an attempt by an (ex-)judge to create a new cause of action.  That, and the usual spate of cases involving screwed-up pleas or sentencings...

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Case Update

Other than the judicial campaign contribution case I discussed on Friday, the big news out of DC was something the Supreme Court didn't do:  it refused to hear the appeal from the Chrysler deal.  The Court's got two weeks left, although if you want to get a jump on the eventual analyses, you can take a look at the StatPack compiled by the gang over at SCOTUSBlog.  Some wags have suggested that we are a nation ruled by Anthony Kennedy, and they'd get some support for that observation from events so far:  Kennedy has voted with the majority in 92% of the divided cases, and only once in the 16 cases which wound up 5-4 has he been in the minority:  Arizona v. Gant.

Closer to home, in Lima v. State, the Ohio Supreme Court upheld the elimination of residency restrictions for municipal employees, which will either be the end of life as we know it for the cities, or no big deal.  I live in one of the three areas of Cleveland most likely to be affected, so I'm sort of the canary in the coal mine on that one.  The other big case was State v. Bloomer, which dealt with the legislature's latest attempt to clean up how judges impose post-release controls.  I'll talk about that on Wednesday.

On to the courts of appeals...

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Follow the Money

I don't know what grades Don Blankenship got in high school civics, but he sure understands the electoral process pretty well.  After a West Virginia jury hit up his coal company with a $50 million verdict, he set his sights on the upcoming elections for the state's supreme court, knowing that the case would wind up there.  Blankenship spent over $3 million in contributions and direct expenditures on behalf of Brent Benjamin, who was seeking to oust an incumbent.  In a judicial election in a small state, that's a lot of money; Blankenship's contributions and expenditures came to a million dollars more than the rest of the money raised by the two candidates combined.

Turned out to be a sound investment.  Benjamin was elected, and when the case finally came before the Supreme Court, he provided the margin for a 3-2 reversal of the verdict.

On Monday, in Caperton v. Massey Coal Co., the US Supreme Court decided that didn't pass the smell test, and held that the Due Process Clause compelled Justice Benjamin to accede to the plaintiff's request that he recuse himself.

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Too clever by half

Some lawyers like to talk to jurors after a trial.  I'm one of them; I figure there's always something I can learn.  Sometimes it's not something I necessarily wanted to find out...

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Taking out the murder weapon

The State's murder case against David Allen was iffy.  His girlfriend was found shot dead in her apartment a couple of weeks after they'd had a fight, and she'd earlier confided in a friend that she was afraid of him.  A witness claimed to have seen him run into an apartment building right after the victim went in, shortly before the killing.  And Allen was arrested in Akron with a gun a month later.  But the gun was a .25, and didn't match the .22 caliber shell casing found at the scene of the crime.  Forensics turned up nothing.  To top it off, the defense located the eyewitness' boyfriend, who was sitting next to her when she supposedly saw the defendant run into the apartment building, and he didn't see anything.

That's where matters stood just before the State rested.  At which point they announced that they'd taken a belated second look at the shell casing found at the murder scene.  It was actually a .25 caliber, the same as the gun found on Allen a month later.  And ballistics tests showed that the casing came from that gun.

Damndest thing I ever saw.

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What's Up in the 8th

You might not be able to tell what's coming, but you do know what you've left behind.  And you should know what's real and what's not.  Those, and other moral lessons, in a week in which a reversal for a Colon error provides the sole solace for criminal defendants...

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Case Update

Slight change in the Case Update this week.  It seems that Lexis isn't getting the cases as quickly as it used to, and there's only about thirty decisions from the courts of appeals.  I'll cover them next week, and stick to Supreme Court stuff this week.

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Friday Roundup

Should Scott Roeder be waterboarded?  A poster over on Balkinization poses some interesting questions, based on the premise -- a correct one, I believe -- that Scott Roeder's killing this past week of abortion doctor George Tiller was an act of terrorism.  Thus,

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Empathetic judges and elected judges

Just got done trying my case, to a new judge who'd  just been elected this past November.  I've known him casually for a long time, and he's a good guy, but he's a former prosecutor, so I wasn't quite sure what to expect.  Turned out fine:  the judge was eminently fair.   And it was a pleasure to try a case in his courtroom:  he had an easy and comfortable way with the jurors and the lawyers.

Which got me thinking about one of the (few) benefits of having elected judges, and about the debate raging in Washington about the latest Supreme Court nominee.

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With a little help from my friends

I've got a trial this week, so time is short.  Fortunately, a couple of members of my vast legion of faithful readers have provided me with the fodder for a quick post on what's necessary to get beyond a motion to dismiss for failure to state a claim, and what the State has to show in order to prove a prior conviction.  There's diversity for you...

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'Tis the season for overruling decisions, apparently.  Just a month ago Justice Scalia provided the fifth vote in Arizona v. Gant (discussed here), which essentially overruled the "bright-line" rule established in Belton v. US as to when police could search a car incident to the arrest of an occupant.  Last week, in Montejo v. Louisiana, Scalia again provided the 5th vote, this time expressly overruling a prior decision, albeit a pro-defense one.

Continue reading "Prophylactics" »

Case Update

The US Supreme Court is coming down with its end-of-term decisions; last week it issued three.  In Abuelhawa v. US, the defendant had purchased a gram of cocaine on two occasions, a misdemeanor under Federal law, but had made six telephone calls to arrange the purchases, and so was indicted and convicted of six felony counts of "using a communication device to facilitate a drug transaction."  The Court unanimously reversed, finding nothing in the legislative record which would support such an application.  In Haywood v. Drown, the Court dealt with a New York statute which had required prisoners pursuing §1983 lawsuits to file them in the state court of claims, which didn't allow attorney fees or punitive damages; the Court struck this down, too, albeit by a 5-4 margin, as a violation of the Supremacy Clause.  The big decision was Montejo v. Louisiana, which we'll talk about tomorrow.  (No 8th District roundup; the 8th handed down only nine decisions this week, about a third of the normal amount.)

Nothing from the Columbus Seven, other than a couple of disciplinary decisions, so let's get to the courts of appeals, where there's very little going on, either...

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    What's Up in the 8th
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