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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

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.

Next week is the last in the current Supreme Court term, and there are still four big decisions to come out of Washington:  one dealing with the admissibility of lab reports under Crawford, which was argued way back in November; the school strip search case; the affirmative action case involving the white firefighters from New Haven; and the extension of the Voting Rights Act.  Should be busy week.

The other notable decision from Columbus was State v. ClinkscaleThe facts are just weird:  in a capital trial, the jury sent a note that one juror believed she couldn't ever vote guilty without more evidence.  After the weekend, the jury reconvened, with a substitute judge presiding, who announced that one of the jurors had been excused.  Although the defense didn't object, no record of the proceedings was made, in contravention to the appellate rules specific command that all proceedings in a capital case be recorded.  What's more, it wasn't clear whether the juror who had been holding out was the one who was removed; after the removal, the jury returned that afternoon with a guilty verdict.  Although Clinkscale escaped the death penalty at trial, the court reverses his conviction, again noting the difference between capital punishment and everything else.

On to the courts of appeals...

Civil.  Trial judge's entry vacating prior order is not final and appealable, despite inclusion of  Rule 54(B) language, 8th District holds... If requested, magistrate must hold a hearing on whether to deviate from guideline-calculated child support figure, says 1st District... 10th District rules that defendant seeking judgment for wrongful imprisonment based upon procedural error -- in this case, a bad search -- need not obtain prior common pleas court determination before filing in Court of Claims... 3rd District, in case of first impression, holds that city ordinance requiring property owner to keep sidewalk in repair does not create duty for landlord under Landlord-Tenant Act, and thus open and obvious doctrine applies... 6th District says that trial court's failure to instruct jury on Ohio Nursing Home Residents Bill of Rights warranted granting of new trial... 9th Circuit says that it wasn't error to deny insurer's motion to vacate judgment, since insurer hadn't even claimed it had meritorious defense...

Criminal.  1st District rules that involuntary manslaughter and felonious assault are not allied offenses... 10th District holds that trial court not required to conduct Daubert hearing before allowing stipulated polygraph evidence; counsel not ineffective for failing to request such hearing... 9th District upholds guilty plea, despite fact that court advised defendant he was facing 2½ years in prison, when he was actually looking at three times that, says defendant didn't show that he wouldn't have entered the plea anyway; try to figure out exactly how he would've shown that... Defendant who pleads guilty cannot raise ineffective assistance of counsel in failing to file motion to suppress unless he claims that voluntary nature of plea was affected by failure to file motion, says 11th District...

Next time, try a time out.  In State v. Arnold, the 2nd District rejects a manifest weight of the evidence claim in a child endangering case where the evidence showed

that [defendant] slammed his son's face into the car because T.A. shut the door on the dog, and that he ripped his son out of bed, choking him, punching him, kicking him, and beating him with a belt, because T.A. called his maternal grandmother from school.

The kid was 11.

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