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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

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...

Criminal.  10th District says that involuntary manslaughter and aggravated robbery aren't allied offenses, which is exactly what Supreme Court held in State v. Rance, 10th says that subsequent Supreme Court decision in Cabrales didn't overrule that... 5th District reaffirms rule that court need not inform judge of unanimity requirement for jury verdict in order for jury waiver to be valid... Uncounseled misdemeanor cases still count as conviction of other offenses for expungement purposes, says 8th District... 11th District upholds maximum sentence in drunk-driving case involving death of 2-year-old, says judge did not abuse discretion in allowing police chief to testify as to effect scene had on police officers as "victim impact" evidence... 2nd District rejects ineffective assistance of counsel claim based on failure to object to all-white jury... Defendant causes accident rendering victim a quadriplegic, pleads guilty to aggravated vehicular assault; victim dies 17 years later, 11th District says defendant can't be tried for aggravated vehicular homicide unless state specifically reserved right to do so at plea hearing in first case...

Civil.  Plaintiff in will contest must obtain service on all the defendants within one year in order for court to have jurisdiction, 10th District holds... 11th District holds that plaintiff who entered door to office building despite sign telling her to use alternative entrance was still an invitee, not a trespasser, but nonetheless affirms summary judgment for defendant on open and obvious doctrine... Plaintiff voluntarily dismisses a case an hour before trial, 6th District says trial court without jurisdiction to consider defendant's motion for sanctions...

Sure they did.  State v. Matz was a drunk driving prosecution with a prior conviction.  The 5th District finds that the introduction of the prior conviction was error, since it included a notation that it was the defendant's third offense of DUI, and that her blood-alcohol reading was .181, but decides that it was harmless because the jury was instructed to disregard the extraneous material.

Don't forget the one about quartering troops.  Ever wonder why even experienced trial judges uses those little cheat sheets for taking pleas?  In State v. Maffias, the trial court had advised the defendant at the plea of

(1) a right to trial by jury; (2) the right to cross-examine witnesses that would testify against him; (3) the right to have the state of Ohio prove appellant's guilt beyond a reasonable doubt; (4) the right to choose not to testify at trial; (5) the right to bear firearms; and (6) the right, for all practical purposes, to appeal.

The 6th District reverses, noting that the judge kinda forgot to advise the defendant of his right to compulsory process for witnesses.  And this was after the court had assigned new counsel to handle the appeal; the original attorney had filed an Anders brief.

Technology marches on.  Note to pedophiles:  it's probably not going to help your case if when the police come to search your apartment, they find a picture of the victim as the screensaver on your computer.


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