July 2009 Archives
"Well, we're going to find out how many cases I can competently handle in one day," I told Bill, the prosecutor.
"How many you got?" he asked.
He nodded, then thought for a moment. "I'll take the under."
Since Oregon v. Ice came down in January, I've written numerous posts arguing that the US Supreme Court decision upholding Oregon's law, which permitted judicial factfinding for imposition of consecutive sentences, implicity overruled State v. Foster's conclusion that Ohio's law requiring the same thing was constitutionally infirm. But a closer reading of Ice, and a little inventive reasoning, could lead one to argue that Foster got it completely wrong: there was no problem with Ohio's sentencing law. Here's how that argument goes.
It's that time of year again. Here's my wrap-up of the just-concluded Supreme Court term, focusing on criminal cases and some others of note. They're arranged alphabetically, and include links to the opinions, as well as to other posts I've written discussing them in more detail. (Some weren't discussed at all; in others, I did a post on both oral argument and when the decision came down; and in others, I did multiple posts.)
It might be a good idea to bookmark this post for future reference. If you don't, you can get back here again by putting "supreme court recap" in the search box on the right and clicking "Search." It'll take you to this post, as well as the one I did last year summarizing the 2007-2008 term.
Party-goers in Cleveland will be shocked -- shocked -- to learn that such events often degenerate into gunfights, at least according to the 8th District's most recent spate of decisions. Rare reversals on evidence, one for insufficiency and the other for manifest weight, plus the lesson for judges that if you're going to screw up telling a defendant about post-release controls at a plea hearing, highball it rather than lowball it, are the features this week.
The US Supreme Court's concluded its term, and I'll have a recap of the significant decisions on Wednesday. Down in Columbus, big news for personal injury lawyers, and the doctors/chiropractors/clinics that treat their clients. It's not unusual for a medical provider to have a patient sign a form assigning the provider rights to payment for the medical services against the tortfeasor (and his insurance company). In West Broad Chiropractic v. American Family Ins., the court agrees with the 10th District that such assignments are invalid, although four other appellate districts have held to the contrary. The certified questions were whether an injured party who hadn't established liability for the accident or present right to settlement proceeds, and thus had only a conditional right, could assign that right to the provider, and whether the provider could then bring an action directly against the tortfeasor's insurer. No to both.
The decision in Greenspan v. Third Federal is not interesting for its holding, which is that a private action to recover for the unauthorized practice of law didn't exist until the legislature amended the statute in 2004 to provide for one, but for its procedural history. The court reverses an 8th District decision to the contrary, but notes that the 8th District had decided a case the previous year, Crawford v. FirstMerit, which had come to the opposite conclusion on the same facts. A different panel had decided Greenspan, and had acknowledged the conflict with Crawford, but dismissed it by declaring that Crawford was "simply in error." The Supreme Court chides the 8th for not convening "en banc to settle the conflict between the two decisions."
Properly chastised, let's see what the 8th (and the other districts) came up with last week...
We'll be open again on July 27. See you then.
I know, usually I do the 8th District stuff on Tuesdays. But I'm going on vacation for a week tomorrow, and there's a ton of stuff I've got to do today. I do a weekly post for the listserves of the OACDL and the CCDLA on the 8th District criminal cases, so I'm just going to give you the same thing, and toss in some notable civil cases, too. The Briefcase will be closed next week, and I'll be back the following week with the usual stuff, plus my wildly-anticipated review of the just-concluded US Supreme Court term. Anyway, let's get to it:
I'll be on vacation next week, and I'm going to put off doing a comprehensive review of the USSC cases until after I get back. One of the cases on that list is Oregon v. Ice, and I wanted to get a jump start on that, since that could have a big impact on Ohio sentencing law.
The guy on the elevator shook his head. "Got to get me a new lawyer," he said to no one in particular. "All this one talks about is doin' a plea."
I could relate. I'd worked out what I thought was a good deal in Harry's machete case, but he wanted no part of it.
Last week, the Ohio Supreme Court took another look at the question of when offenses should be merged and when judges should charge on lesser included offenses, and actually clarified both. If you read that and felt that you'd been transported to a parallel universe in which Ohio law actually makes sense, well...
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