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July 2009 Archives

Buyer's remorse

"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."

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A second look at Foster

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.

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Supreme Court Recap - 2008 Term

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.

Continue reading "Supreme Court Recap - 2008 Term" »

What's up in the 8th

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.

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Case Update

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...

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Closed for Vacation

Finger Lakes 


We'll be open again on July 27.  See you then.

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8th District roundup

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:

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Oregon v. Ice update

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.

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Let's make a deal

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.

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Allied and lesser offenses

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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Case Update

Slight variation from the customary format.  The USSC is closed for the summer, and while there were a couple of decisions from the Ohio Supreme Court on allied offenses, they merit a separate post.  Plus, the 8th District didn't hand down anything earthshaking last week.  So we'll get right to the courts of appeals summary, with the 8th District cases thrown in afterwards.  Tomorrow I'll look at the two allied offense decisions, and the rest of the week we'll spend discussing the US Supreme Court decisions from the past term.

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Anders Briefs

Imagine a defense lawyer getting up in opening statement at a trial and telling the jury:

Ladies and gentlemen, after carefully reviewing all the evidence in this case, I've concluded that my client has no meritorious defenses.  There are a couple of arguments I possibly could make, but they'd be frivolous.  I'll mention them to you, and if my client wants to argue them further, that's up to him.  You give them whatever consideration you deem appropriate.

And with that, the lawyer picks up his briefcase and walks out of the courtroom.

Well, that's the trial equivalent to an Anders brief.

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A new look at child sex cases

It used to be that there was nothing more difficult to defend than an allegation that the defendant had sexually abused a child.  I don't know whether that's changing, but in the past two weeks a jury verdict, a trial court's decision, and three appellate opinions have certainly bucked that trend.

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Yes, Virginia...

...there is a speedy trial statute, and like Christmas, a reversal for violation of it comes but once a year.  Or so it seems.  Well, last week was the time of the season up here by the lake.  In State v. Byrd, the 8th District addressed a plethora of speedy trial issue, among them...

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What's up in the 8th

 The court decided to make trial judges' jobs easier this week, telling them what they need to do in order to impose restitution, charge a jury on a lesser offense, or decide whether to accept a plea.  Plus, a big reversal on speedy trial, which we'll talk about tomorrow, and a reversal on a child sex case, which we'll discuss on Thursday.

Continue reading "What's up in the 8th" »

Case Update

The US Supreme Court finished off its term with the big affirmative action decision in Ricci v. Stefano.  In addition to its legal impact, the decision could have political consequences as well:  it overruled a 2nd District decision in which Supreme Court nominee Sonia Sotomayor had participated.  The Court's ruling won't make it easy for Republicans to argue that Sotomayor was wildly off-base in her ruling -- the decision was 5-4, and Kennedy's majority opinion stressed that the state of the law was "a difficult inquiry" and that the "holding today clarifies how Title VII applies" -- but since that's about the only stick the Republicans have, expect them to use it.  Next week, I'll have my review of the Supreme Court term. 

A couple notable decisions from Columbus.  In Roe v. Planned Parenthood, the parents of a 14-year-old who'd obtained an abortion at the instance of a school teacher who'd gotten her pregnant sued the clinic and sought all medical records, with patient information redacted, of minors who'd had abortions.  The court rejected the request, holding that a litigant has no right to seek medical records of nonparties in a private lawsuit. 

In State v. Trimble, the defendant had killed his girlfriend and her 7-year-old son, then took a hostage and killed her when the SWAT team cornered him.  At Trimble's capital trial, the prosecution introduced 19 firearms that had been found in his home, with an ATF expert identifying each one; the judge subsequently permitted the firearms to be in the jury room during deliberations in the guilt phase.  The court finds this to be error, but an inconsequential one; the firearms were excluded during the penalty phase, by which time I'm sure the jury forgot all about them.  It says here that the Federal court's going to kick that out on habeas.

On to the courts of appeals...

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The viability of Melendez-Diaz

Last week, I discussed the Supreme Court's ruling in Melendez-Diaz v. Massachusetts, in which the Court held that reports of laboratory tests were "testimonial" under Crawford v. Washington, and could not be submitted at trial without the live testimony of the person who conducted the test.  I'd noted that the Ohio Supreme Court had come to the opposite conclusion last year in State v. Crager.  The Ohio Public Defenders Office sought a writ of certiorari in Crager, and any lingering doubts as to the continued vitality of that decision were put to rest by an entry in the US Supreme Court's docket in that case on Monday: 

Motion to proceed in forma pauperis and petition for a writ of certiorari GRANTED. Judgment VACATED and case REMANDED for further consideration in light of Melendez-Diaz v. Massachusetts, 557 U.S. ____ (2009).

On that same day, the Supreme Court also granted cert in another case involving the same subject, and the change in the composition of the Court when it hears that case next year gives some observers concerns about the continued vitality of Melendez-Diaz.

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Pushing the envelope

So I'm at the market the other day, and I run into one of my buddies from the PD's office.  "What's going on?" he asks.

"Oh, I'm upset," I pouted.  "I was thinking of retiring from the practice of law to become a high school principal, but now the Supreme Court comes along and says I can't strip-search 13-year-old girls."

He nodded.  "Trying that line out for your blog?"

"Yep," I confessed.  "What do you think?"

He mulled it over for a moment.  "It works," he finally agreed.

Continue reading "Pushing the envelope" »

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