August 2009 Archives
Two weeks ago, I was whining about the lack of decisions from Columbus; now, I'm whining because there's so many. Make up my mind, why don't I.
Reach out and touch someone. I ran into one of my buddies in the prosecutor's office the other day. He'd been the subject of a laudatory editorial in the Plain Dealer the other day. He was handling a rape case -- a particularly nasty one; the victim was retarded -- in which the defendant had filed a motion to dismiss, attached to which was an affidavit from the victim recanting her allegations. On a hunch, he had the sheriff's office pull the recordings of the defendant's telephone calls from the jail, and sure enough, there were calls from the guy instructing several family members to kidnap the victim and force her into signing the recantation.
One of the major goals of capital punishment opponents has been to offer penalty alternatives to death, one being life imprisonment without parole. As I mentioned three years ago, studies have shown that the availability of LWOP has had virtually no effect on the imposition of the death penalty. What's more, the law of unintended consequences has raised its ugly head: life without parole is now available for a number of non-capital crimes, such as, in Ohio, rape of a child. Almost 10% of the prison population is serving a life sentence, and, of those, 29% have no possibility of being paroled.
In a little more than a month, the US Supreme Court will open its term by hearing oral argument in two cases involving a segment of that population: the more than 2,225 people who were sentenced to life without parole for crimes they committed as juveniles.
The Columbus Seven's summer fiesta ends next week, with a full slate of oral arguments running well into October. Here's a gander at the cases I'll be writing about sometime in the near future:
If you wind up on trial for murder, it's best if the prosecution is not able to introduce a picture from your MySpace page showing you holding a gun, next to the inscription, "Pow! One in the head, now you're dead." This was one of the lessons provided by the 8th District's decision this past week in State v. Greer.
The only real decision from Columbus this past week was one imposing an indefinite suspension upon a lawyer for, among other things, a child pornography conviction. According to the attorney's doctor, the attorney suffered from paraphilia, defined as "a condition generated by the clash between individual sexual interest and social rules governing sexual behavior." Hmmm. The lawyer in a disciplinary case last year was similarly diagnosed -- by the same doctor -- and it prompted him to try to arrange a sexual liaison with minor who, to nobody's surprise except his own, turned out to be a police agent.
Earlier this year in State v. Pasqualone, the court had upheld RC 2925.51, which allows a report of a drug test to be admitted if the defendant is served with a copy of the report and doesn't demand the analyst personally appear to testify. Such "notice and demand" statutes received approval by the US Supreme Court in Melendez-Diaz v. Massachusetts (discussed here). The Ohio Supreme Court was holding a case on the subject, awaiting the result in Melendez-Diaz; last week, it issued the decision in the case, affirming it on the basis of Pasqualone.
The only other "decision" of note was State v. Owens. The Supreme Court Rules of Practice specify that when a county prosecutor files a notice of appeal to the Supreme Court, he has to serve a copy on the Ohio Public Defender. The court has warned prosecutors twice this year already about failing to comply with the provision. The Montgomery Mahoning County prosecutor's office fails to do it, and the court decides that perhaps dismissal will accomplish what exhortation has not.
In the courts of appeals...
Something for the Crager court to read. The other day I talked about the Ohio Supreme Court's impending reconsideration of their decision in State v. Crager, in which they held a defendant's confrontation rights weren't violated by testimony about a DNA result by an analyst other than the one who'd actually performed the test. Central to that decision, and to the US Supreme Court's apparently contrary conclusion in Melendez-Diaz v. Massachusetts, was that the reliability of scientific evidence made cross-examination unnecessary.
Brandon Mayfield could probably tell them something about that.
In 1991, Troy Davis was convicted by a Georgia jury of killing a policeman two years earlier, and sentenced to death. No gun was found, no forensic evidence linked Davis to the shooting, and within a few years seven of the nine witnesses against him had recanted, claiming that they'd been coerced into making false statements by the police; several stated that the real shooter had been the man who'd originally fingered Davis to the police.
Back in April, I chastised the 8th District for its decision in State v. Norman. On further reflection, I should have kept my mouth shut.
The constitutional ramifications of "hey little girl, want some candy?" are the centerpiece of this week's work by the 8th District, as misdemeanor defendants fared very well, civil appellants did pretty good, but felony defendants... not so much.
Summertime... and the blogging is easy... Actually, no, because there's not that much to write about. The only "decision" of consequence by the Ohio Supreme Court this past week was the dismissal of the appeal from the 8th District's decision in State v. Garltic. The backstory is that Garltic had been charged with felonious assault and attempted murder in a stabbing. The jury had found him guilty of the latter, but guilty of the lesser offense of aggravated assault.
Garltic argued that his lawyer was ineffective for not asking for a lesser instruction on attempted voluntary manslaughter, and the 8th agreed: since the jury had found serious provocation in order to convict of aggravated assault, it would have found serious provocation to reduce the attempted murder charge as well. It remanded the case with instructions to retry Garltic for attempted voluntary manslaughter. The State appealed it, the defense tried to get it dismissed, and after much Sturm und Drang, the State moved to dismiss the case: turned out Garltic was brought into court a couple of weeks ago, pled guilty to amended charges of aggravated assault and attempted voluntary manslaughter, and, having served his sentence, was sent on his way. The Supreme Court agreed to dismiss, and there's one less case I'll have to write about down the road.
On to the courts of appeals...
More on sex offenders. The constitutionality of Ohio's Adam Walsh Act, the latest effort to impose ever more Draconian sanctions on sex offenders, is presently pending before the Supreme Court in State v. Bodyke. The odds for setting aside the law are grim, every appellate district in Ohio having rejected various constitutional challenges to it. As I've written on numerous occasions, the efficacy of such laws are doubtful, but anymore, an equally compelling argument can be made that they're just plain stupid. Under Ohio's statute, for example, sexual imposition, a third degree misdemeanor, is a Tier I offense, meaning the offender has a 15-year registration and reporting requirement. Groping a woman's buttocks in a bar can you get you convicted of that offense.
Nancy Smith and Joseph Allen were convicted of numerous child rape counts back in 1994, and essentially sentenced to life in prison. The Ohio Innocence Project had gotten involved in the cases, and planned on filing a motion for new trial. In June, Lorain County Common Pleas Judge James Burge stunned everyone by granting a judgment of acquittal in the case and ordered Smith and Allen freed.
He probably should have waited...
Early last year, in State v. Crager (discussed here), the Ohio Supreme Court held that the testimony of laboratory analysts wasn't subject to Crawford v. Washington: the defendant did not have a right to confront and cross-examine the person who actually performed the test. A few months ago, in Melendez-Diaz v. Massachusetts (discussed here), the US Supreme Court held that Crawford did in fact apply to laboratory tests, and that the state could not simply submit an affidavit of the test results: the defendant was entitled to cross-examine the tester.
Crager had been appealed to the high court. Two weeks after Melendez-Diaz, the Court did what's known in appellate parlance as a GVR on Crager: it granted certiorari, vacated the decision, and remanded the case back to the Ohio Supreme Court for further consideration in light of Melendez-Diaz.
At least one person thinks that's not going to change the outcome in Crager.
A couple of good criminal decisions, a couple questionable ones, and I'll even talk about a civil case this week, as I wade through the two dozen or so decisions handed down by the 8th last week.
Only one decision from the Ohio Supreme Court this week. We all know that insurance doesn't cover intentional torts. If you punch your neighbor in the mouth, your homeowner's policy isn't going to cover you. But what if your kid punches the neighbor -- or, in this case, stabs her -- and the neighbor sues you for negligently supervising your kid? That's the situation presented in Safeco Ins. Co v. White, and the court concludes that the definition of "occurrence" in the policy has to be construed from the standpoint of the individual insured: while the kid's actions were unquestionably intentional, the parents' actions were merely negligent, and thus they were entitled to coverage.
While Safeco is nominally a 5-2 decision, it's really 4-3. The focus of Justice Cupp in his concurrence, and in the dissent by Justice O'Donnell, joined by Justice Lundberg Stratton, was on exclusionary language of the policy (actually two: a homeowners and an umbrella policy): the former excluded coverage for injuries "arising out of any illegal act committed by... an insured," while the latter excluded injuries resulting from "any act... intended by any insured." The dissenters found this unambiguously excluding coverage for all insureds if any of them acted intentionally. Cupp found the provisions ambiguous, but helpfully suggested a phrasing that would not be. Look for it to become a regular feature of policies, and the issue to be relitigated further.
On to the courts of appeals...
Talk about environmental "impact." If your first thought at looking at this picture of California's Cold Spring Canyon Bridge was, "Boy, I'd sure like to jump off of that," you're not alone: at least 47 people have committed suicide by doing so since it was built in 1963. To discourage this, the state's decided to install suicide barriers, but a lawsuit has been filed to stop that:
Friends of the Bridge, an informal group of community members opposed to the barrier concept, cited three specific violations of state environmental law and asked Caltrans to set aside its approval of the $3 million project.
I'm betting that the "Friends" are people who don't live under the bridge or, as it might termed, "in the line of fire." Of course, Cold Springs Canyon places far behind the Golden Gate Bridge as the premier suicide destination in the world. Pretty much all you need to know about the mentality of suicide jumpers is summed up in these two figures: 80% of the suicides on Golden Gate occur during the day, and 82% of them jump from the side facing the city.
It's unusual when the Supreme Court hands down three major 4th Amendment decisions in the same term. It's more unusual when one suggests a major limitation on the exclusionary rule, while another is one of the most pro-defendant cases in recent memory. And it's just damned weird when Antonin Scalia, who penned his own diatribe against the exclusionary rule just a few years back in Hudson v. Michigan (discussed here), provides the 5th vote for the pro-defendant case. In light of all that, it might be appropriate to ask where the Court is headed on search and seizure issues.
You'll remember that after the Supreme Court's decision in District of Columbia v. Heller, affirming an individual 2nd Amendment right to bear arms, I made all sorts of predictions about how this was going to have a major impact on gun regulations. As recapitulated here, none of them turned out to be remotely accurate; the courts' disinterest in the subject culminated this term in US v. Hayes, a case potentially rife with 2nd Amendment issues, yet which produced a Supreme Court oral argument and opinion in which neither the Amendment nor Heller was even mentioned.
Well, the times they may be a'changin'.
Here's what was on tap in the appellate cases last week...
Slight change of schedule. The Columbus Seven came down with several notable opinions, so we'll discuss those today. The 8th had a slow week, so instead of doing a post on those decisions tomorrow, we'll combine them with a case update for all the appellate decisions from last week. On Wednesday and Thursday, we'll discuss some stuff left over from the US Supreme Court's last term.
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