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.
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