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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 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. OwensThe 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...

Criminal.  1st District holds that failure of court to impose mandatory fine renders sentence void... 9th District holds that deadly weapon subsection of aggravated robbery statute is not a strict liability offense, requires reckless mens rea; 2 districts have agreed, 7 have gone the other way, and case is pending before the Supreme Court... 8th District says nothing improper in judge's considering fact that defendant was under investigation for child pornography when imposing sentence for sexual battery of child... 10th District rejects challenge to consecutive sentences based on US Supreme Court's opinion in Oregon v. Ice (explained here)... 9th District continues its policy of vacating judgments where sentencing entry indicates post-release control of "up to five years" when full five-year period is mandatory... Disagreement with counsel's strategy not sufficient to grant defendant's request for new counsel, says 12th District... Well, he did come back:  3rd District reverses child endangering conviction for defendant who left his five-year-old daughter in car, with engine running and air conditioning on, for half hour while he went into Wal-Mart, says evidence insufficient...

Civil.  For the umpteenth time, failing to object to evidence at trial after a judge overrules a pre-trial motion in limine does not preserve for appeal the claim of error in denying the motion, as noted most recently by the 12th District... 2nd District says court erred in making father residential parent during summer and mother residential parent during school year, without either parent requesting shared parenting...

Isn't this what FedEx is for?  The attorney mails the complaint to the court for filing on August 28, 2006.  The clerk rejects it because the designation sheet is not filled out completely, and mails it back.  The attorney files the complaint with the completed designation sheet filed on September 10.  Problem?  Yeah:  the statute of limitations ran on September 4.   The trial court grants summary judgment for the defendant, and the 5th District affirms in Norris v. Yamaha.  You can argue that this gives too much preference to following technical rules over deciding cases on their merits, but it's difficult to muster much sympathy for the lawyer.  How do you send a complaint out by ordinary mail a week before the statute runs, and never check to make sure it was received and filed?

Here's some people for the Jerry Springer show.   In State v. Jones, the defendant claimed that his statements should be suppressed because he had been drinking and smoking marijuana before his interrogation, and thus lacked the capacity to waive his Miranda rights.   The 1st District rejected it, noting that Jones had come to the police station on his own.  The court also rejected Jones' claim that the trial judge should have declared a mistrial because the victim caused such a ruckus outside the courtroom that the sheriff's deputies had to Taser him.

Interesting trick.  Mother files a petition for a domestic violence civil protection order against her ex-husband.  The basis?  Father intends to take the children to Haifa, Israel during his parenting time over spring break, an area wife contends is "war-torn and unsafe."  The ex parte order is granted, and at the time of the full hearing, the mother dismisses her petition.  Of course, by that time, spring break is over.  In Hanna v. Keszei, the 12th District dismisses Father's appeal because there's no final appealable order, although noting "we have serious doubts regarding whether a parent's expressed intention to vacation with his children in Israel is sufficient to constitute 'domestic violence' within the meaning of R.C. 3113.31(A)(1)."  Ya think?

Today's ethics question:  If you're a lawyer and your client wants you to do something like this, do you do it?


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