Coming soon to a courtroom near you
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:
State v. Arnold (link is to appellate decision): Another foray into Crawford: question is whether child rape victim's statement to social worker is testimonial. Court has previously held that issue is whether purpose of interview is to collect facts for prosecution, and test to be employed depends on who's doing the questioning: if statement is to law enforcement agent, issue is determined from agent's perspective, if not to law enforcement agent, issue is determined from witness's perspective. Lower court held second test applied, affirmed conviction.
State v. Underwood: Defendant pleads guilty to two offenses and agreed sentence. Does agreement as to sentence bar him from appealing issue of whether offenses are allied? Four districts have held that it does, 2nd District disagreed, Supreme Court will sort it out. Kicker is that in 2nd District case, defendant was given concurrent time, so it's possible court will kick case out on an ADIG (appeal dismissed as improvidently granted) without reaching issue.
State v. Whitfield: Defendant convicted of both trafficking and drug possession, 8th District says they're allied offenses, remands back to trial court with instructions to vacate conviction for possession. State appeals, arguing that conviction can stand, defendant just can't be sentenced on it. If I had to bet on the State losing any of these, this would be the one. Actually, proper procedure would be to remand and allow the prosecution to decide which count to convict on, vacate the other one.
State v. Smith: If the cops bust someone and lawfully seize his cellphone, can they search the contents -- SIM card, calls made, etc. -- without a warrant? Defense argued that phone was similar to a "closed container," and therefore required warrant, but 2nd District wasn't buying.
State v. Williams: Are felonious assault and attempted murder allied offenses? It may be that the court has decided that the best way to clarify allied offense law is simply to rule on every possible permutation of offenses. I don't know how many there are, but if I were writing a math blog, I bet I could figure it out.
State v. Jackson: You're a public empl0yee, and your employer comes to you and demands that you make a statement (which will incriminate you) or you'll get fired. Back in 1967, in Gerrity v. New Jersey, the Supreme Court held that the statement couldn't be used against you in a criminal trial. In Jackson, the defendant police officer had made a statement to internal affairs, and subsequently learned that the statement had made its way into the prosecutor's file, and the State had interviewed a witness identified in the statement. The argument by the State here is that while Gerrity prohibits the direct or derivative use of the statement, it does not prohibit a prosecutor's mere knowledge, or non-evidentiary use of it. Whatever that means.
State v. Lupardus: Back in State v. Geeslin (discussed here), the court held that police destruction of potential exculpatory evidence (in that case, a videotape) wasn't a due process violation unless the defendant could show that the destruction was done in bad faith. Lupardus tackles a question left unresolved by Geeslin: the effect of a defendant's demand to preserve the evidence. A number of appellate districts have held that if the evidence is destroyed after the request is made, bad faith will be presumed, and the State has to introduce evidence to overcome that presumption.
State v. Jordan: The escape statute provides that a failure to show up for a meeting with your parole officer is a violation. But what happens if you the judge didn't properly impose post-release controls, rendering the sentence void? The 3rd District, in Jordan, said all that matters is whether you're actually under detention; the propriety of the detention is irrelevant. The 9th District came to the opposite conclusion the year before in State v. North, so the court will resolve the conflict.
And let's not leave out the civil cases:
Hall v. Akron Gen.: A medical malpractice case involving res ipsa loquitur. I once had an elevator fall case in which the doctrine might, or might not, have been applicable, depending upon which case you read, and I read them all, and all it did was make my head hurt. But that's why the crew down in Columbus gets paid the big bucks.
Lambert v. Hartmann: Last year, the 1st District reversed the dismissal of a suit against the county clerk's office which alleged that the clerk violated the Ohio Privacy Act by publishing the plaintiff's speeding ticket, including her social security number, on the court's website; plaintiff's identity was stolen as a result. The court got around the sovereign immunity statute by holding that the clerk's actions were wanton and reckless.
Beckett v. Warren: Another dog-bites-man story. Actually, dog bites little girl, mother sues, at trial court forces her to choose between pursuing statutory claim for dogbite (which provides for strict liability) or a common-law negligence claim (which doesn't provide for strict liability, but does allow evidence of prior bites and an award of punitive damages). The 9th District reversed, saying the plaintiff didn't have to make an election and could pursue both theories. The 6th District came to the opposite conclusion, and the case law is about as muddled as that of res ipsa loquitur, so maybe the court will provide me some clarity on this as well.