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Case Update

The saga of State v. Crager comes to a conclusion.  Sort of.  For those late to the party, the Supreme Court held in Crager that testimony by a DNA analyst who wasn't the one who actually performed the test didn't violate the defendant's confrontation rights, because scientific tests weren't testimonial under Crawford v. Washington.  This past summer, in Melendez-Diaz v. Massachusetts, the US Supreme Court held that they were.  SCOTUS also remanded Crager back to the Supreme Court for reconsideration in light of Melendez-Diaz. 

My post a month ago (which has links to previous posts discussing the two decisions)  suggested how the Ohio Supreme Court might handle this.  "Punting it back to the trial court" wasn't one of the options I foresaw, but last week, that's exactly what the court did, deciding to let the trial court "address the admissibility of the DNA evidence admitted at the trial in light of the holding in Melendez-Diaz v. Massachusetts." 

What's to address?  The facts aren't in dispute; it's purely a question of law, and one which should be addressed by the highest court of the state.  The court did the same thing in 2007, in State v. Oliver (discussed here), where the court considered SCOTUS' decision in Michigan v. Hudson, which had held that the exclusionary rule didn't apply to violations of the "knock and announce" rule.  Despite determining that because "the people of Ohio have a paramount interest in knowing how their courts will interpret and apply Hudson, we have a duty to see that Hudson is addressed as expeditiously as possible," the court remanded the case back to the trial court to "reconsider its ruling in light of Hudson."  So what happened?  The defendant pled out, got six months in jail, and almost three years later there's still no definitive ruling on Hudson's application. 

The appellate courts did actually address some issues, so let's take a look at those...

Civil.  1st District holds that police officer's failure to determine whether protective order had been served on defendant before filing criminal complaint does not give rise to action for malicious prosecution... 5th District says court doesn't have authority to impose shared parenting plan if neither party requests one... 7th District holds that numerous factors, including mother's remarriage to husband who didn't facilitate children's visitation with father, were sufficient "changed circumstances" to warrant hearing on motion to modify custody... Lengthy and very good explanation by 2nd District of factors to be considered in granting grandparent visitation.

Criminal.  In two more cases, the 9th District reiterates its position that a failure to properly impose post-release controls in a judgment entry renders the conviction void, and prevents the appellate court from considering any other assigned errors... 5th District says trial court not required to inform defendant at plea hearing that jury verdict must be unanimous; so has every other court which has addressed issue... 9th District notes that Ohio law provides that issuance of capias for probation violation tolls the probationary period... 12th District grants new trial, says counsel was ineffective for failing to object to hearsay statements... 7th District upholds 20-day jail sentence for contempt of court for defense lawyer in murder case; numerous transgressions included repeatedly asking irrelevant questions, and telling jury after it returned guilty verdict that he had tape of confession by "real murderer"... 8th District reverses court's dismissal of indictment, says that dimissal isn't warranted as long as indictment states an offense; criminal rules do not provide for summary judgment.

More AWA nonsense.  For the crime of sexual misconduct with a minor -- having sex with someone who's between 13 and 15 -- consent isn't at issue.  Under the Adam Walsh Act, though, a person convicted of that crime is a sex offender who has to register if the sexual conduct was "non-consensual," and doesn't have to register if it was.  So does that mean that a court must conduct a hearing to determine whether the defendant's conduct was nonconsensual, even if it wasn't an element of the crime?  Yes, says the 9th District in State v. Battistelli.  Uh, guys, there's another term for nonconsensual sexual conduct with a minor -- or with anyone else, for that matter.  It's called "rape."

Putting the best slant on things.  In State v. Flowers, the 8th District concludes that there is some basis to the defendant's assignment of error of prosecutorial misconduct.  Like this, for example:

The prosecutor's statements in which he claimed that [witness] Jovon Whitfield attended a special needs school was not exactly accurate because the prosecutor was implying that Whitfield was a special needs student when the testimony reflects that he had behavioral problems (i.e., 'cussing at people').

Not enough basis, though; Flowers' conviction was affirmed.


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