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Case Update

Abbreviated schedule here this week; I'll have the Case Update today, the 8th District decisions tomorrow, and some stuff on the US Supreme Court's new term, including the latest cert grants, on Wednesday.  That'll wrap it up for the week. 

On Friday I mentioned the one decision out of Columbus, Oliver v. Cleveland Indians, which upheld the $250,000 cap on compensatory damages against a political subdivision.  In State v. Hoover, the court votes 4-3 to uphold the constitutionality of RC 4511.19(A)(2), which imposes an additional ten-day mandatory jail sentence upon someone who refuses to consent to a breath test for drunk driving, and who has had a prior DUI conviction within the past 20 years.  The basis for the majority's opinion is that refusing to consent isn't a crime -- and court has repeatedly said making it one is impermissible -- it's just an element of the crime.  Justice Pfeifer, in an unlikely alignment with Chief Justice Moyer and Justice O'Donnell, makes a fairly compelling case in dissent that this purported distinction is meaningless.

State ex rel. Cordray v. Marshall involves an interesting and unusual situation.  The defendant, Rawlins, was convicted of murder in 1997.  He appealed, arguing that the court should have instructed the jury on voluntary manslaughter, a contention that was rejected.  In 2005, Rawlins filed a "motion to vacate" his conviction with the trial court, making the same argument.  A new judge had taken over from the one who'd heard the case, and granted the motion, sentencing him to ten years, then granting judicial release; this was done with the local prosecutor specifically stipulating that he had no objection to it.  No matter; the attorney general filed a writ of prohibition, and the Supreme Court agrees not only that the judge lacked the power to do what he did, but that the attorney general, as the top law enforcement officer in the state, had standing to complain about it.

And in the courts of appeals...

Civil.  Whether object was "reasonably discernible" for purposes of assured clear distance statute was question of fact, says 1st District, reversing summary judgment... 9th District rules that hump in carpet was open and obvious, affirms summary judgment for defendant store... Involuntary dismissal without prejudice is not an appealable order, says 7th District... 5th District rejects contention by husband that he is entitled to custody of frozen embryos, says parties bound by agreement with fertilization clinic that clinic would retain possession... 9th District holds that postnuptial amendment to antenuptial agreemeent is void and unenforceable as a matter of law... Where default judgment wasn't a final appealable order because court hadn't had hearing on damages, ruling denying motion to vacate wasn't a final appealable order, either, 5th District rules...

Criminal.  Although prosecutor and defense stipulated to proceeding with 11 jurors, trial court didn't abuse discretion in declaring mistrial, 2nd trial not barred by double jeopardy, says 8th District... So close, yet so far:  5th District correctly states that Crawford doesn't apply when person who made out-of-court statements testifies, then screws it up by saying that Crawford only to hearsay statements that aren't subject to an exception... 4th District says that defense witness who testified that mother was addicted to drugs didn't open the door to cross-examination as to mother's drug trafficking convictions... 6th District holds that service of protection order is not an element for violation of the order... 6th District upholds 43-year sentence for 5 counts of aggravated vehicular homicide, says offense is strict liability not requiring specific mens rea... Defendant indicted in July 2006, no attempt to arrest him until June 2008, 5th District affirms dismissal for lack of speedy trial...

En banc (in)formalities.  In the 9th District's decision in State v. Knepper, the trial court had given the defendant, a nurse, treatment in lieu of conviction.  The state appealed, arguing that a nurse is in a "position of trust," and is thefore ineligible for treatment in lieu.  That argument had been rejected earlier this year by the 9th in State v. Massien, and the current panel feels that Massien was wrongly decided.  But after undertaking "an informal en banc review of the issue raised in this case and Massien," the court decides that Massien should remain the law, and affirms the judge's decision.  Massien is presently pending before the Supreme Court. 

A picture is worth a thousand words.  In State v. Martin, the defendant was convicted of drug trafficking, based on drugs found in jacket when he was transported to hospital after being shot.  He claims that drugs could've belonged to other guy in the car.  That defense would probably have received a more sympathetic hearing if not for the the fact that also found in the jacket was a cellphone "depicting Martin's image flashing large amounts of cash."

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