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Case Update

It's fairly well acknowledged that the war on drugs has done a serious number on the 4th Amendment, but one of the weapons in that war, forfeiture, has pretty much eviscerated the 5th Amendment's prohibition on taking private property without due process.  Last week, the Supreme Court heard oral argument in Alvarez v. Smith, an appeal of the 7th Circuit's decision striking down an Illinois law's provision that police can seize property that may have been involved in a drug-related crime and hold it for up to 187 days without a hearing.  From the tenor of the questions, though, it appears possible that the Court could dismiss the case as moot, since the property's been returned.  Given the concern expressed by some of the judges that affirmation of the decision could "unduly hamper" the police, that may not be a bad thing.

The other notable argument was in Padilla v. Kentucky, involving an ineffective assistance of counsel claim due to a lawyer's incorrect advice that his client's guilty plea would have no effect on his immigration status.  A couple years back, the Court granted cert in a case where the 9th Circuit had given habeas relief to a defendant who argued that his lawyer screwed up by not advising him to take a plea, but that case was resolved before the Court could decide it.  An extension of the Strickland standard into cases of misadvice, rather than derelict trial performance, would be a big step, and it's not clear that the Court's willing to take it.

Nothing happening in Columbus, other than a disciplinary decision which (a) warns about the consequences of representing multiple parties, and (b) gives further evidence of the court's inclination to punish mere negligence as misconduct.  The attorney in Columbus Bar v. Mangan had agreed to represent a father and his son and daughter-in-law in a foreclosure action, but never consulted the latter two, believing the father's claims that he was acting on their behalf.  Turns out he wasn't, and the couple filed a bar complaint after they found the house had been sold at sheriff's auction.  They didn't lose any money as a result, and everybody agrees that this didn't result from "anything other than carelessness," but he gets a public reprimand nonetheless.

In the courts of appeals, not much happening either...

Civil.  6th District upholds judge's decision not to award attorney fees in divorce case, agrees that despite parties' disparity in incomes, each had sufficient assets to pay their own fees... Jury comes back after 25 minutes of deliberation with a defense verdict in a medical malpractice case, court says that doesn't indicate jury lost its way, warranting new trial...  10th District holds that no-smoking statute for bars is not strict liability, if bar does everything it can to prevent smoking, it's not liable...

Criminal.  If parties agree to restitution of $2200 in misdemeanor theft case, court can order it even though maximum amount for conviction is less than $500, says 8th District... Great case from the 12th District reversing a conviction of sexual imposition; trial court erred in joining cases, allowing 404(B) evidence... 9th District upholds search on basis that officer had reasonable suspicion of criminal activity, never even discusses whether there was basis for frisk which discovered drugs... Act of having victim touch penis, defendant's touching breast, and touching her vagina with penis after ejaculating, were three separate acts warranting three convictions of gross sexual imposition, although they all occurred in same incident, says 3rd District...

Yeah, surrrre.  In State v. Sims, the 12th District decides that the trial court didn't err in deciding that the defendant had the financial ability to pay an $86,864.72 restitution order on an aggravated vehicular homicide conviction.  The record showed that defendant would be 33 when he got out of prison and had a GED.  The court notes that while the trial judge imposed a lifetime drivers suspension, which "may have an impact on [defendant's] future earning ability. . . there is nothing in the record which would indicate that appellant would be unable to obtain some type of employment upon his release from confinement."  Is that even the question?  You think there just might be a difference between "obtaining some type of employment" and "obtaining employment which will allow him to pay back almost $90,000"?

About time.  State v. Tall is an appeal from defendant's conviction of aggravated burglary.  Tall's lawyer files an Anders brief, asserting that she can't find any meritorious issues; this is the 4th Anders brief she's filed in the 13 appeals she's handled, all of them from jury verdicts.  The 6th District finds that conflicting evidence was presented as to whether Tall had privilege to enter the residence, and as to whether the trial lawyer should have asked for a charge on the lesser offense of burglary.  These issues are not "wholly frivolous," so the court appoints someone else to prosecute the appeal.  The court notes that "rarely will an Anders brief be appropriate for appellate review of a jury trial," and goes further:

Anders equated a frivolous appeal with one that presents issues lacking in arguable merit.  An issue is not lacking in that regard merely because the prosecution can be expected to present a strong argument in reply.  An issue lacks arguable merit if, on the facts and the law involved, no responsible contention can be made that it offers a basis for reversal. In appeals as of right, defendants are entitled to an appellate brief which advocates on the defendant's behalf.

That's something to remember if you're going to do appellate work.  Kudos to the 6th District, and kudos to Judge Mary Jane Boyle of the 8th, who was sitting by assignment and wrote the opinion.


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