November 2009 Archives
As you're reading this, there might be an opinion coming down from the US Supreme Court; only twice since 1968 has the court started a term without issuing a decision before December. The Court has issued three per curiam reversals, one of which we'll talk about on Wednesday. The big attraction in DC, though, was the filing of the amicus briefs in McDonald v. Chicago, the case involving the application of the 2nd Amendment to the states. (If you have more time than you know what to do with, a full list of the amicus filings is here, with links to the briefs.) For those of us who are into constitutional law, the most interesting aspect of the case is the attempt to revive the 14th Amendment's Privileges and Immunities Clause as a means of incorporating the Bill of Rights. The Clause was rendered moribund by some post-Reconstruction decisions, which most scholars now regard as horribly reasoned; the Court instead adopted the amendment's Due Process Clause as the vehicle for incorporation. And it also looks like the Court in McDonald, unlike in Heller, will have to tackle the question of whether gun regulations will be subject to strict scrutiny, the rational basis test, or something in between.
Nothing going on in Columbus, and little else percolating in the courts of appeals. A look...
Back on December 17, 1999, 76-year-old Dorothy Brown was discovered dead in her apartment in Shaker Heights. She'd sustained a fractured skull as well as about two dozen other injuries, some defensive. Although she was nude from the waist down, there were no signs of a sexual assault. Almost a year later, David Ayers, a "special police officer" who help provide security for the complex, was convicted of her killing. He's spent a lot of time trying to overturn that conviction, but hasn't had much luck. Until last week.
If you're looking for the Case Update, it's right below this post. Since I'm going to be off, like everybody else, on Thursday and Friday (no Briefcase), I'm going to hold off the normal discussion of 8th District cases until next Tuesday. Not that there weren't any last week, but there aren't going to be many this week -- normally, the decisions come out on Thursday, and that's not likely to happen. So we'll just hold off for a week. I will have a post on one of them tomorrow. Then we'll do a Wednesday (instead of Friday) wrapup, and then I'm off to stuff my face.
While there are several big cases waiting down the road in DC, this week did not see any of them; the biggest was the Court's decision not to review a challenge by an American Indian group to the Washington Redskins mascot.
Down in Columbus, four decisions of consequence (to me, anyway), though none of them earthshaking. In Mynes v. Brooks, the court holds that an order granting or denying arbitration is immediately appealable, even when there are other parties in the case not subject to the arbitration provision, and even when there's no 54(B) language in the journal entry. In State Farm v. Grace, the court holds that the 2001 amendment to Ohio's uninsured motorists law allows insurance companies to exclude from UM claims any money paid under the medical payments coverage; three Supreme Court decisions prior to the amendment had forbidden the practice.
State v. Robinson involved an assault in which the defendant had smashed the victim's cell phone while the latter was trying to call the police. He was charged and convicted of disrupting public services under RC 2909.04, but the 4th District reversed, concluding that the statute prohibited only "substantial" interference with public emergency systems, not the destruction of a single phone. Other courts had concluded to the contrary, and the Supreme Court unanimously sides with them and reinstates Robinson's conviction.
A spirit of togetherness also imbued the court's decision in State v. McCausland. The case involved a drunk driving charge tried to the bench, and at the conclusion of the the evidence, the judge summarized the testimony in detail and -- there's a surprise -- found McCausland guilty. McCausland appealed, arguing that his attorney had been denied the right to present closing argument. There's some good case law out there holding that closing argument is a vital aspect of the constitutional right to present a defense, and denial of it is error, but none of that case law holds that the right can't be waived. The Supreme Court, as did the 12th District, concludes that the attorney did just that by not asking for closing, or objecting to the judge's proceeding to a decision.
Last, State v. Crager rears its head again. In Crager, the court had allowed one lab analyst to testify to the DNA results obtained by another, finding that laboratory tests didn't fall under Crawford. The US Supreme Court decided the latter question to the contrary last summer in Melendez-Diaz v. Massachusetts, and two months ago the Ohio Supreme Court vacated its decision in Crager and remanded the case to the trial court for determination of how or whether Melendez-Diaz applied to the particular facts of the case. At the time, I questioned the sense of that, arguing that the court itself should make that determination, since it presented solely a question of law. No doubt chastened by my stinging rebuke, the court reversed itself, last week granting a motion for reconsideration and ordering the parties to brief that issue.
In the courts of appeals...
Guess he never watches CSI. While the discovery of eleven bodies, apparently raped and murdered, in Anthony Sowell's house here in Cleveland has generated nationwide attention, local controversy brews over the failure of the police to follow up on an incident in December of 2008, when a woman flagged down officers and claimed that Sowell had beaten and choked her. Although Sowell was arrested, charges were never pursued against him. He went on to allegedly kill five more women before he was finally apprehended last month.
Last week I gave a seminar on allied offenses, and the guy who spoke ahead of me -- a law professor -- did a talk on Crawford. Most of his presentation was devoted to a recap of recent Ohio cases on the subject, and he confessed that he found it difficult to understand some of those cases in light of the language of Crawford and the Supreme Court's subsequent decisions in that line. (One of the decisions he mentioned was State v. Young, a particularly dreadful decision, as I noted here.) After he was done, I told him that understanding the results in those cases is easy: you just have to start from the premise that appellate courts will come up with just about anything in order to affirm a conviction.
That's especially true in 4th Amendment cases. A couple months back, I was mildly critical of an 8th District case, suggesting that it went a bit beyond what the 4th Amendment required. I've felt bad about that ever since, because just about every day courts come up with the most convoluted rationales for upholding a search. There were two of them just last week.
Last year in District of Columbia v. Heller, the Supreme Court declared that the 2nd Amendment provided for an individual, rather than collective, right to bear arms. That left open the question of whether the Amendment applied to the states, DC being Federal territory. On Monday, lawyers for four Chicagoans filed a brief arguing that the Amendment did indeed apply to both state and local laws, and that Chicago's gun laws -- which ban weapons almost as effectively and completely as the DC laws struck down in Heller -- run afoul of an individual's constitutional rights.
A battle for gun rights was also brewing on the lakefront here in Cleveland, and last week the 8th District held upheld the city's firearms laws in Cleveland v. Ohio. That might prove to be merely the last gasp of gun control proponents, though.
A possible new starring vehicle for Damon Wayans, the court looks sympathetically, if naively, upon those faced with the prospect of re-entering society after a prison sentence, and the "one stab, one count" theory goes by the wayside.
Gee, thanks, guys. Back in August, I mentioned State v. Lupardus in a post about upcoming oral arguments before the Ohio Supreme Court. When that notable event took place less than a month ago, I devoted an entire post to it. So this past Thursday the court decides that it never should have taken the case in the first place, and dismisses it as improvidently granted.
Not much else of significance out of Columbus, and of course no decisions in the new term of the US Supreme Court. SCOTUSblog, however, informs us of a new Supreme Court database, which you can find here, and which will allow you to answer questions like, "In how many criminal law cases did Justice Brennan and Chief Justice Burger vote the same way?" Certainly not as fascinating a question as how many intentional walks Roger Maris received the year he broke Babe Ruth's home run record (see below), but there you go.
On to the courts of appeals, who don't have the option of deciding that they don't want to hear a case...
Yesterday I wrote that the Supreme Court's considering a modification to the Criminal Rules which would permit "open discovery," i.e., a full exchange of information between the parties in a criminal case, and briefly covered how those rules are changed. Today we'll take a closer look at some questions and problems that might arise if the rules are adopted.
Trying to think of ways to spend the upcoming weekend? You could rake those leaves and get the lawn in final shape for the upcoming winter, in which one gloomy day will follow another until by about mid-February you're contemplating opening a vein just so you can see some color. Or you could plop yourself in front of the TV and watch football games until your eyes glaze over, topped off by the Monday night contest featuring our Browns against the Baltimore Ravens, which promises to be only slightly more competitive than the time the Christians were getting 10½ points against the lions down at the old Coliseum. Here's a better idea: Write the Supreme Court and tell them what you think of the new proposed rules of procedure.
The course of true love, and Eighth Amendment jurisprudence, never runs smooth. I'm not sure about love, but after yesterday's arguments before the US Supreme Court in Sullivan v. Florida and Graham v. Florida, 8th Amendment jurisprudence doesn't look like it's going to get any smoother.
Last week the 8th handed down a paltry five decisions in criminal cases. This week, it's a baker's dozen, plus one. (Butcher's dozen, maybe?) But, with a handful of exceptions, no love for defendants.
The wheels of justice can grind exceedingly slow. Or not. Back on February 18, the Ohio Supreme Court heard oral argument in Kiminski v. Metal Wire Products, involving the constitutionality of RC 2745.01, Ohio's new employer intentional tort statute. No decision has yet been forthcoming.
On Tuesday, the court heard oral argument in State v. Roberts. Roberts had been sentenced to five years in prison for a drug offense, but the Department of Corrections and Rehabilitation decided she was a good candidate for the intensive program prison. As required under the law, it faxed a notice to the sentencing court of its recommendation. If the court didn't respond within ten days, the law allows DRC to proceed with the placement, and that's what happened; Roberts was placed into the program, successfully completed it, and was released.
Meanwhile, Roberts' appeal of her conviction resulted in the court of appeals ordering a resentencing because two convictions should have been merged. Roberts had been released by that time, but the trial court held that it hadn't properly been given notice of Roberts entry into the IPP -- apparently, because the fax never got to the judge -- and sent Roberts back to prison on the same five-year sentence, with credit for time served.
All that was rehashed on Tuesday, with the high point being Justice Cupp's managing to keep a straight face when he suggested to the prosecutor that Roberts really hadn't suffered any harm here, and the prosecutor's keeping a straight face when he agreed. A mere two days later, the court unanimously reversed Roberts' sentence and ordered her immediate release, concluding that the state failed to show that the sentencing court never received notice.
Down in DC, the Court's gearing up for the argument Monday on the juvenile life-without parole cases, and I'll have more on that later this week. On to the courts of appeals...
It's all about me. I ran into a number of people over at the Justice Center this week who asked, "How was Vegas?" My inevitable answer: "Well, I came back, didn't I?"
There are a lot of people who really like Las Vegas. I'm not that into it. My Lovely Bride and I have been there maybe six times total, and I'm not sure we'll be going back. As I said before, I'm not the gambling type. The novelty of the town is an attraction, I'll admit; it's a uniquely American experience. I remember going to a pizza/sports bar we'd eaten at before and not being able to get in because they were filming an episode of a reality show there. The irony of doing a "reality show" in a city which has hotels featuring faux Eifel Towers, New York skylines, and Egyptian pyramids was apparently lost on somebody.
Back in 1999, Christian Bodyke pled out to a B & E and a count of sexual battery. He got six months on the former and two years on the latter, run concurrently. The court also determined that he was a "sexually oriented offender" -- at that time the lowest level of classifcation -- and thus had to annually register with the county sheriff for the next decade.
In early December of 2007, Bodyke got a letter from the Ohio Attorney General telling him he'd been reclassified as a "Tier III" offender. Now, he'd have to register with the sheriff every ninety days. Not just in the county that he resided in; he also had to register in the county where he was employed, and if he went to school somewhere, that county as well.
And not just for the remaining two years of his notification requirement. He'd have to do that for the rest of his life.
On the heels of the Obama administration's announcement that it was no longer going to prosecute those in "strict compliance" with a state's medical marijuana policy came news of this latest Gallup poll:
I've often wondered if there's a "law enforcement" chatroom on AOL, where everybody on it is actually a teen-age girl pretending to be an FBI agent. Two defendants in 8th District cases last week forgot the important lesson conveyed by the cartoon on the right, to their sorrow. Other cases show the limits of Arizona v. Gant, and the expansive nature of "consensual encounters." That, plus a good decision on expungement, fill out the 8th's body of work over the past couple of weeks.
Down in DC, the eagerly-anticipated oral argument in Graham v. Florida and Sullivan v. Florida, the two juvenile life-without-parole cases, is still a week away. There are several notable arguments in the Ohio Supreme Court this week, too, but none more significant than State v. Bodyke, which involves the constitutionality of the latest effort on sex offender registration, the Adam Walsh Act. I'll have more on that on Thursday.
The Columbus Septet did actually decide some cases last week. The expungement statute permits multiple convictions to be sealed if they arise out of the same incident. State v. Futral presents the question of what happens if some of the offenses qualify for expungement and some don't. The court parses through the law and, probably correctly, concludes that if one doesn't qualify, none can be expunged, but the main lesson drawn from the case is the sheer idiocy of the legislature's efforts over the years to substantially restrict the number of offenses which can be expunged. Here, Futrall had pled to five misdemeanors, and the trial court acknowledged he was "an outstanding candidate" for expungement, but since aggravated menacing was a "crime of violence," no can do.
Lots of catching up to do in the courts of appeals, so let's head there...
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