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.
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