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Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Case Update

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...

Criminal.  Rare reversal for ineffective assistance of counsel in 6th District case; attorney failed to request removal of juror who, after overhearing defendant's conversation in restroom, told judge that defendant was "pond scum" and "couldn't be believed"... In overly broad opinion, 8th District says that court didn't abuse discretion in giving flight instruction where evidence showed that "defendant attempted to avoid apprehension"; so if you break into a house and don't hang around until the police get there, it warrants a flight instruction?... Trial court didn't err when it sua sponte gave jury  instruction on complicity in response to jury question, says 1st District... Court has no duty to advise witness of right against self-incrimination if it has no reason to anticipate that witness will incriminate herself, 11th District rules... 10th District holds that stiffer sentence on remand by different judge than one who did original sentencing removes presumption of vindictiveness... 9th District affirms suppression of evidence, holds that affidavit for search warrant defective because it was solely based on informant's claims, contained no information as to credibility of informant... 2nd District says that new trial should be granted if newly-discovered evidence would be "reasonably likely to change outcome of trial," even if it is cumulative, reverses denial of motion... Court not required to inform defendant in plea hearing that if he doesn't testify, it can't be used against him, says 11th District...

Civil.  6th District reverses discovery order, holds that accident reports by transit authority turned over to its attorneys were covered by attorney-client privilege... 2nd District says trial court didn't abuse discretion in divorce case by ordering marital property sold at auction, where husband was not cooperating in sale... 8th District holds that rules for disqualification of corporate counsel in later suit between corporate officers also applies to closely held corporation... Promise by corporate officer that employee "had a job with the company as long as I'm alive" too vague to support claim of promissory estoppel for employee's dismissal, says 10th District... Once child custody is awarded to non-parent, parent seeking to regain custody must show change of circumstances, etc.; parental unsuitability rule no longer applies, says 12th District...

Alford pleas.  Fascinating case out of the 6th District on Alford pleas, in which the defendant maintains his innocence but pleads guilty to avoid more dire consequences.  In State v. Henry, the defendant entered an Alford plea to the indictment, then received the maximum sentence.  The court holds that an Alford plea has to be evaluated differently from a normal guilty plea:  especially significant is that the record must show "the plea was motivated either by a desire to seek a lesser penalty or a fear of the consequences of a jury trial, or both."   Here, the record didn't show that, especially since the defendant couldn't have fared worse if he had gone to trial. 

Eewwww Moment of the Week:  In State v. Hendricks, the 8th District decides that defendant's speedy trial rights were not violated because the time was tolled for, among other things, "Hendricks' tampering with his colostomy bag during voir dire."  The opinion notes this caused a mistrial.  I'll bet.


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