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Case Update

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. McCauslandThe 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...

Criminal.  Fact that drugs were seized from defendant's car not sufficient to support probable cause for issuance of search warrant, but evidence comes in anyway under good faith exception to warrant requirement, says 2nd District... 8th District holds that mens rea requirement for rape is purpose -- "purposely compels" other person to submit to sexual conduct by force of threat of force... Even though defendant only used gun as bludgeon, evidence of pointing of gun and threats to kill sufficient to prove operability for firearm for specification of brandishing, 10th District rules... 9th District holds that since conviction on insufficient evidence would always be due process violation under plain error analysis, failure of defendant to renew Rule 29 motion does not prevent review of insufficiency claim... After defendant invokes Miranda rights, officer continues to ask him if he's "conficent" of his choice; 12th District says this violates Edwards rule that interrogation must cease unless defendant reinitiates it... In child rape case, prosecution cross-examines defendant on a public indecency charge; 12th District not only holds that this was impermissible, but reverses conviction on finding that defense counsel was ineffective for failing to object to questions...

Civil.  Court lacks jurisdiction to hear counterclaim for divorce in action under Uniform Interstate Family Support Act, says 8th District... Teenage boys who placed styrofoam deer in roadway did not intend to cause accident so as to trigger insurance companies' exclusion for intentional injury, 10th District rules in split decision; opinion and dissent contain extensive and excellent analysis of subject... A and uninsured B involved in auto accident, A's insurer pays A and gets default judgment against B on subrogation claim, B then files complaint against A for injuries:  nope, says 12th District, B's claim should have been filed as compulsory counterclaim in A's insurer's case...  5th District reverses trial court's determination that arbitration provision in employment agreement was unconscionable...

Meanwhile, in another part of the galaxy.  In Ohio State Bar Assn v. Heath, the Supreme Court found that Heath had engaged in the unauthorized practice of law, but assessed only a $1,000 fine, as opposed to the $15,000 recommended by the relator.   Heath's transgression consisted of sending a letter threatening legal action on behalf a friend who had been denied access to a certain gas well.  The letter admonished,

If you do not respond within 14 days of receipt of this letter it will be your admission that you are attempting to commit barratry and trespass * * *. [The] charge for barratry or trespass is 100,000.00 dollars lawful species silver or gold per instance, due and payable within 14 days of receipt of this letter.

Among Heath's defenses to the unauthorized practice charge was, "Gary Allan Heath is a fiction (Fictio) created by the State (also a fiction) and does not exist in reality."  Yeah, there's probably something to that.

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