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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

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...

Civil.   A bank's customers writes $23,000 in bad checks, four years later the bank gets around to suing him.  The statute of limitations for that is three years, the bank tries to get around it by making a claim for "unjust enrichment," the 1st District says no, it's what the claim is actually for, not what you call it, that determines the applicable limitations period... Trial court orders plaintiff to sign authorization allowing discovery of all her medical records, 10th District says no, court must conduct in camera inspection to see which ones are relevant to lawsuit... 11th District holds that motion to vacate is not a substitute for appeal, to the great benefit of the eight attorneys in this state who still don't know this...

Criminal.  Officer spots digital scales with "white powder" on it in back seat after traffic stop, that's not enough to support conviction for drug paraphernalia, says 12th District...  Back in January, the 7th District held that trial judge properly advised defendant of his constitutional rights, but failure to tell defendant that he was waiving these rights by pleading guilty required plea to be vacated.  Defendant makes the same argument to the 11th District, they're not buying it... Defendant takes girl at gunpoint from phone booth, drives her forty blocks away, rapes her twice; 8th District holds that firearm specs for rape and kidnapping merge, as it was one "continuous transaction"...

Probably because they were using live ammo.  In Baker v. Just for Fun Party Ctr., the 1st District's opinion begins with the recitation that the plaintiff's daughter "received an invitation for a child's birthday party" which "contained a half-page 'Waiver/Release.'" 

Uphill battles.  The moral of the story in the 8th District's decision in State v. Strozier:   if you're convicted of felonious assault based upon your own admission that you knocked the victim down, then sat on her and punched her in the face until she was unconscious, you're going to make it very difficult for your lawyer to win an appeal on insufficiency and manifest weight of the evidence.


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