January 2010 Archives
My dream come true: more ways to look up cases. Or rather, new ways. In the face of declining revenues growth -- 1% to 2% a year, as opposed to 5% to 7% a year in the past -- Lexis and Westlaw have decided to give their programs a major facelift. More than just a facelift, actually. This article, which takes a first look at Westlaw's overhaul, scheduled to debut next Monday, points out that the "this is no mere cosmetic redesign. WestlawNext completely changes the search interface and the search engine behind it." (A screenshot of the new interface, substantially streamlined from the present one, can be found here.) Lexis is coming out with a revamped product -- imaginatively titled "New Lexis" -- later this year.
As the countless legions of regular readers of this blog can contest, I take second place to no one in lambasting the current state of Ohio's allied offense law. Well, maybe second place to one person: Ohio Supreme Court Justice Judith Lanzinger. Judging from her partial dissent in yesterday's decision in State v. Williams, she's none too pleased with it, either.
In September of 2008, Ohio's New, Improved Castle Doctrine went into effect. This wasn't the one from Merry Old Englande, which held that the duty to retreat in self-defense cases did not apply if the defendant was in his own home. The new statute, RC 2901.05(B), as I explained here, basically creates a rebuttable presumption that someone in his own home who uses deadly force to expel an intruder has acted in self-defense.
Last week's decision by the 8th District in State v. Johnson is the first appellate decision on the new statute, and the result is not helpful.
No search cases, the court addresses the Castle Doctrine, which we'll discuss tomorrow; the rest is relatively ho-hum. We'll take a look anyway, 'cause that's why you pay me the big bucks.
As you might gather, I read a lot of cases. I do not read cases which are 183 pages long and begin,
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA and ALITO, JJ., joined, in which THOMAS, J., joined as to all but Part IV, and in which STEVENS, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined as to Part IV. ROBERTS, C. J., filed a concurring opinion, in which ALITO, J., joined. SCALIA, J., filed a concurring opinion, in which ALITO, J., joined, and in which THOMAS, J., joined in part. STEVENS, J., filed an opinion concurring in part and dissenting in part,in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. THOMAS, J., filed an opinion concurring in part and dissenting in part, mostly because he thinks that KENNEDY, J., is such a tool.
Okay, I made that last part up, but you get the idea. The case, of course, was the Supreme Court's long-awaited decision last week in Citizens United v. FEC. The Cliff Notes version is that corporations (and unions) are now free to spend money on political advertising directly, rather than have to go to the pretense of funneling it into political action committees. The effect of this on our democracy has generated great wailing and gnashing of teeth from the Usual Suspects and predictions of our being inundated by massive political advertising in the coming election. Like we weren't before. One of the best consumer purchases I ever made was TiVo a few years back, and you couldn't get me to watch live television at gunpoint any more.
Nothing out of Columbus, so let's head over to the courts of appeals.
Civil. 6th District holds that whether arbitration provision was part of contract is question of law, not question of fact, reviewed de novo and not under abuse of discretion standard... 2nd District says court erred in dismissing negligence action against minor, should have appointed minor's mother as guardian ad litem...
Criminal. Jury returns not guilty verdict of disorderly conduct/intoxication, trial court amends charge to disorderly conduct/causing annoyance and convicts defendant of that; 6th District says that second is not lesser included offense of first; yeah, and then there's that pesky jury trial/double jeopardy thing... Trial court not required to advise defendant of what sexual classification he'll get, but if it does, must advise him correctly; 8th District vacates plea where defendant told he'd be a Tier 1 offender, was actually Tier II... 3rd District affirms forfeiture award in drug case, good discussion of basic law on subject... 12th District finds no ineffective assistance of counsel in failure to file motion to suppress identifications, call expert witness on identification... 10th District reverses grant of judicial release for judge's failure to comply with statutory requirements regarding necessary findings... 2nd District affirms dismissal of enhancement for prior uncounseled conviction, excellent discussion of requirements for valid waiver of counsel...
Further confirmation of my wisdom. It's long been my view, based upon my personal and professional experiences, that every third home contractor should be taken out and shot, if only as a lesson to the others. Additional evidence of that is provided by Irby v. Strang, where the plaintiff had signed a contract for $33,000 for repairs to her home. Dissatisfied with the result, she'd sued, only to be presented with the defendant's contention that the contract contained an arbitration provision. Irby claimed the contract she signed contained only three pages, and that the arbitration provision was part of a six-page document containing "supplemental conditions" she was given after work was started. The first page of that document was numbered "page 4," and the last, numbered "page 14," contained the arbitration provision. The court of appeals affirmed the denial of the motion to refer the case to arbitration, agreeing with the trial judge's observation that "it would be peculiar that the parties would be signing the third page of an alleged 14-page contract."
Am I missing something? Here's the 9th District's recitation of the facts in State v. Little:
On the evening of July 30, 2007, Officer Orlando Perez of the Lorain Police Department received a "serious" call for assistance in locating "persons of interest[,]" including a "thin black male, young, wearing dark clothes and long shorts[.]" Officer Perez observed an individual matching the description and ordered the man to the ground and put handcuffs on him. The man was compliant and stated that his name was Terry Little. Officer Perez ran a warrant check and discovered Little had an outstanding warrant for failure to appear in court. Officer Perez then arrested and searched Little. During the search, Officer Perez found a large clear plastic bag containing crack cocaine in Little's left rear pants pocket.
Given the nature of the dispatch ("'serious' call"? "person of interest") and the paucity of the description, I think there's a legitimate issue as to the validity of the stop. Yes, there's a warrant, but if the stop's bad, you can make an argument that you never get there. It's not a sure-fire winner on a motion to suppress, but I've seen better searches than this get tossed.
But nobody even made the argument. No motion to suppress was filed in the trial court, and the only issues raised on appeal were weight and sufficiency of the evidence.
Consistency in sentencing. Everybody agrees that it's a bad thing if two defendants charged with the same crimes and with similar backgrounds wind up with wildly disparate sentences. Preventing that was the whole idea behind the enactment of the Federal Sentencing Guidelines back in 1984, where the various characteristics of the defendant and the crime he'd committed were plugged into a matrix, which would spit out a sentencing range -- say, 51 to 61 months -- and, except in rare circumstances, the judge would be limited to imposing a sentence within that range. Consistency was also a motivating factor in the passage of sentencing reforms here in Ohio in 1996, with the matrix idea being rejected in favor of "guided discretion": the enumeration of factors which judges should use in fashioning appropriate sentences.
Back in 2007, Cuyahoga County Common Pleas Court Judge Dan Gaul believed that a defendant in a felonious assault case was behind the victim's disappearance just before trial. He stopped jury selection, declared a mistrial, and removed himself from the case, after making a statement to the media and declaring his suspicions about the defendant in open court. That earned him an investigation by Ohio's Office of Disciplinary Counsel, resulting in a recommendation of a one-year suspension, with all of it stayed. Gaul maintains that the disciplinary action was motivated by Gaul's speech at a legal symposium a couple years back, where Gaul criticized chief disciplinary counsel Jonathon Coughlan for going after small-time lawyers and ignoring bigger cases of misconduct in the legal community.
After the Supreme Court's decision two months ago in Disciplinary Counsel v. Smith, the betting here is that Justin Smith thinks that Gaul might be on to something.
Reading the presentence report got my hopes up. Finding out that one of the victims had shown up for the sentencing got them back down again.
In the last three weeks before this past one, the 8th handed down only thirteen decisions. They make up for that with a vengeance by doubling their output last week. Fifteen criminal decisions find their way onto that list, but defendants get no love, managing merely to eke out a remand for resentencing in a case or two.
The only significant decision out of Washington last week was Smith v. Spisak, which I discussed on Friday. Some decisions are expected on Wednesday, the most eagerly anticipated of which is the one on campaign finance reform, which you probably won't read about here. Two cases that would merit discussion -- one on criminal forfeiture laws and other other on whether prosecutors have immunity for presenting perjured testimony -- won't be finding their way here, either; as I'd mentioned before, both were dismissed after the parties arrived at settlements.
Smith was one more decision than the Ohio Supreme Court came out with last week; not even a disciplinary opinion chastising some miscreant attorney. I did see an announcement from the court that they'd given the parties in Turner v. Levin 14 days to explain why the case shouldn't be dismissed for lack of jurisdiction. Hmmm, could be interesting, I thought. It's not; it's a tax board appeals case, and the question is whether the case should be dismissed because of "appellant's failure to specify in his notice of appeal the 'errors complained of' as required by R.C. 5717.04." Rest assured that you will read about me becoming the newest member of the Chippendales before you read about tax cases here.
So, in anticipation of better days, let's check out what's happening in the courts of appeals, where it's also a slim menu, especially on the civil side...
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