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Case Update

As you can see, my New Years resolution to start exercising regularly is already paying big dividends.  I took time out from the gym to wade through the decisions that have come down since my last Case Update.  Nothing from the US Supreme Court; they're gearing up for the oral argument next Monday in Briscoe v. Virginia, which considers the viability of Virginia's procedure of permitting reports laboratory results at trial, and leaving it up to the defense to subpoena the analyst if it wants live testimony.  (Case discussed here.)  The Ohio Seven came down with one consequential decision in the last few weeks, involving the legislative amendments to the procedures for implementing post-release controls; I'll talk about that one in detail on Wednesday. 

Meantime, my BFF Lexis tells me that there were 300-some appellate cases decided in the last three weeks, so let's get to it...

Criminal.  6th District holds that where trial court notified defendant of post-release controls in writing at time of sentencing, trial court can enter nunc pro tunc order to correct omission of PRC in journal entry... 10 District rules that two subsections of aggravated arson statute -- creating risk of serious physical harm to person, causing physical harm to occupied structure -- are not allied offenses... Rare reversal for ineffective assistance of counsel in failing to object to hearsay testimony in this 5th District case... No confrontation violation in admitting tape of drug transaction with informant, even where informant not available for trial, says 6th District:  tape admitted to prove context, not to prove truth of statements by informant... Three police officers testify that defendant refused to make a statement to them, 3rd District somehow concludes that trial counsel's failure to object to evidence of post-arrest silence was a "reasonable trial strategy"... 10th District says Batson not applicable to claims of removal of juror for religious reasons... 5th District rejects claim that rape statute section dealing with victim under age of 12 is unconstitutional where applied to defendant juvenile who was 12...

Civil.  9th District affirms trial court's order compelling arbitration in home inspection contract; although contract's provision limiting liability to amount of fee paid for inspection was unconscionable, proper remedy was to sever it, allows arbitration to proceed... 10th District says that suit by cheerleader for her fall from pyramid, resulting in her being rendered paraplegic, barred by primary assumption of risk doctrine... Trial court's award of $400 a month for 10 months for spousal support in 23-year marriage reversed by 7th District... Good discussion in this 3rd District case of awardability of workers compensation benefits for suicide resulting from work-related injury... "Excusable neglect" under CivR 6(B) (failing to file answer on time) lesser standard than under 60(B)'s motion for relief from judgment, says 10th District... 1st District says that where insurer made aware of potential claim under UM/UIM coverage, insurer must inform insured of applicable limitations period under policy... 11th District holds that court of appeals can reverse sua sponte on issue neither raised nor briefed by the parties...

Times when I don't even have to check to see whether it's a pro se defendant.  The assignment of error in the 12th District's case of State v. Fields:

THE TRIAL COURT ERRED BY NOT ADDRESSING BLATANT CONSTITUTIONAL DUE PROCESS ERRORS AND VIOLATIONS TO THE DEFENDANT[']S GUARANTEED CONSTITUTIONAL RIGHTS - THE CASE SHOULD HAVE BEEN DISMISSED AND CHARGES DROPPED AGAINST THE DEFENDANT-APPELLANT. IN GOING FORWARD WITH THE TRIAL, [THE] TRIAL COURT INITIATED A CHALLENGE TO THE CONSTITUTIONAL AND THE RIGHTS OF 'WE THE PEOPLE [sic].

But I think I know what they look like.  From the 2nd District's denial of a petition for post-conviction relief in State v. Butt:

We conclude that the record supports the trial court's conclusion that Butt failed to prove that his trial counsel was constitutionally ineffective, in the sense that the result would likely have been different had counsel conducted a more thorough investigation of an alibi that Butt said could be established by a "Bud and Torey," who were not otherwise identified, and for whom no address was provided.

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