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February 2010 Archives

Friday Roundup

An entendre, bartender, and make it a double.  Only in Texas:  in 1990, Charles Dean Hood was sentenced to death for killing his boss and the boss's girlfriend.  There wasn't much doubt of his guilt; his fingerprints were found not only on the garbage bags that covered the dead woman's body, but on the note he had left in an attempt to throw the police off his trail.  The note, purportedly from her, claimed that she had gone out jogging.  The attempt failed because Hood had misspelled her name.

But Hood wasn't the only one in the case operating with his Brainpower Switch set on "dim."  Last year his lawyers discovered that the trial judge in his case had been sleeping with the prosecutor who tried him.  According to this article, after a 6-3 decision by the Texas Court of Criminal Appeals holding that this didn't warrant a stay of Hood's execution, the case may be heading to the Supreme Court.  Meanwhile, Judge Verla Sue Holland, who presided over Hood's trial, is not taking all this lying down.  As the article notes, with a stiff upper lip,

In her deposition, Judge Holland said she had lately become angry with Mr. Hood’s lawyers for “annihilating my reputation.” She said she had asked the attorney general’s office to represent her in Mr. Hood’s challenge to her conduct because she thought she needed to fight back. She was “tired of laying over,” she said, and “getting licked without any input.”

You can't make this stuff up.

No quarter asked, no quarter given.  I used to practice domestic relations law, but I wasn't very good at it.  I always felt that, because of the emotional trauma surrounding divorce, it was incumbent upon me to remain objective and above the fray.  I found out two things.  First, divorce clients don't like that; they want someone who's going to extract the last pound of flesh and ounce of blood from their soon-to-be ex-spouse.  Second, there are plenty of lawyers willing to do that, and even to goad their clients on in that sentiment.

That's not limited to domestic practice, though, as evidenced by David Justin Lynch & Associates, a California firm which advertises itself as "attorneys who kick butt!"  The only thing missing from the firm's web site is the smell of napalm and a sound track of Ride of the Valkyries

Unlike other attorneys who groove on friendship and politics when dealing with the other side, we’re for you, all the way. For us, the other side is not merely an opponent---they’re the enemy!

For us, litigation is war. We’ve given the term “scorched earth litigation” new meaning with unusual, but effective, actions and tactics—sometimes unpleasant, but all within the law. Our letters feature down-to-earth street language to get our point across. We carpet bomb the other side with discovery, and our deposition questions are like hellfire missiles. Opposing lawyers hate us—but our clients love us, and that’s what counts.

Emphasis in original, as if you had to ask.

Well, Mr. Lynch, you probably make more money in a week than I do in a month, but that doesn't make you any less of an asshole.  The reason they call this a profession is because we're supposed to be professionals.

The law in these parts.  The Anthony Sowell case here in Cleveland keeps chugging along.  For those cavebound for the past six months, Sowell stands accused of luring eleven women to his Cleveland abode and murdering and raping them.  The case has been covered in lavish detail by the local fishwrap, prompting Sowell's attorneys to move last month for a change of venue.  The trial court denied that, concluding that if Timothy McVeigh could be tried in Oklahoma City, Anthony Sowell could be tried in Cleveland, putting the defense attorneys in the unenviable position of figuring out how to delicately remind the judge that McVeigh's case had been moved to Denver.

Money's always a problem in death penalty cases here in Cleveland.  Last year, the administrative judge decided to cap the fees of mitigation experts at $3,000, a sum so penurious that it's become more difficult to find one willing to work on a case.  (How this will play out when these cases hit habeas review in the 6th Circuit five or so years from now is anyone's guess.)  The judge in Sowell's case has been more generous, recently allocating $15,000 for a psychologist.  To press this issue, a few weeks back Sowell's lawyers filed a "Motion to Have Defense Counsel and Experts Paid in Compliance with ABA Guidelines Section 9.1 and the Federal Constitution."

That's a bit of a stretch; as I pointed out then, back in December the Supreme Court pretty much trashed the idea that the ABA Guidelines represent the minimum standards for effective representation of death penalty defendants, holding that the Guidelines were... well, guidelines.  The State in its response to Sowell's motion went well beyond that, though, arguing

In that the Court of Common Pleas derives its jurisdiction and is bound to follow the law of the Ohio Revised Code, State of Ohio Constitution and Rules of Ohio Criminal Procedure, the ABA guidelines as well as the Federal Constitution would not be applicable to this case.

Yes, that is my emphasis.  And no, you can't make up stuff like that, either.

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A new look at innocence claims

Greg Taylor was convicted in 1993 of murdering Jacquetta Thomas in Raleigh, North Carolina.  After spending 17 years in prison, he was freed last week when the North Carolina Innocence Inquiry Commission determined that he had been wrongfully convicted.

The what?

Continue reading "A new look at innocence claims" »

The pitfalls of stop-and-frisk analysis

Of the various exceptions to the 4th Amendment's warrant requirement, there's probably none more frequently used, and certainly none more frequently litigated, than the "stop and frisk" doctrine created 42 years ago in Terry v. Ohio.  The 8th District's decision last week in State v. White highlights three fundamental mistakes that courts make in those cases.

Continue reading "The pitfalls of stop-and-frisk analysis" »

What's Up in the 8th

The court tackles the question of when informants have to be disclosed, what the appropriate sanctions are for failure to provide discovery, and tops off the week by turning back the 4th Amendment clock.

Continue reading "What's Up in the 8th" »

Case Update

Reaction to the decision in Citizens United allowing corporate campaign financing still dominates news about the US Supreme Court; a recent poll showed 80% of the public opposed to the decision.  Interestingly, the opposition crosses party lines (85% of Democrats and 76% of Republicans disapprove), perhaps complicating Republican congressional leaders' vow to oppose any legislation limiting its impact. 

The Court gets back into action this week with oral argument in six cases.  The most notable one is Holder v. Humanitarian Law Project, which tests the constitutionality of the law prohibiting "material support" to designated terrorist groups, but the one closest to our hearts is Astrue v. Ratliff, which poses the question, When attorney fees are awarded in a court case, do they belong to the attorney or the client?  Ratliff had successfully represented a client in her claim for Social Security benefits, and the district court, pursuant to statute, awarded her $2,112.60 in attorney fees.  The government claimed her client owed it money for something, and took the fees.  The 8th Circuit ruled in Ratliff's favor, but there's a split in the Circuits that the Court will have to sort out.

Down in Columbus, the court was too busy setting execution dates or staying them to do much of anything else, even smacking down some miscreant attorney or other, although it did order one released from jail after he'd served five days.  Moral:  if the Supreme Court tells you to appear, you'd better appear. 

On to the courts of appeals...

Continue reading "Case Update" »

Friday Roundup

Ghostbusters.  So, this is how my mind works.  The other evening I'm watching, for no particularly good reason, an old episode of Two and a Half Men, the CBS comedy starring Charlie Sheen.  In this episode, Charlie's mother, a real estate agent, bemoans the troubles she's having selling a Malibu beachhouse whose owner just committed suicide.  The next morning, I'm putting together my Friday Roundup post, which you're reading now, and come across an article in Legal Blogwatch telling me that the likelihood of watching new episodes of Two and a Half Men might be affected by the three-year stint in the pokey that Sheen's looking at for a recent incident in which he threatened his wife with a knife.  Scrolling down further, Blogwatch tips me off to an article in The Consumerist, which details a complaint by a Massachusetts woman who discovered that the previous owner of the house she just bought had committed suicide.  The Consumerist is shocked to find that Massachusetts law does not reqire that this information be disclosed to a buyer.

So what do I do?  I check out Ohio law.  Oh, it's not extensive research; I simply did a Lexis search on "dislos! w/s suicide."   The only case that comes up is this 1993 Butler County Common Pleas Court case.  A suicide wasn't involved in that case -- the buyer was complaining that she hadn't been told of various crimes that occurred in the house and the neighborhood, including the rape of the previous owner's daughter a few months before the property closed.  Turns out there's a whole theory of law on the subject:  "stigmatized property."  A number of states have (or had, by that time) passed laws stating that home-sellers are not liable for failure to disclose stigmatizing events, such as "homicide, suicide, felony, or death by AIDS."  Ohio doesn't have one, and the judge decided that a 1984 1st District decision had legitimized the cause of action.  (To show you how some judge's minds work, the 1984 case actually did involve a suicide, but the court denied relief.) 

And no, I don't know whether Charlie's mother ever sold the house, or if she did, whether she told the buyers that the owner had committed suicide.  Probably not; California is one of the states with a statute that specifically exempts such disclosures.

The bill comes due. This is also how my mind works.  A few months back I regaled you with the story of Shawn, a client charged with leading the police on a 100 mph chase along the Shoreway here.  I'd taken a close look at the cops' dashboard cam video, which showed a few seconds of the driver leaping from the car.  I noticed that the driver was wearing shorts, then went out to the Euclid police station and learned from the booking card that my client had been wearing blue jeans the night he was arrested.  I presented this to the prosecutor, who dropped the fleeing charge.  He still wanted a plea to the other charges, receiving stolen property and attempted theft of a car, but I had hopes of working out something better the morning of trial.  It became academic when Shawn didn't show up.

There have been other developments since then.  Turns out Shawn had a reason for not showing up at trial:  he was in jail on another matter.  Hey, I didn't say it was a good reason.  Still, I managed to convince (a) the prosecutor to give me a better deal, dropping the 4th degree felony and leaving only a 5th degree, (b) the judge to let Shawn out of jail, and (c) the judge to give Shawn probation if he pled.  Which Shawn did. 

Normally, I just send a client a letter reminding him of the sentencing date, but in this case I made a special point to call Shawn the day before.  His mother answered, and mumbled something about Shawn's grandmother's funeral coming up.  I told her in no uncertain terms that Shawn had to be at his sentencing the next day.  He  wasn't.  Two weeks ago, the mother called me up, told me that she'd taken him to the funeral anyway, and wondered what they should do.  I told her it was absolutely essential that he turn himself in; if he got stopped for a traffic violation, the cops would discover the warrant, and the judge would be much less impressed with the situation.  We set up plans for him to be in the court the next morning.

He didn't show.

The other day I got a call from the mother.  Shawn had been a passenger in a car that had been stopped for a traffic violation and...  Well, you can pretty much fill in the rest.  The mother asked me, "What do you think will happen?"

I said, "You haven't listened to anything I've told you so far, why would you start now?"

Continue reading "Friday Roundup" »

Jury Nullification

"Can you set aside your own personal feelings about what the law should be, and apply the law as I give it to you?" the judge will ask.

"Yes," the jurors will say.  Sometimes with their fingers crossed...

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Pleas and conflicts

Of all the mistakes a lawyer can make, representing two criminal defendants in the same case is one of the biggest.  Of all the mistakes a trial judge can make, getting too involved in plea negotiations is one of the biggest.  Both were on display in last week's 8th District decision in State v. Kelly.

Continue reading "Pleas and conflicts" »

What's up in the 8th

This week's decisions from the 8th District give lessons on post-release control, 404(B) evidence, and what not to do in plea discussions, and feature a cast of characters -- Apache Hightower, Ebay Fuller, and Taiwan Wiggins -- that would feel at home in an Elmore Leonard novel.

Continue reading "What's up in the 8th" »

Case Update

SCOTUS comes back into session next week, and with the dismissal of Briscoe v. Virginia, the only big criminal cases remaining on the Court's docket are the two on life without parole for juveniles, discussed here, and discrepancies in the Miranda warning, discussed here.  The gang down in Columbus wasn't very prolific this past week, either.  The major news was the acceptance of State v. Hodge, discussed last week, which presents the issue of how Oregon v. Ice impacts State v. Foster's determination that judicial fact-finding for imposing consecutive sentences is unconstitutional.  The interesting tidbit on Hodge is that the decision to accept it was only 4-3, with an unlikely alignment of Justices Pfeifer, Lundberg Stratton, and Cupp dissenting.

But while some cases come, some go.  In the latter category is State v. Rardon, which presented an interesting fact situation:  police responded to a disturbance call, saw Rardon throw something in the grass, and retrieved a flare gun.  He was charged with possession of a deadly ordnance and tampering with evidence, the latter from his trying to discard the item.  The trial court found him not guilty on the first -- a flare gun is specifically defined in the Revised Code as a "safety device" -- but guilty of the latter.  The case thus presented the intriguing question of whether a defendant can be convicted of tampering with "evidence" that actually isn't evidence of anything.  Alas, we'll never know; last week Rardon got kicked out becuase of a missed filing deadline.

On to the court of appeals...

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Friday Roundup

Technology meets the law.  I, and just about everybody else in the world, have commented on the new term which has entered the legal lexicon:  the "Google mistrial," which results when a member of the jury does legal research online or sends a text message about the case to someone else.  (And it's not limited to lawyers; a medical malpractice suit in Boston was settled for "a substantial amount" when the plaintiff's lawyer discovered that the defendant doctor was blogging about the trial.)

With a hat tip to LegalBlogWatch, we learn that a committee of the Judicial Conference of the United States has prepared a set of model jury instructions to deter this practice.  The full set of instructions can be found here; the highlights:

BEFORE TRIAL

* * * you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case.

* * * I know that many of you use cell phones, Blackberries, the internet and other tools of technology. You also must not talk to anyone about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, My Space, LinkedIn, and YouTube.

AT THE CLOSE OF THE CASE

During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, any internet service, or any text or instant messaging service; or any internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.

The thinking is that if jurors are specifically advised about the use of certain devices, rather than just given a general admonition regarding outside communications, there are going to be fewer problems.  I think there's some merit to that idea.

Mo' money, mo' money, Part 37.  Defense attorneys, legal scholars, and just about anybody who has a passing interest in civil liberty have long railed against criminal forfeiture laws, which allow police and prosecutors to seize money, cars and even houses on the theory that they've been the instrumentalities or fruits of crime, and then putting the owner of those items to the burden of pursuing various legal hurdles to have the items returned.  I didn't realize the extent of the problem until I came across this recent piece in Reason:

According to a 1992 Cato Institute study examining the early results of the Comprehensive Crime Control Act, total federal forfeiture revenues increased by 1,500 percent between 1985 and 1991. The Justice Department’s forfeiture fund (which doesn’t include forfeitures from customs agents) jumped from $27 million in 1985 to $644 million in 1991; by 1996 it crossed the $1 billion line, and as of 2008 assets had increased to $3.1 billion.

The real kicker is the next line:  "According to the government’s own data, less than 20 percent of federal seizures involved property whose owners were ever prosecuted" for any crime relating to the items seized.

What, their Tasers weren't working?  A hat-tip to Lowering the Bar for pointing us to this story from the New York Daily News:

A 12-year-old Queens girl was hauled out of school in handcuffs for an artless offense - doodling her name on her desk in erasable marker, the Daily News has learned.

Fortunately, poor Alexa Gonzalez was detained by the police for only a few hours before she was released to her mother, probably just before the girl was to be waterboarded in an effort to determine where she'd gotten the marker she'd used to wreak such havoc.  As the article tells us, this apparently isn't an isolated incident

In 2007, 13-year-old Chelsea Fraser was placed under arrest for writing "okay" on her desk at Intermediate School 201.  And in 2008, 5-year-old Dennis Rivera was cuffed and sent to a psych ward after throwing a fit in his kindergarten.

No word yet on whether the school district has revisited its "shoot-to-kill" policy for students caught running in the hallway.

Continue reading "Friday Roundup" »

The Supreme Court takes a look at Ice

Four years ago in State v. Foster, the Ohio Supreme Court held that the provisions of Ohio's sentencing laws which required a trial judge to make findings of fact before imposing consecutive sentences violated the US Supreme Court's holdings in Apprendi v. New Jersey and Blakely v. Washington, and severed those provisions from the sentencing statutesA year ago the US Supreme Court held in Oregon v. Ice that requiring a trial judge to make findings of fact before imposing a consecutive sentence didn't violate the Apprendi/Blakely rule.  Everybody's known that sooner or later, the Ohio Supreme Court was going to have to confront the issue of Ice's impact on Foster.  As the Chambers Brothers would say, time has come today.  Or yesterday, rather, when the court accepted the appeal in State v. Hodge.

Continue reading "The Supreme Court takes a look at Ice" »

A duty to disclose

It's not often that a decision on attorney discipline has a major impact on how law is practiced.  It may well have happened with last week's decision in Disciplinary Counsel v. Kellogg-Martin

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What's up in the 8th

The Dykas case finally comes to an end, an appellate argument on sentencing comes a cropper, and we learn valuable lessons about no contest pleas.  All that, and a sidenote on the intricacies of insufficient evidence claims and affirmative defenses, represent the court's body of work for the week.

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Case Update

What's that stuff about the wheels of justice grinding slowly?  Don't tell that to Mark Brown.  Well, actually you couldn't if you wanted to:  he's dead.  He'd been on Ohio's death row since he was convicted of killing a Youngstown store owner and a clerk back in 1994, while apparently trying to copy a scene from the movie "Menace II Society."  There was the last-minute flurry of attempts to obtain a stay of his execution, culminating in the Supreme Court's order last Wednesday giving the State until six that evening to respond to Brown's latest memorandum in support of jurisdiction.  Whatever the prosecutor managed to cobble together at the last minute worked:  Brown's appeal was refused, and he was executed the next morning.

In other decisions, the court wades back into the PRC swamp in State v. Jordan.  The court has consistently held that in order for post-release controls to be valid, the trial court must not only include imposition of them in the journal entry, but must orally advise the defendant of them at sentencing.  Jordan was convicted of escape, and argued that there was no evidence introduced of the latter.  No matter, says the court; there was ample evidence that Jordan knew he was under PRC -- he'd reported to three meetings with his PO -- and that was sufficient.  It's a very narrow ruling, though:  there was no evidence to show that the judge hadn't orally advised Jordan of PRC.  Simply put, the case stands for the proposition that the State doesn't have the burden of proof on that point, and in the absence of evidence on that, the State can still make its case.

The court handed down its usual spate of disciplinary decisions, one with substantial impact on criminal discovery, the other of which teaches that if you're planning on getting married after your divorce is final, you might want to hold off telling your soon-to-be ex-wife about the impending nuptials until after she's signed off on all the paperwork

On to the courts of appeals...

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Friday Roundup

Mo' money, mo' money.  The  US Supreme Court's decision a couple of weeks back in Citizens United v. FEC,  which allowed corporations (and unions) to make unlimited expenditures on behalf of candidates, got approval this week from an unlikely quarter:  Ohio Supreme Court Chief Justice Tom Moyer.

"There is a silver lining to the decision," [says Moyer].   "For those of us who have been trying to impress upon the public the deleterious effects of money in these elections, it helps us make the point that we need to get the money out."

Moyer's been flogging the idea of merit selections for judges for years.  Whether Citizens United gives the cause a boost remains to be seen.  Last year, I wrote about the Supreme Court's decision in Caperton v. Massey, where the president of a West Virginia coal company which had gotten an adverse jury verdict -- $50 million of adverse, to be exact -- spent $3 million on the campaign of a state supreme court justice, who after his victory obligingly provided the deciding vote in that court's 3-2 reversal of the verdict.  The Supreme Court held that the justice's failure to recuse himself was a due process violation, but if that's resulted in a popular uprising against elected judges, it's escaped my notice.  

Even here in Ohio, the public seems inured to any suggestion that campaign contributions distort justice.  Two years ago the Supreme Court upheld the new tort reforms which the court had rejected three times in the past twenty years.  As I mentioned here, the turnabout came after the health and insurance industries dumped millions of dollars into judicial campaigns seeking the replacement of the justices who balked at the previous legislation.  That didn't energize the elect-judges movement, either.

My views on the debate have undoubtedly been shaped by the experience of Cuyahoga County, where the roster of the 34 judges reads like the cast of a World War II movie platoon, with every name representing an easily identifiable ethnic group.  (A not particularly diverse platoon:  Irish and Italian names predominate.)  The experience has been decidedly mixed.  A decade or so ago a lawyer decided to capitalize on the fact that his surname, Gallagher, was exceedingly popular among the electorate.  He spent $50 on his campaign (the filing fee), and coasted to victory.  I'd known him before he was elected, and found no discernible legal abilities and some tendency toward personal slothfulness; the latter assessment was borne out a few years later when he was forced to give up his seat after buying drugs from an undercover DEA agent.

Still, the bench has come a long way from when I first started practicing, when more than an occasional seat was held by some hack who'd been given a sinecure by the (usually Democratic) party for his service.  (One was of such limited acuity that his bailiff had to meet him over at the Terminal Tower each morning to make sure he found his way to the Justice Center.  I'm not making that up.)  There's really none of that any more.

As for the name game, that can cut both ways, too.  For a long time Russo was one of the most marketable names in the county; at present, there's five of them on the General Division bench.  But then Frank Russo, the county auditor and related if at all only distantly to any of the judges, had to go and get himself targeted in a corruption probe by the Feds that's currently at 18 months and counting

And some of it over -- gulp -- campaign contributions.

How many dresses do you need for work?  Especially if you're a guy?  One of the common complaints about class actions is typified by what happened in the Grand Theft Auto case, which I discussed two years ago:  while each member of the class got between $5 and $35, a total of $26,505, the 12 law firms which represented the plaintiffs were awarded $1 million in fees.  (Or would have; after protests of the fee amount, the judge wound up decertifying the class, effectively ending the lawsuit.) 

A California judge came up with a different approach to fees.  A class action suit against a women's apparel retailer had resulted in a mediated settlement whereby the lead plaintiff would get $2,500, the plaintiff's attorney would get $125,000, and the remaining members of the class would get gift cards worth $10 each.  Filling in for the judge who'd preliminarily approved the settlement, Judge Brett Klein decided at the hearing on the settlement that the lawyer would get paid in $10 gift cards, too:  3,500 of them in January of 2009, followed by another 750 a month for the next year.

For that, as this story (hat tip to Overlawyered) tells us, he got censured by the state Commission on Judicial Performance.  I don't know; I think it gave the lawyer a good chance to get in touch with his feminine side.

Truth in advertising.  Yeah, I know, you're way behind in the tech revolution, and have finally decided to get a web site, but aren't coming up with any good ideas of how to grab potential clients' attention.  You might want to check out Cracked.com, which boasts of being "America's only humor and video site, since 1958," and recently featured the "5 Creepiest Defense Attorney Websites."   The award for #1 goes to the website of the Florida defense firm of Pawuk and Pawuk, P.A., particularly for the page of the site, shown below, that touts the firm's expertise in defending against domestic violence charges.

I've got to agree with Cracked.com's assessment that "assuming the image is supposed to be related to the theme of the site, the message seems to be that sometimes women need to shut their goddamn mouths."

Continue reading "Friday Roundup" »

A new look at 12(B)(6)?

One of the major differences between criminal and civil cases is that the latter afford several opportunities for trial avoidance.  No matter how overwhelming the defendant's guilt, or how weak the state's evidence, the only way to determine the result is to put twelve people in the box and let them sort it all out.

Not so in the civil arena.  There are several weapons in the litigants' arsenal which allow a judge, not a jury, to decide the case.  To be sure, they're not easily available.  One, a motion to dismiss for failure to state a claim under CivR 12(B)(6), can be granted only where the plaintiff has alleged no set of facts which would entitle him to relief under any accepted legal theory.

Or at least that's the way it worked until recently.

Continue reading "A new look at 12(B)(6)?" »

What does Williams mean?

On Thursday I wrote about the Supreme Court's decision last week in State v. Williams, bemoaning the fact that while the court had agreed that felonious assault and attempted murder were allied offenses, it bought into the idea that Williams could be convicted of two separate counts of attempted murder because he'd fired two shots at the victim.  Several people have suggested I'm wrong, so I took another look at the decision.

Continue reading "What does Williams mean?" »

What's up in the 8th

Criminal defendants enjoy the best week of the new year, with three reversals.  The court dishes out a bevy of civil decisions, too, the moral of which is that in today's economy, it's best to do whatever you can to hold onto your job.

Continue reading "What's up in the 8th" »

Case Update

Not with a bang but a whimper:  after all the talk about the Supreme Court's using Briscoe v. Virginia to take another look at Melendez-Diaz v. Massachusetts, and possibly overrule it (see my posts here and here), last week the Court issues a per curiam decision vacating the Virginia Supreme Court's decision in Briscoe and remanding it back for reconsideration in light of Melendez-Diaz.  And last week the Ohio Supreme Court writes finis to State v. Crager.  After SCOTUS had vacated Crager and sent it back for review, the Ohio Supreme Court had initially done the same:  reversed its decision and remanded the case back to the trial court for determination of whether Melendez-Diaz barred the substitute analyst's testimony.  I questioned the decision, and the court, undoubtedly prompted by my criticism, decided instead to itself reconsider the case.  Upon further reflection, the court apparently concluded I wasn't worth listening to -- a sentiment shared by countless others, including my wife -- reinstated its earlier decision, and sent the case back down.

SCOTUS is in recess until February 19.  Its Ohio counterpart handed down a couple of decisions, one of which, State v. Williams, we discussed on Thursday, and we'll talk about again this Wednesday.  Another was Graves v. Circleville, involving a case in which police allowed Cornelius Copley to retrieve his car from the police impound lot the day after he was arrested for drunk driving; the next day, while again driving drunk, Copley killed Jillian Graves.  The police defended her estate's suit by claiming that they were entitled to a "public duty" exception that the Supreme Court had created back in 1988:  that an employee can't be held liable for breach of a duty he owes the general public, rather than a specific individual.  The court scraps the public duty rule, noting that it was adopted before the current sovereign immunity statute, and agreeing with the 4th District that the estate had presented sufficient evidence to survive summary judgment on its claim that the officers' conduct constituted "willful and wanton misconduct," exempting them from the protection of the statute.

So, onward to the courts of appeals, where the only cases of note are criminal...

Continue reading "Case Update" »

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Recent Entries

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