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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

Twin rulings on Miranda were the flavor of the week down in DC:  in Maryland v. Schatzer, the Court announced a new rule as to when police could resume interrogation of a suspect after he'd invoked his Miranda rights, and in Florida v. Powell, the Court upheld a version of the Miranda warnings which didn't specifically advise the defendant that he had the right to have counsel present during questioning.  I'll talk about those in more detail later this week. 

The third of a trio of "honest services" cases hits the Supreme Court for argument this week.  I explained the problems with the law when the first two were argued last December, but those involved technical applications of the statute.  The argument this week, in the case involving former Enron exec Jeff Skilling, squarely presents the issue of the law's constitutionality, primarily in terms of its vagueness.  No decision has been rendered in the first two cases, and the outcome of Skilling's case could decide those as well.

An even bigger case, potentially, is McDonald v. City of Chicago, which presents the question left unresolved two years ago in DC v. Heller:  does the 2nd Amendment apply to state and local governments?  The decision could have some major ramifications on state gun regulations and laws.  Then again, I thought that Heller would, too (and I wasn't alone), and that didn't exactly pan outMcDonald will be argued tomorrow, so I'll see how that goes, and I may have a post on that, too.  Or not.

One of the developments in criminal law over the past decade or two is the substantial expansion in juveniles being prosecuted as adults, and especially the inclusion of offenses for which bindover to adult court is mandatory.  Two years ago, in In re AJS, the Ohio Supreme Court had held that the state could appeal a juvenile court's ruling denying mandatory bindover.  Last week in In re MP, the court unanimously held that discretionary bindovers -- where the court finds probable cause to believe the juvenile committed the offense, but concludes that he's amenable to rehabilitation in the juvenile system -- are not appealable.  Considering the attitude toward crime and juveniles, don't be surprised if the legislature changes this.

That was about the only decision of note in Columbus, other than six -- count'em, six -- disciplinary decisions involving wayward attorneys (and one judge), so let's get to the courts of appeals...

Civil.  Mortgagee is real party in interest in foreclosure suit even if it doesn't acquire the mortgage until after the foreclosure is filed, says 6th District... Plaintiff sues tortfeasor and own insurance company under underinsured motorist coverage, insurer files cross-claim against tortfeasor for subrogation of medical bills; 1st District says lack of counterclaim means court can't order plaintiff to reimburse insurer for those bills... 90-day time for filing appeal of an arbitration award runs from date of postmark, not date of actual delivery, says 8th District...

Criminal.  Order of $83,739 in restitution contrary to law where no indication that amount was reasonably related to loss, even though defendant pled guilty, and did not object to restitution amount, 6th District rules... 8th District holds that trial court committed error at resentencing of defendant due to post-release control error when it failed to advise him of his appellate rights and right to appointed counsel... Mirabile dictu:  trial court grants motion for new trial because prosecutor failed to disclose that state witness had felony record, 9th District affirms; good review of law on criminal discovery violations... 12th District says that standard for authentication of email/instant message communications is only reasonable likelihood, less demanding than preponderance of evidence...

One for the road.  Kurt Rasmussen, in Akron for a business appointment, partied a little too heavily after its conclusion:  at 2:30 the next morning he was busted for driving drunk, and blew a .144 on the breathalyzer.  He was arraigned six hours later, and in State v. Rasmussen, the 9th District rejects his claim that his plea was not knowing and voluntary because he was still drunk.  Although the transcript of the plea shows that the trial judge indicated that Rasmussen "seem[ed] to be acting oddly," and that the judge was "trying to figure out whether or not you're of sound mind and not under the influence now, so that your decisions  [to plead guilty] are sound ones," the appellate court held the judge was not under an obligation to give Rasmussen another BAC test before accepting his plea.

Cases I never finished reading.  The first line of the 4th District's decision in McLaughlin v. McLaughlin:  "This is the fourth appeal by the parties in this case, which began in April 1993 when Carol filed a complaint for divorce."

By way of explanation.  I know, you saw the first case mentioned in the "Civil" category and thought, "Jeez, Bensing is reading foreclosure cases now?  Has he lost his mind?"  Well, I sort of skimmed over it, and realized it was the only mortgage case I ever understood, so decided to include it here.  I must admit that I find your concern for my mental health touching, and under the circumstances, appropriate.


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