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Case Update

We start our runup to Spring Break -- I'll be on vacation next week, filming more of those "Girls Gone Wild" videos I use to supplement the meager income from my law practice -- with a paucity of news from DC; the only decision of note (to me, at least), was Johnson v. US, which concerned the Federal Armed Career Criminal Act.  The Court held that the Florida battery statute which required mere offensive touching of another person did not have "physical force" as an element, and thus didn't constitute a "violent felony" for purposes of the ACCA.  That's a big win for Johnson; ACCA status adds a 15-year mandatory minimum to a prison sentence.

Last year was a big year for decisions by the Court on the 4th Amendment:  we had Herring v. US, Arizona v. Johnson, and Arizona v. Gant.  This year might be a big one for the 5th:  the Court heard argument on its third Miranda case, Berghuis v. Thompkins, this past week.  Berghuis involves the question of when a suspect can be impliedly considered to have waved his right to remain silent during interrogation, and I'll have more on that later this week.

I'll also have more on the two big Ohio Supreme Court's decisions last week, one in the "deaf juror" case, State v. Speer (oral argument discussed here), and the other, State v. Jackson, dealing with the question of derivative use of a compelled statement. 

Perhaps one of the most interesting decisions the court made last week was one that it... well, didn't really make.  I've mentioned before that amendments to those statutes permit the Adult Parole Authority to impose PRC even if the trial court doesn't order it, which seems to contradict earlier Supreme Court decisions that doing so would be a violation of the separation of powers doctrine.  The court's managed to dodge that issue up to now, and does so again in State v. FullerIn that case, the appellate court had held that, because the new statutes allowed the APA to  impose PRC (and I'll have another serving of alpahabet soup), the failulre of the trial judge to do so was irrelevant.  The Supreme Court reverses, the opinion's single paragraph referring to State v. Singleton (discussed here).  Pfeifer writes a compelling dissent, arguing that the court should take up the issue of the new statutes' constitutionality, to no avail.

On to the courts of appeals, and some especially good decisions from the 2nd District...

Criminal.  While there must be a factual basis for an Alford plea, prosecution need not state evidence going to every element of crime, says 6th District; defendant in abduction case argued that State hadn't presented evidence on issue of "privilege"... Where defendant moves to withdraw plea and claims that counsel's advice prompted her to plead, no violation of attorney-client privilege to allow lawyer to testify he didn't give her that advise, 2nd District says... In aggravated riot case, 8th District holds that co-defendant's acquittal in separate trial is inadmissible in defendant's trial... 9th District rejects Batson challenge, but concurrence argues that issue should be decided on whether court's decision finding no discriminatory intent was based on insufficient evidence or against manifest weight of evidence, rather than on Federal "clearly erroneous" standard; how this would affect decision escapes me... Whatever happened to modeling glue?  12th District affirms juvenile's delinquency adjudication for "abusing harmful intoxicants," namely, sniffing "3M Dust Remover"... Wow:  2nd District reverses maximum, consecutive 18-year sentence on first offender as abuse of discretion, finds that facts in record do not justify sentence...  Evidence to authenticate audio recording as defendant's voice need only be sufficient to afford a rational basis for jury to decide that evidence is what proponent claims it to be, says 12th District... State failed to use sufficient efforts to bring reluctant witness to court, she was not "unavailable" so as to allow use of her prior testimony, 2nd District rules...

Civil.  Good decision from 3rd District on what constitutes "change of circumstances" for modification of child custody:  movant must show that change adversely impacted child... Reason #43 why I don't practice commercial law:  it sucks.  Original mortgagee falsifies papers, lies to couple, then sells mortgage note to third party, who forecloses; 4th District holds that unclean hands doctrine only applies to original mortgagee, can't be raised as a defense...

Eeeewwww Moment of the Week.  In Walls v. Travel Ctrs., the 6th District affirms the trial court's grant of summary judgment to the defendant, operator of a truck stop, for an invasion of privacy claim.  It was a "customary practice" of the plaintiff, a commercial truck driver, to "avail himself of certain services offered at the facility."  Those facilities included a "massage room" consisting of "partial walls, no ceiling, and two tables separated by a curtain."  On one occasion, the plaintiff observed a video monitoring system.  Despite evidence that the system was pointed at the cash register and intended only to monitor that, the plaintiff "claimed to be distraught by the possibility that video footage exists of him in a state of undress," and sued for a million dollars.

My guess is that if you go to a massage parlor at a truck stop, the least of your concerns is whether you'll be videotaped "in a state of undress."

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