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Case Update

The big news out of DC is, of course, the retirement of Justice John Paul Stevens, the court's most liberal member, at the end of this term.  Everybody already smells blood in the water as President Obama mulls over a replacement pick, and the urging from this quarter is that the matter be resolved through trial by combat:  give, say, potential nominee Elena Kagan and Republican Senate Majority leader Mitch McConnell their choice of weapons, put them in a cage, and see who comes out alive.  My guess is that it would prove more dignified than the last several nomination hearings.

The only decision out of Columbus was Lambert v. Clancy, which comes to the unsurprising conclusion that when an officeholder is sued in his official capacity, the sovereign immunity analysis applies.  But there were also a couple of interesting slip opinions.  Back in February, in State v. Williams, the Ohio Supreme Court held that attempted murder and felonious assault were allied offenses.  I argued that the opinion, while not coming out and expressly saying so, also held that a defendant could be prosecuted for one count of either for each shot he fired, or knife stab he inflicted.  (Discussion here and here.)  This week, citing Williams, the court summarily disposed of two cases involving the identical issue of allied offenses.  In both, they held that attempted murder and felonious assault were allied offenses; in both, they reversed the lower courts' determination that the multiple counts of felonious assaults merged as well.  In State v. Hammond, the 1st District had held that the felonious assault counts for two shots had merged; in State v. Ortiz, the 8th had merged several felonious assault counts involving separate stab wounds.

On to the courts of appeals...

Criminal.  1st District says that domestic violence and felonious assault are not allied offenses... Although police officer's stop of defendant violated 4513.39 because he was outside his jurisdiction, this didn't trigger application of exclusionary rule, 6th District holds;' evidence found after stop was admissible... Speedy trial waiver executed during pendency of first case still applied when that case was dismissed and defendant was indicted on identical charge, says 2nd District... Failure of trial judge to notify defendant of prison sentence that will be imposed for violation of community control sanctions normally prevents judge from imposing sentence for violation, says 8th District, but failure can be "cured" if court notifies defendant of potential sentence at subsequent violation hearing, as long as sentence is not imposed at that point... Waiting 12 minutes for drug dog to show up did not "unreasonably prolong" traffic stop, says 12th District... To find defendant a probation violator because he violated the law, mere arrest insufficient, says 2nd District; state need not prove that defendant committed a crime, but must show "substantial evidence" that defendant violated the law...

Civil.  6th District holds that trial court abused discretion in not fidning credible  defendant's claim that he never received service , vacates default judgment... Child support bureau entitled to "reasonable attorney fees" for bringing contempt action against defendant for failure to pay child support, says 12th District... "Independent corroborative evidence" of hit-and-run sufficient to trigger UMI coverage of insurance policy need not come from independent 3rd party witness, says 6th District; testimony of driver and passenger, medical records, and police report sufficient to create issue of fact... Statute of limitations for employment discrimination action against State of Ohio is two-year period for actions against state, not six years for discrimination actions, says 10th District... 3rd District upholds dismissal of suit under forum non conveniens; good discussion of doctrine...

Novel argument of the week.  In State v. Salah, the defendant sought to withdraw his plea to three counts of gross sexual imposition and seven counts of illegal use of a minor in nudity-oriented material, for which he was ultimately sentenced to 25 years.  In his brief, Salah argued that the motion to withdraw a plea should be likened to "an individual suffering from buyer's remorse attempting to void a commercial transaction during the 'cooling off' period as permissible under Ohio's consumer protection laws."  That worked out about how you'd think it would:

The differences between one's decision to forego his constitutional right to due process and second guessing an impulse buy are simply too many to elaborate.

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