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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

SCOTUS goes back into session next week, with decisions to be announced on Tuesday and Wednesday.  Still on the list of undecided cases are the two on life imprisonment without parole for juveniles.  If those come down, I'll have a post on that on Thursday.  If they don't, and something else interesting comes down, I'll do a post on that.  If nothing interesting comes down, I'll do a post on the oral argument, scheduled for Monday, in City of Ontario v. Quon, which presents the question of whether a police officer can be fired for using his department-issued pager for personal messages.  Or I'll do a post on something else.  You can count on it.

The big news from Columbus, of course, is Governor Strickland's appointment of Franklin County Probate Judge Eric Brown to the chief justice position vacated by Tom Moyer's death two weeks ago.  Brown was the Democratic candidate for the position, which is up for election this year.  (Justice Maureen O'Connor is the Republican candidate; Moyer was not eligible to run again because of age.)  This engendered criticism about "politics as usual" from several quarters, as if a system which insists on electing appellate judges isn't political. 

The only decision of note was State ex rel. Toledo Blade v. Henry County Common Pleas, where the trial judge had imposed a gag order precluding the media from reporting on a murder trial for fear that the co-defendant's trial, scheduled to follow, could be adversely impacted by the publicity.  The problem was that the judge decided that the defendant's right to a fair trial had priority over the media's First Amendment rights, and that's not the way it works.  A prior restraint must be based on various findings, and the judge failed to make the record to support it.

On to the courts of appeals, where not much was happening, either...

Criminal.  6th District says that nunc pro tunc entry not sufficient to correct lack of post-release controls prior to effective date of RC 2919.191; reversal and resentencing necessary... Although corrupt activities statute contains its own exclusive forfeiture provision, state can proceed on general forfeiture statute for contraband if defendant also convicted of theft, says 8th District... 10th District upholds analyst's use of sampling method for crack cocaine; defendant found with 43 baggies of crack, analyst tested 8 of them, then weighed them all... For the umpteenth time, as the 5th District notes, when advising a defendant at a plea hearing of his right to jury trial, the judge does not have to tell the defendant that the jury's verdict must be unanimous... Felonious assault and domestic violence are not allied offenses, says 1st District...

Civil.  Plaintiff did not obtain valid service on defendant where defendant claimed he moved several times, never got copy of complaint; 8th District says judgment void, motion to vacate should've been granted... 1st District says that employee seeking workers comp benefits for specific medical condition need not claim aggravation of that condition to raise it in appeal; aggravation not a separate injury, but merely a different theory of causation...

Bad decision of the week.  In State v. Brown, the Defendant had robbed a bank, pressing a "hard object" into the back of the tellers, and warning them that he'd shoot them if they didn't do what he said.  Turns out the "gun" was a screwdriver.  The 6th District upholds his 34-year sentence after lengthy recitation of the law regarding whether a screwdriver can be a deadly weapon, then proceeds to the issue of whether "a factfinder may infer that the defendant possessed a deadly weapon based on his words or conduct."  Citing a bunch of cases which hold that the factfinder can, the court concludes that "Brown's words and actions could lead reasonable factfinder to infer that he in fact did have a gun."

But that's not the question.  In those cases, the issue was whether or not the defendant did have a gun, and inferences were necessary because no gun had been recovered.  That's not the situation here; Brown was arrested right after committing the crime, and there's no question that the "gun" was in fact a screwdriver.  The real issue was whether the screwdriver was used as a deadly weapon.  A pair of shoes might be a deadly weapon if I kick you death, but my telling you that I'm going to shoot you with them doesn't make them a deadly weapon, or a gun.


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