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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

The only significant decision out of SCOTUS this past week (significant to me, anyway) was US v. Stevens, which struck down on First Amendment grounds the federal statute banning creation or sale of depictions of animal cruelty.  The opinion was not unexpected; the government was left to argue that animal cruelty videos should occupy a place exempt from any free speech protection, like child pornography.  When Bill Clinton had signed the law, he directed that it be enforced only against depictions of "wanton cruelty to animals designed to appeal to a prurient interest in sex."  That didn't happen, of course; Robert Stevens, the defendant in this case and the only person ever prosecuted under the law, sold videos of pit bull fights.  Perhaps the most interesting part of the opinion is its response to the argument that the government would interpret the statute narrowly:  "We would not uphold an unconstitional statute merely because the government promised to use it responsibly."  This may be a foreshadowing of the decision in the trio of "honest services" cases still awaiting decision (discussed here); there too the government seeks to preserve an exceedingly broad statute by saying that it can be trusted to prosecute it responsibly. 

Down in Columbus, the Ohio Supreme Court resumed oral arguments, as I mentioned last week.  Somewhat poignant was the empty seat in the middle, vacated by Chief Justice Tom Moyer's sudden death two weeks ago.  Appointee Chief Justice Eric Brown will be assuming the seat a week from today.  If four votes can be mustered one way or the other in any of the cases heard with the seat vacant, they'll be decided; if the remaining six justices tie, Brown will review the case and cast the deciding vote, although he can also order re-argument.

Nothing else of significance came out of Columbus, so let's take a look at the courts of appeals...

Civil.  Parties make oral agreement for property purchase, buyer pays $35,500, but no written agreement signed; buyer entitled to return of money, as part payment doesn't take case out of statute of frauds requirement that sale of real property be in writing, says 6th District... 2nd District holds that trial court erred in not granting continuance of trial date when plaintiff's counsel withdrew 17 days before trial... Plaintiff should have submitted ssue of award of attorney fees to arbitration panel, couldn't move trial court for fees after confirmation of arbitration award, 8th District holds... 5th District says that trial court erred in age discrimination case in not instructing jury that plaintiff could prove case by showing that defendant retained younger person to perform plaintiff's duties, not just that defendant replaced plaintiff with younger person...

Criminal.  Co-defendant's allocution statement at his sentencing was not protected by Fifth Amendment, he could be questioned about it in defendant's trial, says 6th District... 2nd District finds that defense counsel rendered ineffective assistance for failing to file indigency affidavit for client before sentencing... Although officers violated CrimR 41 by not serving defendant copy of warrant at time of search and by not making return of warrant, failure to do so was not a constitutional violation requiring suppression of evidence, 8th District holds...  Officer's opening of screen door to apartment required search warrant, even when interior door was open, says 2nd District; defendant's throwing heroin down when officer appeared did not create exigent circumstances -- police can't create exigencies by their own conduct... Defendant's prior appeal on judgment entry that didn't meet standards for proper journal entry of conviction under State v. Baker was void, not entitled to res judicata or collateral estoppel effects, 6th District holds; this is same question presented in re judgments void for failure to impose post-release controls, which was argued in Supreme Court last week (discussion here)... 4th District says that juvenile properly waived counsel in adjudicatory hearing; good discussion of case law on issue... 12th District says that in prosecution for obstructing justice for "hindering apprehension of another for crime," state need not prove beyond reasonable doubt that other person did in fact commit crime; 5th and 9th Districts have ruled to the contrary...

She finally found a man who will listen.  In State v. West, the 2nd District rejects defendant's challenge to the admissibility of her statements following an accident.  The court had no difficulty finding that her admission of fault for the accident, made when the officer first approached her as she was sitting on the curb, was not the result of "custodial interrogation."  More problematic were the statements she made in the police cruiser after her arrest; despite being given Miranda warnings, she claimed that her intoxicated condition -- she blew a .21, almost three times the legal limit -- prevented her from comprehending the warnings.  Not so, said the court; while she "clearly exhibited behavior consistent with a person who is intoxicated," her volubility convinced the court that her reason was not so impaired she couldn't understand her rights: 

Defendant was very talkative, open, and engaging, and did not refuse to answer any question. Defendant just kept talking, wanting to get out her side of the story.


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