Yeah, but Ohio State had a lot more guys go in the NFL draft.  Over at the Volokh Conspiracy, Dave Bernstein points out

The president went to Harvard, and barely defeated a primary opponent who went to Yale.  His predecessor went to Yale and Harvard, and defeated opponents who went to Yale and Harvard, and Harvard, respectively.  The previous two presidents also went to Yale, with Bush I defeating another Harvard grad for the presidency. And once Elena Kagan gets confirmed, every Supreme Court Justice will have attended Harvard or Yale law schools.

Besides the (lack of) diversity issue, others have expressed concern over the absence of a paper trial evincing anything about Kagan’s core beliefs.  But the American Family Association rightly — pun fully intended — directs us to the real issue here:  Kagan’s sexual proclivities.

It’s time we got over the myth that what a public servant does in his private life is of no consequence. We cannot afford to have another sexually abnormal individual in a position of important civic responsibility, especially when that individual could become one of nine votes in an out of control oligarchy that constantly usurps constitutional prerogatives to unethically and illegally legislate for 300 million Americans.

The stakes are too high. Social conservatives must rise up as one and say no lesbian is qualified to sit on the Supreme Court. Will they?

We can only hope.

Things I didn’t know, Volume 24.  So your client’s worried about getting  a job if he gets a criminal conviction?  Thanks to the guys over at the Ohio Employer’s Law Blog, I learned that, according to the EEOC, a blanket policy of not hiring applicants with criminal records is a no-no:

Although Title VII does not, on its face, prohibit discrimination on the basis of conviction records, the EEOC and courts have concluded that a policy or practice of excluding individuals from employment on the basis of their conviction records may have an adverse impact on certain minority groups in light of statistics showing that they are convicted at a rate disproportionate to their representation in the population.

Now that a class action lawsuit has been filed against Accenture on this basis, some employers might take a second look at their policies. 

And “Ambulance Chasing 101″ has been approved for 3 CLE credits.  Look, I know you’re trying to distinguish between “hard” injuries, for which there is objective evidence like an X-ray of a broken foot, and “soft-tissue” injuries, where the evidence is, shall we say, less solid, often largely dependent your client’s whiny and wholly incredible testimony that, since the accident, he has had to endure constant pain of a degree not normally encountered outside of Apache torture sessions.  But still, if you’re the national bar assocation for plaintiffs’ personal injury lawyers, did you really think you’d be able to hold a seminar entitled “Injuries Without Evidence,” and nobody would make fun of you for it? 

Blogiversary.   I start doing this four years ago.  I’ve never for a moment regretted that decision.  Yes, it does take up a fair amount of time (about twelve hours a week).  No, I don’t have anybody helping me with it.  Yes, there are Sunday mornings when I’m doing the stuff for the Monday Case Update that I think I’d rather do something else.

I spent a while trying to figure out what exactly I wanted to do with this.  There are a lot of very good criminal law blogs out there, and they do a number of different things:  provide insight as to the nature of the practice, share war stories, point to particular outrages or injustices, or even work toward making changes in the justice system.  I finally settled on the reason I originally started this:  to help out solo and small firm practitioners who don’t have the time or resources to keep abreast of what’s happening in the law.  This place does what it says:  provides commentary and analysis of Ohio law.  If you practice criminal law with a smattering of civil stuff, like a lot of solo and small firm practitioners do, you could do worse than spend the three minutes a day it takes to read this.  Plus, I think I make a reasonably good effort to keep it interesting, if not downright snarky at times.

Anyway, I don’t know how long I’ll keep doing this, but as long as it’s fun, I’ll keep doing it.  And it’s fun.

Legal ad of the week.  Yeah, I know I made fun of them a few a paragraphs ago, but at least these plaintiffs’ attorneys don’t take themselves too seriously.

Your client is charged with rape.  He wants to testify that it was consensual, and that the victim was actually a prostitute who enticed him to go to her apartment with an offer of sex, then claimed rape in order to get his money.  No, your client’s not going to testify to that, says the trial court, because that’s barred by the rape shield statute.

No it’s not, said the 8th District last week in State v. Ciacchi. (keep reading…)

Our old friend allied offenses drops by for a visit (four of them, in fact), but the state learns again that the 8th District is not their friend on 4th Amendment cases, as the court hands down only a dozen decisions this week, eleven of them criminal. (keep reading…)

We looked at the US and Ohio Supreme Court decisions yesterday, so we’ll pop the top and take a gander at the appellate decisions from the past week today… (keep reading…)

May’s the busy month for SCOTUS:  oral arguments are over, and there’s nothing left to do but write and exchange the majority, concurring, and dissenting opinions in the forty-two cases still left to be decided.  Future generations will probably not be debating the consequences of the two decisions handed down this past week.  In Hui v. Castaneda, Public Health Service officials refused to authorize medical treatment for a lesion discovered on Castaneda’s penis; when he died a year later, his family sued under what’s known as a Bivens claim, based on a 1971 decision which held that violation of a constitutional right could serve as the basis of civil claim against the government.  Not so here, the Court ruled unanimously; the Federal Tort Claims Act specifically provided the sole basis for bringing a claim, and specifically granted the medical personnel immunity.  In Renico v. Lett, the the lower courts had granted habeas relief, finding that a Michigan judge’s decision to declare a hung jury and grant a mistrial after only two hours of deliberations violated the defendant’s double jeopardy rights because it wasn’t a “manifest necessity.”  Maybe so, maybe not, the Court ruled, but reversed, finding that the decision wasn’t sufficiently erroneous under “clearly established Federal law” to warrant relief. 

The Ohio Supreme Court emerged from its dormant state after a three-week hiatus following the death of Chief Justice Moyer, issuing several decisions, the most notable of which was State v. Prade, discussed here Friday.  There were several other criminal cases of note.  In State v. Malien, the defendant, a nurse, had been caught stealing drugs from the hospital where she was employed.  She had applied for treatment in lieu of conviction, but the state had argued she was ineligible under the statutory provision which prohibited granting such treatment to those who occupied “a position of trust.”  Appellate court decisions have been all over the lot on this issue, with some holding that any position of trust — a college student entrusted with school property, a parent obligated to pay child support to his offspring — fell within the meaning of the statute, and others holding that only those who held office or a position of trust with regard to the public were within its ambit.   The court took a middle road, deciding that the statute applied only to a person in a fidicuiary relationship to another.  A nurse wasn’t a fiduciary of either the hospital or her patients, and so the court upheld the lower court’s rulings, which will allow Malien to avoid conviction if she completes treatment.

The bigger action was in the civil arena.  Jacques v. Manton was a personal injury case in which the plaintiff had incurred over $21,000 in medical expenses, and her providers had agreed to accept some $7,000 from her insurance company in full payment.  Can defendant introduce evidence of the write-off?  The court said yes four years ago in Robinson v. Bates, but didn’t consider the effect of RC 2315.20 because that statute was enacted after the plaintiff’s injury in Robinson.  Jacques comes to the conclusion that the statute doesn’t affect the result, for reasons I can’t explain because my head started to hurt while reading the opinion.  Suffice it to say that if you’ve got a PI case going to trial, the defense is going to be able to introduce the fact that your client’s insurance company paid less for medical expenses than the doctors and hospitals billed him.

In Pratte v. Stewart, the plaintiff claimed to have been sexually abused by her father.  The problem was that the abuse allegedly occurred in 1984, and Pratte didn’t file suit until 2008, when she was 33 years old, claiming that she had repressed the memories of the abuse until just the year before.  Precedent was involved here, too; back in 1994 in Ault v. Jasko, the court had developed a discovery rule with regard to sexual abuse suits based on recovered memories:  the suit could be filed within a year after the memories were recovered.

The Ault decision largely looked to other jurisdictions which had developed such a discovery rule, but that came at a time when “recovered  memories” was the flavor of the day in psychological circles.  The evidence supporting it has turned out to be rather flimsy, and even in Ault, the dissenters argued that the legislature should be the body to sort through it and come up with a rule on a statute of limitation.  The legislature did, and in Pratte the court rightly concludes that the statute clearly provides for a 12-year statute of limitations on such cases after the plaintiff reaches more majority, with no exceptions. 

In Neil-Pettit v. Lahman, the defendant, while driving drunk and fleeing the scene of an earlier accident, doubled the damage total by hitting Niel-Pettit’s vehicle and injuring her.  The jury awarded $113,800 in compensatory damages, $75,000 in punitive damages, and attorney fees, later determined by the judge to be $46,825.  Lahman’s insurer, Allstate — which, in the plaintiff trial bar’s Pantheon of Evil ranks just a notch below Satan — argued that it shouldn’t be liable for the attorney fees, on the somewhat understandable argument that such fees depended upon an award of punitive damages, and public policy prevents an insurer for being responsible for punitives.  Not so, said the court; attorney fees are intended as compensation, punitive damages as punishment, and so Allstate is forced to open its wallet.

Finally, do you remember the “fitness examinations” we had to go through in order to sit for the bar exam?  I have some vague recollection of going over to a room in the old courthouse where three lawyers who were older than God asked me a few questions and then sent me on my way, convinced I wasn’t a threat to the Republic.  It’s a bit more serious now, as evidenced by In re Brown, in which the court concurs that the applicant doesn’t yet quite have what it takes to sit for the bar examination, because he neglected to report on his application that he had been sued for copyright infringement by Disney for buying 300 to 500 fake DVD’s from China and then selling them on E-Bay.  When he claimed ignorance of the questionable provenance of his purchase – China is notorious for violations of intellectual property law, and the DVD’s cost $6 to $10 a copy — he was treated to this bit of avuncular advice from the chairman of the committee: “You know, my daddy always told me, you buy a diamond ring for 10 cents, you got exactly that, a 10 cent ring.”

Connect the dots.  First this:  On Tuesday, in State v. Prade, the Ohio Supreme Court reversed a lower court determination that a defendant wasn’t entitled to new DNA testing.  Prade had been convicted of killing his wife, a doctor, and the lab coat she was wearing at the time she was killed showed a bite mark, but DNA testing at the time couldn’t isolate the killer’s DNA from the blood of the victim.  Prade filed a motion in 2008 arguing that new technology could do so, but the trial and appellate courts found that he wasn’t entitled to a new test because the statute didn’t permit one where previous testing was “definitive,” and Prade had been “definitively excluded” by the prior test.  The Supreme Court found that the state argued too narrow a meaning of the term; the only reason Prade had been excluded in the previous test was because the test wasn’t sophisticated enough to pick out the killer’s DNA, and the present tests might be. 

Then this:

CLEVELAND, Ohio — A 52-year-old man who had more than half his life taken away by a wrongful conviction for rape showed no hostility Wednesday as he took his first steps as a free man in 29 years.

Towler entered prison at age 24 for a crime he didn’t commit. But two days after DNA tests proved his innocence, the middle-aged man with a salt-and-pepper beard said he doesn’t blame anyone for the injustice bestowed upon him.

Then this:

COLUMBUS, Ohio — Modern pressures on the judicial system have raised the chance a defendant could be wrongly sentenced to death, Supreme Court Justice John Paul Stevens said Wednesday, explaining his changed view on the constitutionality of capital punishment.

“The risk of an incorrect decision has increased,” he told an audience of hundreds of lawyers and judges at a judicial conference here, responding to a question about his 2008 assertion that the death penalty should be abolished. He said that because of advances in DNA testing, which have led to the freeing of some innocent convicts, “we’re more aware of the risk than we might have been before.”

Adam Walsh Update.  I’ve mentioned that there are still some major cases in the US Supreme Court that haven’t been ruled upon, but there are a few pending in the Ohio Supreme Court, too, probably the most significant of which is the constitutionality of the Adam Walsh Act.  The case was argued last November (discussion here), but I don’t see a ruling anytime soon.  The decision was likely to be 4-3, with Tom Moyer being the swing vote, and his death removes that possibility.  New Chief Justice Eric Brown could call for reargument of the case, and probably will, but he’s in no hurry to do so.  If you’re wondering why, take a look at the calendar, especially November 2, 2010.  That’s election day, when Brown and present Justice Maureen O’Connor will face off for the Chief Justice spot.  If you think the Supreme Court is going to make a ruling on something as controversial as sex offender registration before that, you’re a lot less cynical than I am.

Time out with the dictionary.  “Paramilitary:  of or relating to a group of civilians organized to function like or to assist a military unit.”

I didn’t make it through the video below.  It’s very blurry at first, but then it gets into focus, and you see the cops, wearing helmets and the normal swat gear, pounding on the door of a home at night, then breaking down the door of and running inside.  You hear barking, then some shots, then the barking stops.  You see some guy on the floor in his underwear, several cops standing over him with their guns trained on him.  You see one of the cops leading a little boy out of the house.

That’s when I stopped watching, because I knew how it ended.  Not the video, the story.  This was a drug raid, of course.  The police found an amount of marijuana, but only enough for a misdemeanor charge.

But the prosecutors in Columbia, Missouri, where the raid took place, have a sense of humor, because they charged the husband and wife with endangering children, due to the presence of drugs in the house.  I say they have a sense of humor because it’s got to be a joke.  I mean, can you imagine a prosecutor standing in front of a jury and telling them that they should convict a man of endangering his 6-year-old kid by having marijuana in the house, which the police discovered when a group of them broke down the door of the house and rampaged through it waving guns, and shooting the family dogs in front of kid? 

So anyway, watch the video, which I found courtesy of Jeff Gamso’s always excellent blog, although he admits that he got it from someplace else, too.  Maybe you’ll have the stomach to be able to watch the whole thing.  Hell, I don’t know, maybe you’ll watch it and think that this is the way things should work, that if this is price we have to pay to get drugs off the street, well, then, this is the price we have to pay.

And I respect your views, but frankly, I think this shit has got to stop.

Napoleon is supposed to have said that he preferred lucky generals to good ones.  He would’ve liked me. (keep reading…)

Back when I started practicing in 1975, there were 34 judges on the Common Pleas bench here in Cuyahoga County, and they handled about 2500 criminal cases a year.  Now, we have the same number of judges, but they handle ten times as many criminal cases.

So here’s the way it works.  Let’s say you talk to the prosecutor, and the case can’t be pled out.  The two of you will walk back to the bailiff, PDA’s in hand, and the bailiff will look through the judge’s calendar — a loose-leaf binder with a lined page for each day — and after the appropriate consulation will write down your case for trial on a particular date, sometimes a few weeks away, sometimes a few months. 

And then, a few weeks or a few months later, you’ll go over for trial, and find that (a) one of the four or five other cases scheduled for trial that day will be going forward instead, or (b) the judge is already in a trial on another case that started a day or two before yours.  So you’ll talk to the bailiff and get another date at some time in the future — anywhere from two to six weeks later — and the bailiff will put together a journal entry saying that your trial had to be continued because the court was already engaged in another matter, and the judge will sign it, and that will be that.

After the 8th District’s decision last week in State v. Pirkel, that could change. (keep reading…)

There was only one win for defendants in the near-dozen cases the 8th District produced this week, but it’s such a biggie that it gets its own post tomorrow.  The rest of the crop: (keep reading…)

As I mentioned last week, SCOTUS has ended oral arguments for the term; among the most notable last week was Doe v. Reed, in which the Court is asked to decide whether a state public records law requires the disclosure of signers of an anti-gay-marriage ballot petition initiative.  The notable decision from the Court was Salazar v. Buono, in which the Court upheld, by a 5-4 vote, a 2004 law which had authorized a veterans group to erect a Christian cross on the Federal land in the Mojave desert.  The cross had been there since 1937, but nobody had raised an issue about it until a Buddhist group was denied right to build a shrine nearby. 

While SCOTUS has decided 33 cases so far, 44 that have been argued this term still are awaiting decision.  Courtesy of SCOTUSBlog, here’s a list of the cases still pending.  The big ones are on the imposition of life without parole sentences on juveniles, discussed here and here, and the prosecutions under the “honest services” law, discussed here.

Nothing from the gang down in Columbus except for the flogging of the usual lawyer miscreants, so let’s get to the courts of appeals…

(keep reading…)