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Case Update

The big case out of DC was Berghuis v. Thompkins, involving the question of when a suspect properly invokes or waives his Miranda rights.  I promised to do something on that last week, but the Monster Cage Death Match interfered.  ("How'd that go, Russ?"  Well, let's put it this way, I've always been a military history buff, and now I have a fuller appreciation of how Custer felt at the Little Bighorn.)  I'm a man who keeps my promises, except when I don't, so believe me when I tell you I'll get to that on Wednesday, and it may be that I will.

We covered the Bodyke decision on Friday, and the other biggie out of Columbus was City of Barberton v. Jenney, which held that an officer's estimation of speed, unaided by radar or other similar devices, is sufficient to sustain a conviction of speeding.  Although the decision has generated the expected wailing and gnashing of teeth, several points to keep in mind:  (1) this was already the law everywhere in Ohio outside of Cuyahoga County; only the 8th District held the contrary; (2) the decision doesn't allow any officer to testify as to speed, but only those who are "trained, certified by the Ohio Peace Officer Training Academy. . . , and experienced in visually estimating vehicle speedIn the courts of appeals..."

The problem with the decision is that it requires differentiation between a trial court standard of proof and an appellate standard of review.  Jenney was proposing a "bright line" rule:  that only evidence provided by some speed-measuring device was enough to convict.  The court's rejection of this was arguably correct; there are certainly circumstances where a trained officer's estimation of speed would be legally sufficient.  Unfortunately, there's the likelihood that a lot of trial judges are going to interpret "legally sufficient to stand on appeal" with "that's enough for me to find someone guilty."  The result will be that in some courts, an officer's testimony on that issue will be accepted automatically and uncritically.  Like that doesn't happen anyway.

A quick look at the courts of appeals, where it was a slow week...

Criminal.  Defendant not entitled to instruction on voluntary manslaughter when he claims self-defense, 8th District rules... Decision to revoke probation reviewable only for abuse of discretion, says 10th District... Officer stops car for no license plates, when he gets out he sees temporary tag in window, 8th District says he should have gotten back in his car and left, instead of going up to driver and asking him for license; denial of motion to suppress reversed... Defendant who commits sexual misconduct with minor and is less than four years older than victim can be classified as Tier I sex offender only if sex was nonconsensual; 12th District agrees with 9th that this means trial court must hold a hearing on that issue...

Civil.  8th District holds that city entitled to sovereign immunity for intentional tort actions by employees... 10th District affirms grant of summary judgment, holds that surrogacy contract rebuts presumption that surrogate is legal parent of child... Plaintiff in age discrimination case provided sufficient evidence that company's claimed reason for termination was pretextual, 8th District holds...  

<Your off-color joke here>.  In Davenport v. Big Brothers and Big Sisters, the 2nd District affirms the grant of summary judgment in an employment case.  The plaintiff had claimed she was fired for opposing various fund-raisers the organization held, including alcohol-related events and a "sex toy" party hosted by one of the employees.  The opinion contains this memorable guidance for lower courts: 

Retaliation against an employee for opposing a sex-toy party simply does not constitute retaliation for opposing unlawful discrimination on the basis of religion or sex.

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