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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 handed down six decisions last week, two of some significance (well, to me, anyway).  US v. Marcus involved a defendant convicted of sex trafficking from the period 1998 to 2001.  The law hadn't gone into effect, though, until 2000, and on appeal Marcus argued that the judge had erred by not instructing the jury that pre-enactment conduct couldn't serve as the basis for their verdict.  Although Marcus hadn't raised the issue at trial, the 2nd District bought it on a plain error analysis.  The Supremes reverse 7-1 (Sotomayor didn't take part, as she was one of the judges who handled the case below), finding that the 2nd District's test for "plain error" was, well, erroneous:  the test requires a "reasonable probability" that the error affected the trial's outcome, while the 2nd District had used an "any possibility" standard.  More interestingly for Colon critics, the Court rejected the notion that the failure to give the jury instruction was "structural error." 

The only other criminal case decided by the Court was US v. O'Brien, in which the defendant was charged with attempted robbery with a firearm, and a count that the firearm was a machine gun.  The government moved to dismiss that count, stating they couldn't prove it beyond a reasonable doubt, but still insisted that the judge could give the defendant the 30-year mandatory minimum prison sentence that using a machine gun entailed by determining it was an enhancement on another count.  Nobody bought this, the Supreme Court affirming 9-0 that whether the firearm was a machine gun was an element of the offense, to be found by a jury, and not a sentencing factor.  This wasn't a Blakely issue; that case doesn't even get mentioned until the concurring opinion, and really was a question of construction of a Federal statute.

Down in Columbus, if you lose that time-stamped copy of a court filing, don't worry:  a document is "filed" with the clerk of courts when it's given to and accepted by the clerk, and when filing hasn't been endorsed, it can be proven by other means, says the Supreme Court in Zanesville v. RouseBut if you're filing a complaint near the expiration of the statute of limitations, and you don't know all the potential defendants' names, do worry:  in Erwin v. Bryan, the court says that the plaintiff's attempt to use the "John Doe" naming procedure doesn't work, because she knew the name of the doctor at the time she filed suit -- she just didn't know that he'd been negligent.  If I did more civil work and had more time, I'd spend some of it discussing the case in more detail.  Suffice it to say that if you do more civil work and you want to name "John Doe" defendants, you'd probably best be advised to put your carrier on notice when you file the complaint, regardless of whether you get a time-stamped copy.

Finally, in the lawyer discipline area, if you don't know what frotteurism is, you'll probably want to read this.  Moral of the story:  hitting on clients isn't a good idea, and hitting on the sheriff's deputy at the jail where you're visiting a client is an even worse one. 

In the courts of appeals...

Criminal.  Trial court finds defendant a probation violator because he didn't pay his fines, 1st District reverses, says that to revoke probation for nonpayment of fines or costs, court must inquire into reasons for failure, can only revoke if failure "willful and not the result of indigence"... Defendant's throwing heroin away as he was being chased by police sufficient to establish tampering with evidence, rules 3rd District... Even though victim was incompetent to testify, her hearsay statements to hospital social worker were admissible as statements made for purposes of medical diagnosis and treatment, 1st District holds... Criminal Rule 11(C)(2) does not require defendant to be informed at plea hearing that he has a right to waive a jury and try the case to the judge, 9th District rules... Speedy trial statute for inmates under 2941.401 controls over general speedy trial statute, says 5th District... Trial court didn't err by allowing state to reopen its case to prove venue, says 12th District...

Civil.  Prosecutor entitled to absolute immunity, provision creating exception to sovereign immunity for "willful and wanton misconduct" never comes into play, says 8th District... Continuing tort theory provides that cause of action does not accrue until tortious conduct ceases, not available to plaintiff who alleges a single act of negligence, 10th District holds... 4th District affirms award of $17,000 in repayment of spousal support to ex-husband; decree provided that support was to terminate upon wife's cohabitation, husband suspected wife was cohabitating but waited two years to file motion to terminate, court says that wife didn't establish prejudice so as to warrant application of doctrine of laches... Personal jurisdiction over foreign corporation not established merely because it solicits business in this state, says 10th District; must have "transacted business," i.e., "business operations set in motion by defendant have a realistic impact on Ohio commerce"... 3rd District affirms grant of new trial based on inconsistencies between jury's answers to interrogatories and verdict...

Yes, it's a pro se complaint.  In Dublin v. Bansek, the 10th District reviews the dismissal of Dublin's lawsuit on statute of limitations grounds.  Dublin's complaint, "though somewhat difficult to decipher," essentially alleged that his ex-wife called the police "for no reason," and when he obligingly -- and, my guess, unnecessarily -- informed them that he'd been "consuming alcohol," they tasered him, resulting in serious injuries, which the police tried to hide by giving him "a cup of pink substance" for treatment when he arrived at the station.  On appeal, Dublin presents the following assignments of error:

[1.] Is review of the defendant's challenging that Mr. Dublin was treated  [**3] or not treated on 11-11-04 by medic 27 and jail nurse in Franklin County.

[2.] Is the Defendant's claiming or challenging the fact 11-11-04 of being treated and said to Be nothing wrong which 10-15-08 reflects other which defendant's facts state plaintiff Claims were barred by the statute of limitations. [Sic passim.]

Wonder what was in that "pink substance."


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