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Case Update

One of the things I learned in the past two weeks is that, in a hospital, a nurse telling you that the doctor will be with you shortly means the exact same thing as a bailiff in courtroom telling you that the judge will be with you shortly.

The penultimate week in the Supreme Court's current term saw decisions in the "honest services" cases, the most significant of which was Skilling v. US.  Skilling, as CEO of Enron, had misrepresented the company's fiscal health before it collapsed, and was prosecuted for a variety of crimes, including "honest services" fraud.  (Earlier post here.)  While three justices would have tossed out the statute as unconstitutionally vague, the Court doesn't go that far, but unanimously holds that statute requires proof of some bribe or kickback.  That wasn't present in this case, so the Court vacates Skilling's conviction on that count and remands the case back for determination of whether the error is harmless in regard to the money fraud and securities fraud convictions. 

Actually, as much of the opinion in Skilling is devoted to the issue of whether the trial court should've granted a change of venue, given the huge publicity surrounding Enron's collapse.  The Court held that a change wasn't necessary, and those inquiries are too fact-intensive to lend themselves to recapitulation in a blog post, but if you've got a case on that issue, Skilling's a must-read. 

There were also a couple of 1st Amendment cases.  Doe v. Reed concerned a referendum to challenge a gay-rights law in Washington; the petition signers contended that the state's public records law, which would have allowed release of their names, infringed on their free speech rights.  The Court rejected that claim, but only as to the facial challenge to the public records act; remaining in the district court, and yet to be addressed, is the claim that release would be improper because it would subject the signers to "threats, harassment, and reprisals." 

In Holder v. Humanitarian Law Project, the Court upheld a law prohibiting providing any services to terrorist groups, in this case, a Kurdish insurgent group, and the Tamil Tigers, a group promoting an independent state for Tamils in Sri Lanka.  While the HLP's services were of a decidedly non-terrorist bent -- it provided training to the two groups in how to use international law to resolve disputes peacefully and how to effectively petition the United Nations and other international organizations -- the Court essentially deferred to the determinations by the executive and legislative branches that even this type of aid could further the terrorist aims of the organizations.

The big case out of Columbus was McFee v. Nursing Care MgmtNursing Care Management's policy was that an employee had to be employed for year before becoming eligible for any leave for any purpose.  McFee gave birth eight months after she was hired, and was terminated for violating the company's leave policy.  The 5th District had held that the company's failure to provide for maternity leave constituted sex discrimination, but the court reverses, holding that a company may maintain a uniform minimum length of service policy, and that Nursing Care's policy was "pregnancy blind."  I don't know in how many cases Justice Pfeifer has been the lone dissenter, but whatever that total is, McFee increased it by one.

In the courts of appeals...

Criminal.  1st District uses AppR 26(A) motion for reconsideration to reopen 2005 conviction and hold that attempted murder and felonious assault are allied offenses... 9th District holds that medical records of victim aren't testimonial, can be admitted as business records... Asking for and retaining drivers license to run record check converted consensual encounter into unlawful stop, says 10th District... 8th District reverses conviction of contractor for not using quality materials in installing driveway, holds that ordinance is not one of strict liability; language of opinion suggests that it won't find intent to impose strict liability unless ordinance expressly states it... "Financial hardship" sufficient basis to excuse juror for cause, 9th District rules... 10th District affirms grant of new trial, says that computational errors in vehicular manslaughter case was "irregularity in the proceedings"... Trial court erred in allowing defendant to begin representing himself in middle of drug trafficking trial, rules 5th District... Police made controlled buy of crack from defendant, stop and arrest him three months later; 2nd District says evidence seized in arrest should have been suppressed, validity of warrantless arrest required police to show exigent circumstances made it impractical to get warrant...

Civil.  In open and obvious case, 8th District says that "attendant circumstances" have to be something created by the premises owner... Entry denying protective order was not appealable, only entry ordering that privileged materials be turned over, says 9th District...

Never mind.  From a footnote in the 2nd District's decision in State v. Johnson:

In [State v. ] Tooson, we cited R.C. 2941.22 rather than R.C. 2941.11. Our analysis in Tooson makes clear, however, that we actually were quoting from and discussing R.C. 2941.11 rather than R.C. 2941.22, which had nothing to do with the issue in that case.


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