Justin Kurtz was pissed.  T&J Towing had hauled his car away from his apartment complex, and so he created a Facebook page called “Kalamazoo Residents against T&J Towing.”  That landed him in court:  T&J, claiming that the site was hurting their business, filed a $750,000 defamation suit against Kurtz.

Scott Roberts was pissed, too.  He’d purchased a Pontiac engine block from Kauffman Racing Equipment, but concluded that it was defective, and vented his spleen by posting caustic criticisms of KRE  on various Internet websites.  That got him sued, too; KRE filed a complaint alleging defamation and intentional interference with contracts.

One big difference.  In Kurtz’s case, everything is local.  Roberts, though, is a resident of Virginia, and KRE’s suit was filed here in Ohio, where the company is located.  And yesterday in KRE v. Roberts, the Ohio Supreme Court decided by a 4-2 vote that Roberts will have to come up here to defend the lawsuit. (keep reading…)

There are still a number of important US Supreme Court decisions in the pipeline, and they’ll be coming out in the next couple of the weeks as the Court wraps up its term.  And the Ohio Supreme Court can always provide entertainment, as it did with its recent holding that a cop’s unaided estimation of speed was sufficient for conviction of speeding, a decision that’s already in the early stages of a legislative override. 

But today’s a slow day, so I thought I’d take a closer look at a couple of 8th District decisions from a few weeks back. (keep reading…)

Last year was the Big Year for 4th Amendment cases in the US Supreme Court.  This year is shaping up as the Big Year for the 5th Amendment.  While defendants went one for three last year, losing in Herring v. US and Arizona v. Johnson before staging an impressive come-from-behind win in Arizona v. Gant (cases discussed here), though, so far they’ve been shut out in the three cases handed down.  In Florida v. Powell  and Maryland v. Shatzer (both discussed here), the Court rejected a contention that a Florida police advisory to a suspect about his Miranda rights was defective, and that even if a suspect invokes his Miranda rights, police can resume questioning as long as they wait at least two weeks to do it. 

Those results weren’t surprising; only Stevens dissented in Powell, and Shatzer was unanimous.  The knives came out, though, in Tuesday’s decision in Berghuis v. Thompkins, the 5-member majority concluding that a defendant has to “clearly” invoke his Miranda rights, and that waiver of those rights could be inferred from the fact that he finally said something at the end of nearly three hours of police interrogation, and a spirited dissent from Sotomayor arguing that the Court went much farther than it needed to in whittling down Miranda’s protections. (keep reading…)

On the day of trial, your client gets cold feet:  he wants to take the deal the state’s offered him.  You talk to the prosecutor, the deal’s still available, and it offers a reasonable resolution of the matter, without necessitating the expenditure of scarce judicial resources, like, say, spending a week in trial.  Only one problem:  this particular judge has a rule that he won’t accept a plea on the day of trial.  You try to explain the situation, but he doesn’t relent, so off to trial you go.

Not anymore, after the 8th’s opinion last week in State v. Switzer.

(keep reading…)

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… (keep reading…)

Yet another reason I shouldn’t rush to get posts out early in the morning.  Of course there’s nothing wrong with the prospective application of the AWA.  Even assuming it’s punitive, there’s no more problem with the legislature prospectively imposing the additional sanction of registration and notification than there is with the legislature prospectively  increasing the penalty for rape from 10 years to 15 years.  D’oh!

There are some other questions raised by Bodyke, though.  What happens to charges of violating the notification or registration provisions to people who were reclassified under AWA, if the reclassifications are now invalid?  That’s a topic we’ll addess next week, by which time I’ll have hopefully sobered up.

First, it means that my prognosticative abilities are no better than your friendly neighborhood crack addict’s; I’d predicted two weeks ago that the Supreme Court wouldn’t tackle an issue like sex offender registration and notification in an election year.  Well, they did; in State v. Bodyke, by a 5-1 vote, the Ohio Supreme Court yesterday struck down the portion of the Adam Walsh Act allowing the attorney general to change the registrations of offenders convicted before the Act’s passage in 2007.  The way that it arrived at that decision, and some parts of the opinion, proves most interesting. (keep reading…)

… of having to work for a living is that sometimes you don’t have the time to do stuff like this.  Which I haven’t this week; I’ve got a Monster Death Cage Match hearing today, and I’ve had to spend so much time on it that I haven’t had any to peruse the big US Supreme Court decision that came down on Monday regarding Miranda rights, or to follow up on a couple of 8th District decisions that I didn’t get to on Wednesday.  So no post today, but after the hearing I’ll do my best to crawl back to my office and churn out a couple for tomorrow.  See you then.

There’s ineffective assistance of counsel, and then there’s really ineffective assistance of counsel.  My Cousin Vinnie was a great movie, but life doesn’t always imitate art, as Charles Dobson learned to his sorrow. (keep reading…)

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. Rouse.  But 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… (keep reading…)