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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

The Supreme Court's 2009 term ends, with the big decision being McDonald v. City of Chicago, holding that the 2nd Amendment's individual right to bear arms pronounced two years ago in District of Columbia v. Heller also applies to the states.  I'll have a discussion on that on Thursday, and next week I'll have a recap of all the significant decisions of the term.

McDonald was a 5-4 decision, and so was Christian Legal Soc. v. Hastings College of Law, the only difference being that Kennedy sided with the conservatives in the former case and with the liberals in the latter.  The Christian Legal Society was turned down for a Registered Student Organization at Hastings because it wouldn't accept members who didn't subscribe to its "Statement of Faith," which prescribed, among things, that sexual activity should not occur outside of a marriage between a man and a woman.  RSO status would have conferred certain benefits upon the organization, such as eligibility for school funds, none of which, it seems likely, would have been used for Bacchanalian celebrations such as those pictured at right.  The College denied RSO status because the group violated the school's non-discrimination policy.  The Court relies on the "limited public forum" doctrine -- that a governmental entity, in regulating property it owns, may impose restrictions on speech so long as they are reasonable and viewpoint-neutral -- to uphold the school's decision.

Sears v. Upton presented a classic miscalculation on the part of defense counsel in a capital case.  The attorney strove to show that his client was the product of a middle-aged background, with family and friends testifying to what a loving, stable childhood he had, and how a death sentence would devastate the family.  The prosecutor turned the tables on this argument, telling the jury that the defendant was "privileged in every way, [and] has rejected every opportunity that was afforded him."  Turns out that it wasn't merely bad strategy, it was bad investigation:  the defendant had actually been abused as a child, suffered from learning disabilities and was behaviorally handicapped, which may have been due to significant brain abnormalities.  The state court found counsel's failure to unearth this constitutionally inadequate, but determined that Upton failed to establish the prejudice prong of an ineffective assistance of counsel claim.  In a per curiam opinion, the Court vacates this and sends it back for another look; Scalia dissents, concluding that, considering the heinous circumstances of the offense, "it is impossible to say that substituting the 'deprived-childhood-cum-brain-damage' defense for the 'good-middle-class-kid-who-made-a-mistake' defense would probably have produced a different verdict." 

Nothing out of Columbus, so lets' go to the courts of appeals...

Criminal.  2nd District holds that victim's statement to police officer ten minutes after assault was "excited utterance"; not even a mention of Crawford... Police take store videotape of robbery, return it to victim, who erases it; 9th District holds that victim's erasure of tape doesn't bar oral testimony as to tape's contents, destruction wasn't result of bad faith on part of police, tape wasn't "best evidence" of its contents... 11th District agrees that trial court didn't err in not granting severance where co-defendant failed to show for trial; defendant actually benefited from his absence, because he could blame him for everything... Since defendant had filed only a general request for discovery, trial court didn't err in declining to shift burden of proof to State to show that videotape that was overwritten would not have been materially exculpatory, says 10th District... Fact that written plea form indicated defendant had right to subpoena witnesses doesn't save plea when trial judge stated in plea colloquy only that defendant had right to call witnesses, says 6th District... Firing of three bullets in quick succession required merger of attempted murder and felonious assault charges, says 1st District, finding no separate animus...

Civil.  Fact that landlord sold apartment building to another party five days before plaintiff injured herself on defective oven door does not relieve landlord from liability, 2nd District rules... Trial court dismisses fraudulent conveyance claim because transferor had died, and no timely claim was made against transferor's estate; 10 District reverses, holds that transferor isn't necessary party to fraudulent conveyance action... 9th District reverses award of attorney fees against plaintiff in medical malpractice action under RC 2323.42, says that purpose of statute is to discourage meritless claims, "not every claim that may be difficult to prove or may not ultimately prevail"...  Even though no objection to bench trial, parties had made demand for jury trial, and waiver wouldn't be presumed from silent record, says 10th District... 11th District says insurance company waived one-year limitation period for suit by insured by its conduct... 10th District holds that police officer's belligerent attitude, arrest of plaintiff without probable cause, and generally acting like an asshat sufficient to raise claim of malice so as to defeat summary judgment on issue of sovereign immunity...

Smoke 'em if you got 'em.  In In re D.H., a custody case, the police had raided the parent's home because of suspicion of drug activity; the only "activity" they turned up was a bag containing 2.5 grams of marijuana.  The magistrate nonetheless found the children dependent and granted Children's Services temporary custody.  The 9th District reverses, stressing that while "we do not condone a parent's use or possession of marijuana," the absence of any evidence that the parents smoked marijuana in the presence of the children, or that their use of it had any impact on the children, precluded a finding of dependency.


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