August 2010 Archives
Bad news for Sandra Griffin. A couple of weeks ago I wrote that her conviction for capital murder had been set aside because, contrary to State v. Baker, there were separate journal entries for the conviction and the sentence, and Baker says they have to be one document. In State v. Ketterer, the Ohio Supreme Court holds that Baker's one-document rule doesn't apply to capital cases, since RC 2929.03(F) requires the trial court to issue a separate sentencing opinion, in addition to the judgment of conviction. Ketterer does get a new sentencing hearing, the only purpose of which will be to properly impose post-release controls. I'm not the only one to note the pointlessness of sending people back for resentencing hearings for that purpose, but it's beyond pointless in Ketterer's case: the three-judge panel, to whom he'd pled guilty, had sentenced him to death, so I'd guess that PRC is somewhere in the middle of page 12 on his list of worries. And if you read the preceding sentence and said, "why did he plead guilty if the death penalty was still on the table?", you're like me, although this story might indicate there was no way it wasn't going to turn out like this.
Lot's of disciplinary cases this week, which mostly prove that your mother was right when she told you not to lie. And paying more attention in math class might have helped, too: that way, you wouldn't submit assigned counsel fee bills showing you'd worked 3,431 hours in a single year.
On to the courts of appeals...
The big news -- for anybody who reads this blog regularly, anyway -- is that the Ohio Supreme Court overruled State v. Colon. I'm going to tackle that today. It's the next post down. The Case Update and What's Up in the 8th will be on Tuesday and Wednesday, respectively, and on Thursday we'll take a look at some recent decisions on the police using GPS devices to track vehicles.
Two years ago, in State v. Colon, the Ohio Supreme Court held that the failure of an indictment to allege the appropriate mens rea was structural error, requiring reversal, even though the defendant never raised the issue at trial. After a tizzy fit by prosecutors throughout the state, the court in State v. Colon II "clarified" Colon I three months later, holding that it was prospective only, and was applicable only when the omission led to "multiple errors" throughout trial, namely, that everybody treated the offense as if it were one of strict liability.
To say that the twin decisions had a substantial impact is to grossly understate the situation: panicked prosecutors tried to figure out how to phrase their indictments, and puzzled appellate judges tried to figure out if they'd done so correctly. In the ten years preceding Colon, there were only 19 Ohio Supreme Court and appellate decisions in Ohio in which the words "mens rea" and "indictment" appeared in the same sentence. In the two years since, there have been 326 such decisions.
So on Friday the Supreme Court said the hell with it, and in State v. Horner overruled Colon. Here's what you need to know.
I had four criminal pretrials and a hearing yesterday. That's not my normal workload; on Wednesday I had nothing in court, which allowed me to get a brief done. That's how I like to work things: if I have to go over to the court, I'd just as soon waste my time on five cases as on one.
Which is what I pretty much what I did. Three pretrials got continued to another date, by which time I'll have discovery, and maybe we can work something out, or not. The hearing, on a motion to suppress, was obviated by the State's willingness to offer me a misdemeanor. This is how bad the search was: in front of one of the most prosecution-friendly judges on the bench, and in the face of the insistence by the police officers involved that the defendant plead to a felony, they offered me a misdemeanor.
But I did get one case resolved: I got another misdemeanor plea on a drug trafficking case. Twenty bucks worth of marijuana. That leaves me with two other cases involving a $20 dollar sale of marijuana.
One thing my clients can be thankful for: they're still alive.
Trevon Cole wasn't so lucky.
The Supreme Court has accepted 38 cases so far for next term, about half of the usual number of cases it will decide. Some of those won't make the cut. Last year, for example, much of the pre-term buzz was centered on Briscoe v. Virginia, which was to further explore the ramifications of the Court's decision at the end of the 2008 term in Melendez-Diaz v. Massachusetts. (Buzz discussed here.) The upshot? After oral argument, the Court dismissed the case as improvidently granted.
With that caveat, let's take a look at what's scheduled.
... on allied offenses, sentencing, and the castle doctrine...
The 8th District hands down about a dozen criminal decisions a week, and sometimes there are several which present interesting issues. And sometimes there aren't; they just rehash well-settled areas of law. Even when that happens, though, there's something to discuss, which is what you pay me the big bucks to do, so here goes.
Here's an interesting twist to my post last week about standards of review: what about a writ of habeas corpus to an appeals court challenging a trial court's setting of bond? That arose last week in Ahmad v. Plummer, where Ahmad had filed a habeas corpus petition with the 1st District arguing that his bond was excessive. That court had said that although it might have given a lower bond, the trial court didn't abuse its discretion in setting it at $3 million.
Wait a minute, said Ahmad in his appeal to the Supreme Court: how can a court use an appellate standard of review, and an extremely deferential one at that, in an original action? Turns out that habeas is a hybrid action: the appellate court considers the matter de novo, but some weight has to be given to the trial court's action. And since Ahmad "is recorded on multiple audio recordings making arrangements to hire a hit-man to kill his ex-wife," he'll be staying right where he is for now, unless he hits the lottery.
The only other news out of Columbus was the denial of a motion to reconsider or clarify in State v. Bodyke (discussed most recently here). Justices Cupp and O'Donnell dissented, arguing that the court should at least clarify that Bodyke doesn't apply "to cases in which there is no prior court order classifying the defendant into a sex-offender category that existed under Megan's Law." That's a logical position: Bodyke held that reclassification was a violation of separation of powers because it involved the executive branch changing a judicial order, but if there's no judicial order to begin with, there's no separation of powers problem. The other five justices might have felt that this was so logical a position that clarification wasn't needed.
In the courts of appeals...
Bullshit lawsuit of the week. You go to retrieve your father's car, which is in a parking garage. When you get in, the car blows up, causing you serious injuries. Turns out it blew up because your half-brother planted a pipe bomb in it, intending to kill your father so he could inherit about $300,000. You
- Check Craigslist for "family therapists," because it looks like there's some work to be done here.
- Figure, "Well, that's $300,000 more for me."
- Get a lawyer and sue your half-brother for your injuries.
The answer for Preston Scott was "none of the above": Not precisely, anyway; he got a lawyer and sued his half-brother and the garage, obviously figuring that the garage was the deep pocket here, since the half-brother hadn't gotten the aforementioned $300,000. In Sigmund v. Starwood Urban Retail, the DC Circuit affirms summary judgment for the garage, deciding that the half-brother's criminal act wasn't sufficiently foreseeable to impose liability:
Solon, the ancient Athenian lawgiver, made no law against patricide because he thought it impossible that anyone could commit so unnatural a crime. Two and a half millennia later, Freud famously claimed the opposite -- that every son harbors murderous impulses toward his father. In this case, we side with the lawyer not the psychoanalyst.
Time for some girly pictures. Without the girl, unfortunately. I've got a subscription to the Victoria's Secret catalogue -- actually, my neighbor does, but he hasn't gotten it in a while -- and apparently they've developed a "Delicious" product line, featuring tank tops (like the one featured at right), skin fragrance, lip gloss, and self-tanning cream, promoted by the Delicious Girl <your joke here>, Miranda Kerr. (For those of you who find your appetite for photos of beautiful women unsated by this blog -- go figure -- you can find Ms. Kerr's picture here.
Well, if Victoria's Secret spent as much on lawyers as they do on models, they'd know that Fortune Dynamic, Inc., was the "owner of the incontestable trademark DELICIOUS for footwear." Fortune sued, and although Victoria's Secret won on summary judgment, that was reversed the other day by the 9th Circuit. The opinion wanders through various areas of anti-trust law, tossing out terms such as "post-purchase confusion," supporting the latter point, whatever its significance might be, by mentioning that several celebrities, including Britney Spears, have been espied wearing the tank top. If you've ever entertained any fantasies about Ms. Spears, be forewarned that the above link takes indeed takes you to a picture of her adorned in a Delicious tank top, but while in the process of leaving her latest rehab stint; the photo does nothing beside prove conclusively that there is such a thing as bad publicity.
While we're on the subject of footwear, a new, and probably one-time, feature at The Briefcase: the Fashion Tip. Shoes are a big thing for women: I don't know any woman who has fewer than twenty-five of them. Well, ladies, you're wasting time and money. I am unabashedly heterosexual, my first proctology examination convincing me beyond the shadow of a doubt that to the extent sexual orientation is a choice, I made the correct one. I have had any number of discussions about the fair sex with other unabashedly heterosexual males, and I have yet to hear a single one of them say, "Wow, did you see the shoes on that broad?"
See you on Monday.
There are several appellate courts -- the 6th Circuit and Ohio's 9th District, among them -- which require you, for each assignment of error in your brief, to set forth the applicable standard of review the court is to employ. That was a good idea, it dawned on me in the midst of an oral argument a month ago in the court of appeals here, when one of the judges asked me what the standard of review should be, and after a moment, I replied, "You know, I have no friggin' idea."
Well, I said that on the inside, anyway.
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