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Case Update

Nothing out of Columbus this past week, although I'll have some further reflections on State v. Hodge, especially with regard to how resentencing might be impacted, later in the week.  The US Supreme Court functionally begins its term next Monday with the "long conference," in which it considers the petitions for certiorari that have built up over the summer, and decides which ones to grant.  Oral arguments start a week after that, and I noted something interesting about them.  Prior to her appointment, as most people know, incoming Justice Elena Kagan was the Solicitor General, who has a key role with the Court; not only does the SG argue cases in which the United States is a party, the Court will often seek her opinion on what the government's position is on certain other cases.  Kagan has decided to recuse herself from any case in which the SG's office did that during her tenure, and as a result, in eight of the twelve cases scheduled for argument in October, only eight justices will be deciding them.  That includes the big Crawford case, Michigan v. Bryant, which I'll discuss in the next two weeks. 

I may also take a look at some of the upcoming arguments in the Ohio Supreme Court in the next few weeks, assuming I get around to reading what they're actually about.  For now, let's get to the courts of appeals, where we learn that illegally downloading all those Barry Manilow songs might get you in trouble with the Feds, and with anyone who has any taste in music, but it won't get you in trouble with the local gendarmes...

Criminal.  Prosecution for record pirating under RC 1333.52 is pre-empted by Federal Copyright Act, 1st District holds... 6th District holds that fact that prosecutor (and others) were present when child victim of sex abuse was interviewed does not demonstrate "extraordinary circumstances" necessary to justify defense subpoena of prosecutor for trial... Failure to give jury instruction on accident can't rise to level of plain error because it simply negates element of intent, if jury follows instructions on that issue it would return verdict for defendant anyway, says 8th District... 1st District affirms conviction of misdemeanor child endangering conviction in parental discipline case, says defendant's proposed jury instruction required proof of serious physical harm, only appropriate in felony case... Conviction of aggravated robbery with deadly weapon and acquittal of firearm specification on same charge not inconsistent verdict requiring reversal, 8th District holds... Felonious assault and murder not allied offenses, separate animus existed where defendant shot victim, ran downstairs, came back up, and fired fatal shot, says 1st District... 9th District reverses conviction because of improper admission of 404(B) evidence, says proof that defendant made comment about sexual desire for wife's adult stepdaughter shouldn't have been introduced in trial for raping wife's minor stepdaughter...

Civil.  Trial court erred in allowing oral reply to counterclaim on day of trial without showing of excusable neglect, says 6th District... 8th District holds that attorney fees are allowed to prevailing party in action for breach of trust... 9th District affirms denial of summary judgment to city for accident caused by police officer going to call of domestic fight, says fact that officer was not dispatched, but decided on his own to respond, creates genuine dispute of fact as to whether he was responding to emergency and thus entitled to immunity... 8th District reverses dismissal with prejudice of work comp appeal for failure of employee's attorney to appear at case management conference, notice did not indicate dismissal would be with prejudice...

A victory for common sense.  Reason #78 why I don't do administrative law.  Operators of a gas station wanted to appeal from an order suspending their food license, so they filed the notice of appeal with the court, and faxed a copy to the agency.  Oops.  For whatever reason, the law requires that the original be given to the agency, and the copy to the court, and the Supreme Court has held that this requires strict compliance, so the court dismisses the complaint.  Hold on, though!  Perhaps recognizing the stupidity of this, the legislature amended the law, so that filing the original with either is sufficient.  But wait!  The amendment wasn't passed until after all this had happened, and didn't even take effect until last Friday.  In Ostrander v. Grossman, the 6th District takes a look at all this and decides that the amendment, because it's procedural, applies retroactively to events that occurred before it had passed and even before it had taken effect, and so reinstitutes the appeal.  Sloppy, but the right result.

On the other hand.  Reason #129 why I don't do divorce work:  Shaw v. Shaw deals with the trench warfare that any custody battle inevitably degenerates into, as demonstrated by this line from the opinion:  "Appellant also argues that the trial court erred in finding the testimony of appellee's sister credible that appellant allowed her children to put rocks in their mouth."

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