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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

Someday soon I will be able to write about Supreme Court decisions here.  That day is not today; the US Supreme Court's 2010 term officially starts next week.  The court has agreed to hear oral argument in 38 cases so far, and will probably hear a little over twice that many.  Last year, the Court decided 86 cases, out of about 8,000 or so that it was asked to hear.  Fifty years ago, the Court got about 2,000 to 3,000 cert petitions annually, and decided about 300 cases.  Up until the Civil War, the Supreme Court's jurisdiction was mandatory; it had to hear every case appealed to it.  Congress changed the rules shortly after that to give the Court more discretion over its docket.  By 2060, the Court will be in session for a week after Columbus Day, hear arguments in three cases, decide that it shouldn't have bother in one of them and dismiss it as improvidently granted, and issue 5-4 decision, with three concurrences and four dissents, in the other two.

Closer to home, other than a disciplinary case -- moral of the story:  don't borrow money from your client, especially if you don't pay it back, and don't make your daughters beneficiaries of a trust you write for a client -- there's nothing coming out of Columbus, either.  Well, there were a couple of tax cases, but if you ever come here and start reading a discussion of a tax case, call the police, because it means I've been kidnapped and somebody else has taken over this blog.

So, let's get to the courts of appeals...

Criminal.  1st District finds that kidnapping and aggravated robbery don't merge because of separate animus where defendant, at gunpoint, moved victims from parking lot into bank, and by ordering two of them into vault and ordering them to remain there... 8th District gives rare reversal for prosecutorial misconduct, based on improper questioning and improper closing argument... 2nd District affirms trial court ruling that forfeiture of car was disproportionate to conviction for attempted trafficking re sale of marijuana... Failure of police to properly administer field sobriety tests not basis for suppression since odor of alcohol, defendant's slurred speech, and other indicia of intoxication gave police probable cause to arrest for OVI even without tests, says 1st District... 10th District says that child endangering (violating duty of care) is not allied offense with child endangering (physical harm)... 9th District rejects defendant's claim in weapons disability case arising from shooting in defendant's house that jury should have been instructed that 2nd Amendment gave defendant had an inherent right to use weapon in self-defense in his home...

Civil.  Lengthy discussion of right to discover medical records in personal injury case in this 2nd District decision, upholds trial court order compelling plaintiff to sign medical authorizations for all treatment within ten-year period... 10th District says that claim that statute of limitations was tolled because of defendant's absence from state must be alleged in the complaint... 8th District affirms denial of summary judgment, rejects sovereign immunity claim where bus driver left kindergarten student on bus...

Good news, bad news joke of the week.  In State v. Lollis, the defendant argues that the evidence was insufficient to sustain his conviction for tampering with evidence.  The 9th District agrees:  the only evidence was the witness' testimony that defendant had the gun with him after the shooting, and that after the witness dropped him off, he never saw the gun again.  The key phrase in the preceding sentence is "after the shooting"; the defendant was convicted of murder and several other offenses, leaving him with "only" 27 more years to serve.

One other notable thing about the case.  Lollis had taken the stand, and used the normal tactic in attempting to deflect attention from his prior convictions:  he claimed that he had pled guilty to those offenses because he was guilty, leaving the inference that he was not guilty of this offense because he didn't plead guilty.  He argued that the prosecutor committed misconduct by asking him, regarding his prior convictions, that those weren't murder prosecutions, and Lollis wasn't looking at as much time, thereby leaving the alternative inference that Lollis' decision to plead guilty has much more to do with the consequences he might suffer than his actual guilty or innocence.  The court of appeals buys into this, stating that

If a defendant implies on direct examination that, if he had committed the offense, he would have pleaded guilty, the State may rebut the inference by demonstrating that he had another motivation for his plea, other than his "overriding compulsion to be truthful."


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