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Case Update

On the eve of the US Supreme Court's new term, the Ohio Supreme Court finally churns out a few opinions of note.  The state statutes and rules specifically prohibit an alternate juror from sitting in on deliberations.  On two previous occasions, the Supreme Court had rejected a defendant's claim that doing so required reversal.  On both of those occasions, though, the defendant had failed to object, and so the case was analyzed for plain error, which occurs with the frequency of Dick Cheney's tender moments.  But in State v. Downour, the defendant did object; this, the court holds, shifts the burden to the State to prove that the defendant was not prejudiced, and given the secrecy of jury deliberations, good luck with that. 

Another notable holding comes in Squire, Sanders & Dempsey v. Givaudan Flavors Corp.  Not getting paid in full is a common experience for attorneys, but I've found that it's usually not worth the trouble to chase clients for the money.  Then again, I've never been owed $1.8 million, which is the amount SS&D claimed Givaudan had stiffed them.  Givaudan defended by contending that SS&D had charged them excessive fees and had been incompetent.  The main issue here was Givaudan's assertion that all its dealings with SS&D were covered by attorney-client privilege; thus, for example, SS&D couldn't hire an expert to review its billings to Givaudan to determine if they were reasonable and proper.  The 8th District had ruled that the trial court was required to hold an in camera inspection of the disputed documents to determine whether they were privileged, but the Supreme Court reverses, deciding that the common law provides a "self-protection" exception to the privilege, despite the fact that the statute makes no mention of such an exception.  The case provides an extensive and interesting romp through attorney-client privilege and work-product doctrine.  On second thought, if it was "interesting" I'd probably give it more than the paragraph here.

On to the courts of appeals...

Criminal.  Puzzling decision from the 2nd District:  it holds that judge's ruling that child rape victim was comptent to testify was in nature of ruling on motion in limine, thus interlocutory in nature, and was not preserved by defendant's no contest plea... Bulk amount for Ecstasy is 10 unit doses or 30 grams; 8th District affirms conviction for over bulk where defendant had 22 pills, but only 7 grams, says State can use either... Felony murder and predicate offense of aggravated robbery are not allied offenses, says 2nd District... Ugly case out of the 6th District, holding that evidence of defendant's prior conviction of methamphetamine production was admissible to prove defendant's "motive, intent, or purpose" to commit same offense under 404(B)... But 6th District makes up for it by upholding grant of motion to suppress, says that where search warrant does not specify that vehicles can be searched, cops can't search car parked out on street... 9th District notes that police do not need reasonable suspicion of criminal activity to order defendant out of motor vehicle after traffic stop... 3rd District upholds seat belt law against claim that it is unconstitutional...

Civil.  2nd District affirms summary judgment in slip and fall case on ice and snow; trial court had held that plowing of snow did not create an unnatural accumulation, and even if it did, condition was open and obvious... 8th District says that Motor Vehicle Title law only relevant in disputes over ownership, not necessary for plaintiff to show certificate of title in suit for damages to vehicle... 3rd District reverses summary judgment in case where automatic doors closed on plaintiff, breaking her leg, saying condition was not open and obvious and res ipsa loquitur doctrine applied, because  "absent negligence, automatic doors did not ordinarily close on a person"...

Dodgeball.  State v. Ricks raises an intriguing issue.  Hearsay is admissible in a hearing to revoke community control sanctions, but are testimonial statements barred by Crawford v. Washington?  The 9th District ducks it, noting that the defense failed to object to the testimony, and that therefore the admission can be reviewed only as plain error, but Ricks didn't argue plain error, so "we need not address the issue."  It seems to me that if you're assigning as error something that wasn't objected to below, you're automatically claiming plain error.  It confirms the impression of the 9th as the pickiest appellate district in the state.  Then again, that sometimes works to a defendant's advantage.  It did in State v. Owens, where the court held that a plea was invalid because the trial judge told Owens that "by entering the plea of guilty you're giving up the right to a trial," without mentioning the word "jury." 

Oh, that's better.  In Easterling v. Croswell Bus Lines, the 2nd District affirms the grant of summary judgment denying the plaintiff's claim of wrongful discharge.  One of the reasons that Easterling, a bus driver, was terminated was the charge that, while driving the Miami University equestrian team, he had asked a female student and member of the team if she received "sexual stimulation" from riding horses.  When confronted about this, Easterling denied it, claiming instead that he'd asked the student if she received "sexual satisfaction" from riding horses.


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