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Case Update

I discussed the Supreme Court argument in Michigan v. Bryant last week, but most of the attention was focused on Snyder v. Phelps, the case involving Fred Phelps, erstwhile pastor of the Westboro Baptist Church in Topeka, Kansas, whose handful of nutcase followers traipse around the country protesting military funerals, on the theory that the deaths of American soldiers are God's punishment for America's tolerance of homosexuality.  The plaintiff, the father of a dead soldier whose funeral was the subject of one of Phelps' protests, sued and won $10.9 million, only to have that reversed by the court of appeals.  The issue before the Court last week was whether speech should lose its constitutional protection when it is "outrageous" or intentionally inflicts "severe emotional distress."  Well, on a scale of 1 to 10 for loathsome, Phelps gets a 12, but so do Neo-Nazis and some other people, and they've got First Amendment rights, too.

Judges' First Amendment rights are more limited, at least when they're on the bench.  Last week, the Ohio Supreme Court handed down its decision in Disciplinary Counsel v. Gaul, involving a Cuyahoga County Common Pleas judge who declared a mistrial and recused himself after publicly accusing a defendant of intimidating a witness.  (Background on case here; discussion of oral argument here.)  The court affirms the finding of misconduct, but knocks the penalty down from a one-year month stayed suspension to six months, all stayed. 

Nothing else of note in Washington or Columbus, so let's head over to the courts of appeals...

Criminal.  Lawyer's failure to file affidavit of indigency may be ineffective assistance of counsel if defendant can show court would not have imposed mandatory fine in drug case if affidavit had been filed, says 2nd District... If judge sentences defendant to community control sanctions, she need not advise defendant of post-release controls, says 8th District; can advise him of that if he later violates and she imposes prison sentence... 3rd District says that trial judge's participation in plea bargaining process resulted in coerced plea where judge, among other things, told defendant evidence against him was "overwhelming" and that rejection of plea deal would be "stupid"... Failure of verdict form for carrying concealed weapon to state that gun was loaded or ammunition was ready at hand reduces offense to 1st degree misdemeanor, says 9th District... Defendant's post-conviction claim of ineffective assistance based on failure to file motion to suppress rejected, says 1st District, because guilty plea waives any such claims... Ya think?  Trial court erred in allowing State to amend indictment during jury deliberations to change date of offense, in response to jury question, says 12th District... Alford plea requires "strong evidence of guilt" in order to show that defendant made rational decision to plead guilty despite protestation of innocence, says 3rd District; opinion contains excellent discussion of such pleas...

Civil.  Today's civil practice tip:  although objections to a magistrate's decision have to be filed within fourteen days of the decision, the transcript of the hearing doesn't have to be filed until thirty days after that;  2nd District holds that trial court abused its discretion in overruling objections day after they were filed because objecting party hadn't filed transcript... 3rd District says trial court correctly rejected shared parenting plan, finding that parents couldn't make decisions jointly... Naming and service of actual party as substitution for "John Doe" defendant must be done within one year of the date original complaint is filed, says 12th District... Change of circumstances sufficient to modify custody shown by mother's interfering with father's parenting time and moving out of state without notifying father, says 3rd District...

Yep, that'll do it.  In State v. Burroughs, the 3rd District upholds the granting of a civil protection order, stating that the defendant's threat to his live-in girlfriend that "the only way that you are going to leave this house and going to leave me is going to be in a body bag" was sufficient to place girlfriend in fear of physical harm.

Time off for good behavior.  We'll have the analysis of the 8th District cases tomorrow, some ruminations on Crawford on Wednesday, a look at some issues emerging under the new criminal discovery rules on Thursday, and the customary roundup of what's happening in the legal blogosphere on Friday.  After that, we'll close up shop here for two weeks, because I'll be spending them lying on a beach in Maui, during which time I will not write, read, talk, or think about the law.  The next Case Update will be on November 1.

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