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… (keep reading…)

Drug Wars.  In just five weeks, we’ll find out if California becomes the first state to legalize recreational marijuana.  Some people aren’t going to be happy if they do:  as this article from The Hill (h/t to Sentencing Law & Policy) indicates, one of those people is Rep. Lamar Smith of Texas, who’s fuming because the Obama administration has scaled back enforcement of laws against medical marijuana dispensaries.  Smith has called for stronger enforcement of all drug laws, and opposed the revision of the sentencing guidelines which reduced the disparity between how crack and powder cocaine were treated. 

So why should anyone care about the rantings of a representative from Texas?  Because Smith is likely to be the chairman of the House Judiciary Committee if the GOP takes over Congress in the upcoming elections, which most analysts have concluded is about a 65% probability.

Going back to the California proposition battle, the political alignments are rather fascinating.  The California Beer & Beverage Distributors have come out against the proposition, as have police groups.  The economic interests of the former group are readily discernible.  The latter?  As noted by this article,

Police forces are entitled to keep property seized as part of drug raids and the revenue stream that comes from waging the drug war has become a significant source of support for local law enforcement. Federal and state funding of the drug war is also a significant supplement to local forces’ budgets.

On the flip side, the teachers and the Teamsters have come out in support of the proposition.  Why?  Because the Teamsters are trying to oganize pot growers, and the teachers want the additional revenue that could be raised by legalizing weed.

Lindsay Lohan Update.  No, this isn’t turning into an online version of People magazine.  (Especially since there already is an online version of People magazine.  And don’t make fun of People too much.  I was in court the other day, wasting my time — but I repeat myself — and grabbed a copy of InTouch, one of the many People competitors.  Apparently, InTouch’s key demographic is people with ADD:  lots of pictures, stories that run two paragraphs at most.)

Where was I?  Oh, yes, further evidence of my sub-par prognosticative skills:  barely two months ago, I recounted Lindsay’s most recent arrest and incarceration for alcohol and drug-related arrests, linked to a blog holding a contest to determine which of Lindsay’s three mug shots was the best, and calculated that, given the pace of Lindsay’s brushes with the law, the contest could be re-run “about eight months from now, this time giving contestants four options.”  Oh ye of little faith.  It took Ms. Lohan a mere quarter of that time to test positive and earn another stay in jail and, as Legal Blogwatch shows, another mugshot.

Thought provoking post of the day.   From Balkinization:

I have four points I want to make today against constitutional idolatry, which is my label for our misguided tendency to blindly worship the Constitution, giving it credit for all the things we love and honor about our country.

(1) The Framers’ constitution, to a large degree, represented values we should abhor or at least reject today.

(2) There are parts of the Constitution with which we are still stuck today even though we would never freely choose them and they are impossible to defend based on contemporary values.

(3) For the most part, the Constitution is irrelevant to the current political design of our nation.

(4) The rights protections we do enjoy today, the importance of which I do not minimize, are mostly a function of political and social mores, which have dramatically evolved over time and owe relatively little to courts using the Constitution to protect them.

Discuss.