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Case Update

An appellate court, especially a supreme court, has two basic functions:  to issue decisions which articulate and clarify the law that is to be applied by the lower courts, and to act in a supervisory role, smacking down the lower courts when they get out of line.  The latter happened last week in State v. Dean, where, despite "substantial evidence" of the defendant's guilt, the Supreme Court reversed his conviction and death sentence because of the trial judge's manifest bias.  The defense requested a hearing on the state's refusal to disclose the name of a witness, and the judge had upheld the prosecutor's position.  There's case law which holds that a judge who holds such a hearing shouldn't be the one to try the case, so the defense moved to disqualify him.  The judge took this badly, believing it an unethical attempt to force him off the case, and spent the remainder of the trial reminding the defense attorneys that he'd deal with their perfidy after the conclusion of the trial.  They found this intimidating to the point where they believed they couldn't represent their client fairly, and so did the Supreme Court.  The opinion's worth a read, although there aren't any real rules of law to be divined.  That's not the point, though; the point is that where the Supreme Court unanimously vacates a death sentence and grants a new trial, you know the trial judge screwed up something fierce.

Down in DC, the only decision seems as though it could serve as the basis for a Monty Python skit:  the court vacates a stay of execution in a death penalty case.  The basis for the stay?  The defendant had argued that the drugs to be used in his execution had been imported from a foreign source, and therefore might be unsafe.  Read that sentence again, and then tell me that irony is dead.

In my two-week hiatus, the courts of appeals handed down 288 decisions.  I've carefully read every one of them -- sure, I have -- and normally I'd go right to the highlights.  One of them, though, the 11th District's decision in State v. Jordan, deserves special mention.  Ever since the US Supreme Court ruled in Oregon v. Ice that the 6th Amendment doesn't prohibit judicial factfinding before the imposition of consecutive sentences, defendants have argued that the decision implicitly overrules the Ohio Supreme Court's decision to the contrary in State v. Foster.  The appellate courts have uniformly rejected this argument, holding that it's up to the Ohio Supreme Court to reconcile the two cases.  (The issue's pending before the court; discussion of the oral argument 6 weeks ago here.) 

In Jordan, though, the 11th notes that the Ohio legislature re-enacted the section requiring judicial fact-finding on April 9, 2009, some three months after Ice came down, that Ice makes the statute constitutional, regardless of what Foster says, and that therefore a court wishing to impose to impose consecutive sentences after that date must make the required findings.

Highlights from the rest of the cases...

Criminal.  8th District upholds admission of statements of murder victim stating that he and defendant had committed a burglary, under forfeiture by wrongdoing exception to hearsay rule... Ya think?  Ex parte collaboration between prosecutor and judge in preparing journal entry for death penalty case was violation of judicial canons and requires vacation of sentence, says 11th District... 6th District rejects claim that imprisoning 56-year-old defendant who had liver cancer requiring $4300-a-month treatment imposed an unnecessary burden on state resources, upholds maximum consecutive sentences of 11 years... Decision of whether to ask for disqualification of judge is tactical choice not subject to review on ineffective assistance of counsel claim, says 8th District... 11th District holds that 11-month time lapse in filing motion for delayed appeal renders motion untimely...

Civil.  8th District holds that provision of tort reform statute which requires bifucation of trial on compensatory and punitive damage issues is unconstitutional... 10th District reminds us that if you don't proffer what excluded testimony would have been, or it's not apparent from the questions, you've waived any error in its exclusion... 3rd District says that trial court erred in holding that imprisoned father's consent to adoption was unnecessary, should have recognized that incarceration was justifiable reason for failure to provide support or have more than minimal contact with child...

In the News.  Accused of possession of an item containing cocaine residue, Randolph Kinder figured he'd use a current-events defense, attempting to introduce a bevy of internet news articles,  showing that a vast majority of US currency in circulation -- about 90%, according to this report -- contains traces of cocaine.  This novel approach proves unavailing in State v. Kinder, the 6th District rejecting the argument for two reasons.  First, the articles are hearsay, and second, the item alleged to contain the residue was a crack pipe, not money.  Did somebody on the defense team not realize this?

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