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Case Update

Nothing new in Columbus, except, buried in the announcements for November 1, one noting in State v. Cornwell that the court is making certain orders to facilitate its "timely consideration of any matters relating to the execution of appellant's sentence."  That's a somewhat euphemistic phrasing; what we're really talking about is the execution of the appellant, scheduled for November 16For those of you keeping score at home, in the past five years 229 people have been executed in the United States.  Ohio has killed 22 of them.  No other non-Southern state has executed more than four.

There was one decision I skipped over from the previous week, Doe v. Ronan, in which the court upheld a 2007 law making anyone who'd ever been convicted of a drug trafficking ineligible for any position with a school district.  The employee in that case had worked for the Cincinnati school board since 1997, until the background check mandated by the new law discovered his 1976 trafficking conviction.  One is tempted to suggest that the legislature could not have intended so absurd a result as to cause a person to lose his job -- a job, it might be noted, in which the employee had no contact with children -- because of something that happened 34 years earlier.  But of course, it did intend so absurd a result; a prior version of the law allowed a person to demonstrate that he was rehabilitated, but this version did not.  This is the result of the drug hysteria:  legislators don't give a damn about ruining people's lives for no reason, as long as they can't be accused of being "soft on crime."

Down in DC, no decisions, most of the talk centering on the argument in Schwarzenegger v. EMA, which tests the constitutionality of California's law prohibiting sales of violent video games to minors.  Hard to say which was the highlight of the argument:  the description of some of the games being offered (in one, you hit schoolgirls over the head with a shovel, and then decapitate them; in another, you pour gasoline over people, set them on fire, and then urinate on them) or Alito's quip that Scalia wanted to know "what James Madison thought of video games."  Oh, and if your fantasy football season has gone into the toilet -- getting Randy Moss with that third-round pick didn't turn out to be the steal you thought it was, did it? -- you might want to check out FantasySCOTUS, which, this article explains, is an online game to predict the outcome of Supreme Court cases.

On to the courts of appeals...

Criminal.  2nd District holds that judge at de novo resentencing to impose post-release controls lacked jurisdiction to reclassify defendant under Adam Walsh Act; that's up to attorney general... 9th District says that when defendant is sentenced on multiple offenses, only one period of post-release control need be imposed; 8th District has come to opposite conclusion... 8th District notes that you can't impose community control sanctions for a minor misdemeanor... 10th District holds that defendant committed kidnapping with separate animus from rape because his pressing against pregnant victim's stomach during rape caused victim to suffer increased risk of harm separate from rape... 8th District points out that under RC 5145.01, if a defendant is sentenced to consecutive terms of imprisonment, he's deemed to be serving one continuous term... Security guard detains shoplifter, cop arrives and asks for consent to search car, says he wants to check for stolen merchandise, 2nd District says that this doesn't constitute an interrogation such as to require Miranda warnings...

Civil.  Visiting judge who tried case erred in believing that he lacked ability to reconsider sitting judge's ruling on motion in limine, says 8th District... That's some babysitter:  12th District holds that trial court's determination that parties' child care expenses amounted to $8,865 per year was not supported by the evidence... 9th District says that parties waived right to seek arbitration by participating in pretrials and negotiations... 11th District says that juvenile court has jurisdiction over abuse case, even if venue would have been in another county; proper remedy was transfer, not dismissal...

Play nice.  In Decuzzi v. Westlake, the plaintiff propounds interrogatories to the defendant, the third of which states,

Please state the exact factual defense which will be affirmatively proved in the Defendants' case in chief at trial by specific reference to facts, exhibits, dates, witnesses, and transactions between the parties. Please state the factual basis for any affirmative defense.

The latter would have proved a daunting task, given that the defendant raised no fewer than twenty-seven affirmative defenses.  (No, I didn't know there were that many, either.)  The court notes that "after much heated debate, name-calling, and threats between counsel," the plaintiff filed a motion to compel, which the trial court granted.  It shouldn't have, said the appellate panel; although a 1999 case allows discovery of facts supporting affirmative defenses, the interrogatory here come too close to seeking work product information.  The court suggests that "the parties should make a good faith effort to complete discovery, rather than engage in the kind of name-calling undertaken to date," and sends them on their way.

Bullshit traffic stop of the week.™  In State v. Winston, the police make the traffic stop because they "witnessed Winston begin to turn without engaging his turn signal, and then engage the turn signal about halfway through the turn."  The statute requires that "a signal of intention to turn or move right or left shall be given continuously during not less than the last 100 feet traveled by the vehicle before turning."  The 2nd District rejects Winston's argument that the statute is unconstitutional "because some Dayton city streets may be under one-hundred feet in length and it will sometimes be impossible to comply with the ordinance."


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