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Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Case Update

The big oral argument this past week in DC was AT&T v. Concepcion, which involves the question of whether a California court ruling that a provision in AT&T's cell phone contract was unconscionable because it barred class actions violated Federal arbitration law.  I'm somewhat torn about this; on the one hand, class actions are among the most abused forms of litigation.  On the other, businesses have inserted arbitration clauses into consumer and employment contracts with increasing frequency -- as this Hooters waitress found out -- and such clauses give them inordinate ability to avoid the consequences of their misdeeds:  you're much more likely to get a lawsuit if you steal $3,000,000 from one person than if you steal $10 from 300,000, at least if the 300,000 have to file separate lawsuits.

Down in Columbus, the talk was political, not legal.  In the election for Chief Justice, Maureen O'Connor trounced Eric Brown, whom Governor Strickland had appointed to the position after Tom Moyer's death this past summer.  That leaves O'Connor's seat vacant, and Strickland, despite his lame-duck status -- he was another victim of the Republican onslaught two weeks ago -- could appoint somebody to that seat.  The thinking is that he might want to fill it with somebody who has a better chance of retaining it than Brown, who lost by a 2-1 margin.  Like soon-to-be former Attorney General Richard Cordray, who performed admirably by losing by less than 2% in his race for re-election.  (Which is sort of like being last man standing at the Alamo.)  Another thought, though, is why bother:  Democrats last won a race for Supreme Court justice in 2000, and in the ten elections since then, only once has a Republican candidate failed to win by a margin of 10% or more, the customary definition of a landslide.

On to the courts of appeals...

Criminal.  1st District holds that involuntary manslaughter and aggravated robbery are not allied offenses, notes that subsequent Ohio Supreme Court decisions have not overruled State v. Rance "or indicated that the conclusion it had reached was incorrect"... Trial court erred in not giving self-defense instruction, says 3rd District; credibility not to be considered in deciding whether instruction is warranted, and evidence is to be viewed in light most favorable to defedant... Not advising defendant that sentence for failure to comply with order of police officer had to be served consecutively to any other sentence renders guilty plea invalid, says 8th District... Mere proximity of passenger to drugs in seat pocket of car not sufficient to establish constructive possession, say 1st District... 8th District holds that common hallway in apartment building is portion of "occupied structure" sufficient to uphold burglary conviction... Child victim's being upset after father's departure from house sufficient to warrant admission of statements by her of molestation by father under excited utterance exception to hearsay rule, says 3rd District... 8th District reminds us that a plea of guilty waives any error in the trial court's ruling on a motion to suppress...

Civil.  Plaintiff's statement that prospective employer told her she'd gotten bad reference from former employer was hearsay, not sufficient to defeat summary judgment in employment retaliation case, says 9th District... Law that court cannot modify child support arrearages must be applied, even if payment would result in inequitable burden to father, says 8th District... 1st District affirms denial of class action certification for junk fax suit, says individual claims predominate over group claims...

All I needed to know.  I didn't get any further than the Procedural Posture in Lexis's Case Summary for the 10th District's decision in State ex rel. Dehler v. Collins, which reads

Relator inmate filed an action in mandamus seeking a writ of mandamus to compel various employees of the Ohio Department of Rehabilitation and Corrections (ODRC) to provide him records related to the purchase of peanut butter for the correctional institution. A magistrate recommended denial of the writ. The inmate filed objections.

One busy fella.  Speaking of the 10th District, last week in State v. Fugate they affirmed the defendant's conviction for a felony charge of receiving stolen property, and in State v. Fugate they affirmed the defendant's conviction for a misdemeanor charge of receiving stolen property.  Yes, it was the same defendant in both cases, and other than that, the two cases were completely unrelated to each other.


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