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Case Update

The US Supreme Court comes down with its first real decision of the year in Abbott v. US(A week earlier, in Wilson v. Corcoran, the Court had issued a brief per curiam opinion reminding federal courts that habeas relief was available only for violations of federal law, not for improper state court interpretations of state law.)  Abbott was convicted of drug trafficking, and had a gun at the time of the crime, which earned him a 15-year minimum sentence as a felon in possession and a 5-year minimum under 18 USC 924(c)(1), which prohibits using or possessing a gun "in any crime of violence or drug trafficking crime."   The latter statute provides that the 5-year sentence has to run consecutively "except to the extent that a greater minimum sentence is otherwise provided by [924(c) itself] or by any other provision of law."   Every court has narrowly construed "any other provision of law" to mean one that "embodies all the elements of a 924(c) offense," and the Supreme Court unanimously agrees.  The Court acknowledged that "Abbott and Gould [the defendant in a companion case] project a rational, less harsh, mode of sentencing.  But we do not think it was the mode Congress ordered."  Well, duh.  Why would anyone think that Congress would prefer a "rational, less harsh mode of sentencing"?

The bright spot here is that Doc Berman, over on Sentencing Law & Policy, sifts through Abbott's entrails and argues there's some support in it for applying the new Fair Sentencing Act's provisions for crack sentencing to pending cases.

Down in Columbus, nothing other than announcements, including the dismissal of several cases for missed filing deadlines, so let's see what happened in the courts of appeals...

Civil.  Assertion of affirmative defenses in answer is sufficient to show "meritorious defense" for purposes of motion to vacate under CivR 60(B), says 2nd District... Defendant hires plaintiff psychologist to help defendant's daughter in various criminal and child custody matters, doesn't pay, trial court grants defendant summary judgment on grounds that Statute of Frauds requires agreement to pay debt of another to be in writing; 6th District reverses, says there's a factual dispute as to whether defendant also derived benefit from agreement... 8th District says that plaintiff can't maintain false arrest claim against store where employees requested assistance from police, so long as employees didn't request police to arrest plaintiff... 6th District says trial court didn't err in holding that plaintiff was licensee and rejecting stipulation that she was business invitee; court is free to reject stipulation which contains incorrect conclusion of law, as opposed to factual stipulations...

Criminal.  6th District says that requirement of consistency in sentencing does not require "case comparisons," only issue is "whether the sentence is supported by the record"... Where defendant tries some charges to jury and some to judge, there must be signed and journalized jury waiver as to latter, says 8th District... 12th District grants reconsideration, holds that defendant not required to renew Rule 29 motion at close of all the evidence when case is tried to the bench instead of a jury in order to preserve issue of sufficiency of evidence; still finds evidence sufficient, though... Failure to advise defendant of maximum penalty or fact that imprisonment was mandatory voided guilty plea, 6th District holds... Police stop car for tinted windows, test windows, find there's no violation, ask defendant for driver's license anyway; 2nd District affirms grant of motion to suppress, says that traffic stop should have ended when officer's determined there was no tint violation... Trial court should have granted Rule 29 motion on one count of gross sexual imposition, since it was not the act described for that count under bill of particulars, says 6th District... Allied Offense Watch:  1st District says that involuntary manslaughter and aggravated robbery not allied offenses, 8th District holds same with regard to rape and felonious assault, ditto for 6th District re rape and sexual battery...

Here's a nice case to have.  In State v. Bates, on the afternoon before trial the prosecutor provided defense counsel with two CD's containing the defendant's jailhouse conversations with the victim.  The defense asked for a continuance of the trial; the court instead gave defendant a 2 1/2 hour recess to review the tapes.  Despite the fact that defendant had never requested discovery, the state had provided some discovery.  The 2nd District reverses Bates' conviction, holding that failure to provide the CD's was a discovery violation, and that the trial court abused its discretion in granting only a brief recess instead of a continuance. 

I think they covered this in law school.  Defendant was acquitted of aggravated murder and murder, but convicted of aggravated vehicular homicide and involuntary manslaughter.  The case was reversed because the court of appeals and supreme court agreed that a deaf juror should have been excused for cause.  (Discussion of Supreme Court decision here.)  Upon remand, the state seeks to reinstate all the charges -- including the aggravated murder and murder -- on the grounds that the trial court's error precluded the state "from a full and fair opportunity to present its case against [the defendant]."  In State v. Speer, the 6th District, in language much more charitable than I would have chosen, reminds the prosecution that something called the double jeopardy clause prohibits the state from trying to convict a defendant on the same charges for which he'd been previously acquitted.

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