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Case Update

After Jason Pepper's 2003 plea in Federal court to conspiracy to distribute amphetamines, the judge gave him only a 24-month prison sentence, as opposed to the 97-121 months recommended by the sentencing guidelines, because of his cooperation with the authorities and his lack of a prior criminal record.  The 8th Circuit reversed that, but in the meantime, Pepper completed his sentence, married, got a job, got straight A's in college, and stayed drug free, so the trial judge again gave him 24 months, this time citing his post-sentence rehabilitation.  Again, the 8th Circuit reversed, telling the judge not to consider that.  On remand, a different judge gave him a 65-month sentence, and a week from today, the US Supreme Court will hear argument on whether post-sentence rehabilitation is a proper factor to consider in sentencing.

I haven't read the briefs (but if you want to, here they are), so I don't know what the law is on this, but I know what it should be.  I don't like saying that, because it smacks of results-oriented decision-making, and I don't normally like it when it's obvious that a court decided the outcome it wanted to reach, then formulated the reasoning -- such as it was -- to arrive at that outcome.  But I've always believed that the overriding purpose of law is to achieve a fair result, and whatever the arguments on this, Pepper has the better one.  We'll see if five people who matter a hell of a lot more to Jason Pepper than I do agree.

Nothing else in D.C., and nothing of note in Columbus, so let's head over to the courts of appeals, where the 2nd District had a particularly prodigious week...

Criminal.  2nd District affirms murder conviction where victim's body never found; evidence establishing that it was unlikely that victim disappeared voluntarily is sufficient corroborating evidence to satisfy corpus delicti rule... Defendant shoots victim in elbow, then in head; 9th District holds that this is sufficiently separate animus to support convictions for both felonious assault and attempted murder... 8th District holds that defendant can appeal agreed restitution order if it's "contrary to law," says record here doesn't indicate that amount was related to actual loss, vacates for hearing on amount... Guilty plea waives claim that trial court should have dismissed specifications of prior convictions because of lack of counsel, 2nd District says... Defendant charged with murder, that case is combined with another for three capital murders, defendant ultimately convicted of all and sentenced to death on capital case; 1st District holds that appeal from non-capital murder must be heard by Supreme Court, not court of appeals, along with appeal from capital case... Where defendant makes timely demand for jury trial in misdemeanor case, oral agreement to waive jury not sufficient; waiver of jury must be in writing, says 2nd District...

Civil.  Trial court cannot grant summary judgment on ground that was not specified in motion of party seeking judgment, 9th District holds... Perjury in prior case does not give rise to cause of action in a subsequent civil case for damages resulting from the false testimony, 2nd District rule... 10th District holds that snow and ice which accumulated on speed bump in parking lot were natural accumulations, barring liability for slip and fall... 12th District notes that new CivR 10(D)(2) now requires malpractice plaintiffs to include affidavit of merit with complaint, or to include in complaint request for extension for obtaining same; otherwise complaint is subject to dismissal, albeit not on the merits... 3rd District says that finding of voluntary unemployment or underemployment is necessary for imputation of income in child support proceeding...

Gosh, hard to see how that would lead to problems.  In Albrecht v. Marinas Int'l., the defendant marina agreed to winterize the plaintiff's boat, told him it would cost $2,200, and sent him a form so he could check off the items he wanted them to perform, with a separate cost for each.  He called them when he realized that the separate items came to more than $2,200, but the employee told him not to worry and just send back the form.  He subsequently got a bill for more than the $2,200, and when he called to complain, the Marina honored the agreed price.  And then this nugget from the opinion:

[The employee] testified that it is the practice of the Marina to send customers bills for the sum total of the cost of all the services selected, regardless of what price was previously discussed. She stated that only if customers called to question the bill would the Marina ensure that the bill reflected the prior agreement.

Does this pass the giggle test?  In State v. Conley, the defendant argues that the victim's dying declarations to his father should have been barred by the trial court on public policy grounds, since the declarations were made while the victim was being treated in a Level One trauma center, and federal and state policies prohibit visitors in such trauma centers. 

Conley also provides more Adventures with Crawford v. Washington.  The defendant argued that the dying declarations to the father and four other family members should have been barred as testimonial statements under Crawford.  The 10th District rejects that argument, asserting that the US Supreme Court, in Giles v. California, held that statements admissible under hearsay exceptions which existed at the time of the framing of the Constitution, such as dying declarations, were exempt from Crawford.  That's arguable -- the portion of Giles on that is pure dicta -- but it's questionable whether the statements would be considered testimonial in any event, since they were made to family members, not law enforcement officials or their agents.  But buried in the opinion is the further note that an assistant coroner testified as to the autopsy results, because the coroner who performed the autopsy was no longer there.  While the Ohio Supreme Court did hold that autopsy reports were not testimonial because they were "business records," the vitality of that ruling is open to question since the US Supreme Court's subsequent decision in Melendez-Diaz v. Massachusetts, which held that laboratory reports and results of scientific tests are testimonial under Crawford.  Nobody in Conley raised the issue.

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