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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

Only one decision out of DC, Los Angeles County v. Humphries, which dealt with municipal liability in 1983 actions.  You can't hold a city liable for a wayward police officer's acts in civil rights cases under respondeat superior; you have to show that the acts were the result of a city policy.  In Humphries, the Court extends that rule to cases where only declaratory and injunctive relief (and attorney fees) is sought.  And there's an interesting twist to Pepper v. US, the case I mentioned last week and which is scheduled for oral argument today, involving whether post-sentencing rehabilitation can be taken into account when a case is sent back for resentencing.  Turns out that the Justice Department changed its mind, and now supports Pepper's position.  Instead of sending it back to the 8th Circuit, as the DOJ suggested, the Court appointed an attorney to defend the decision below.  About two or three times a year, the Court will appoint an amicus to argue positions abandoned by the parties.

A wealth of decisions from Columbus.  In State v. Dye, the court addressed the question of what happens if a victim dies after the defendant has already been convicted of a crime in regard to the incident.  That's not a double jeopardy issue -- if the defendant pleads guilty to, say, felonious assault, he can still be convicted of murder if the victim dies later, because death is an additional element.  But there is a due process and contractual issue involved where the defendant has pled guilty, and in 1993 in State v. Carpenter, the court held that  a plea to a lesser offense barred a subsequent prosecution unless the state had specifically reserved the right to bring further charges.  In Dye, the state had argued that there really hadn't been a plea "bargain":  Dye had pled guilty to the indictment, although some specifications had been dismissed, and had been given the maximum term.  The court found that the dismissal of the specifications and its agreement that Dye could remain free on bond pending sentencing, coupled with both parties being aware of the gravity of the victim's injuries -- the car accident Dye had caused had left him a quadriplegic -- showed that the result was a "negotiated" plea, in the absence of which the state's failure to reserve the right of further prosecution barred it from doing so.

In State v. Davis, the state had called the defendant's wife to testify, without anybody apparently remembering that there is such a thing as spousal privilege.  The 8th District had reversed the ensuing conviction, finding that failure to advise the witness of her right not to testify "constitutes reversible plain error."  Those words are not from the 8th; they're a quotation from a Ohio Supreme Court decision on that point.  Well, says the court in Davis, we really didn't mean "constitutes reversible plain error," in the sense that it's automatic; an appellate court still has to determine if the error substantially affected the proceedings, and so it gets reversed and remanded for that purpose.

In State v. Miller, the defendant had pled guilty, with an agreement to pay restitution of  $20,000, before a visiting judge.  Come sentencing, the judge forgot to impose it.  Two months later, the State moved to amend the sentencing entry to include restitution, and the regularly-assigned judge granted it by nunc pro tunc entry.  Two judges on the 8th found that was a proper use of the procedure, but that position found nary a vote among the Supremes, with the syllabus saying it all:  "A court may not use a nunc pro tunc entry to impose a sanction that the court did not impose as part of the sentence.

Not much happening in the courts of appeals, but let's take a look...

Criminal.  1st District holds that trial judge erred in granting motion to suppress in DUI case on basis that sobriety tests not conducted in accordance with regulations; smell of alcohol, slurred speech,etc. enough to provide probable cause for arrest... 2nd District holds that, pursuant to Confrontation Clause as interpreted in Melendez-Diaz (discussed here last Wednesday), results of blood test required in-court testimony by person who drew blood and person who tested it... 10th District says trial court erred in denying motion to seal record of arrest on basis that defendant owned a gun... 2nd District says venue proper in bad check case in county where issuing bank dishonored check... 10th District rejects claim of ineffective assistance of counsel in murder case for failure to request charge on voluntary manslaughter, says decision not to request charge could have been part of "all or nothing" strategy... 12th District upholds placement of GPS device on undercarriage of defendant's car, says no expectation of privacy; wish they'd read this post...

Civil.  6th District upholds trial court's grant of motion to release mother's mental health records for in camera inspection in child custody matter... 12th District notes than motion to vacate cognivit judgment does not require showing that defendant entitled to relief under one of the grounds enumerated in CivR 60(B)(1) through (5), only needs to show meritorious defense and that motion was timely...

Thanks for asking.  State v. Davis, as noted, involved the question of whether a wife who testified for the State should have been advised of the spousal privilege.  Nobody -- not the prosecutor, not defense counsel, not the judge -- thought to do this.  In fact, it wasn't argued as an issue on appeal; the 8th District raised it sua sponte.  The State had brought along the prosecutor who actually tried the case, and had him sit at the table to watch the oral argumentAnd listen... he got to hear Judge Pfeifer launch into this tirade, toward the end of the State's rebuttal:

I think the troubling thing for us is that here's another case out of Cuyahoga County where the rules of evidence are as plain as a barn door and it's just ignored by the prosecutor.  How much incompetence do we have to continue to tolerate?

The criticism's a bit unfair -- I know the prosecutor, and he's a sharp guy, and nobody else caught it, either.  But to spend over four hours in a car for that?


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