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January 2011 Archives

Case Update

The only case out of Columbus last week was State ex rel. DeWine v. Burge, which I talked about on Friday.  I even went so far as to check out the court's oral argument calendar into March, and all I can say is boooorrrrrinngggg. 

The US Supreme Court's is pretty much out of session, too; the next conference of the justices isn't scheduled until February 18, and oral argument won't resume until February 22.  There are a couple of prominent cases that week.  One is Bullcoming v. New Mexico,  which deals with an issue left over from Melendez-Diaz v. Massachusettswhen the analyst who performed a forensic test isn't available for trial, can someone else (in this case, his supervisor), testify for him?  The Ohio Supreme Court initially held that this was permissible in State v. Crager, but reversed itself after Melendez-Diaz (discussion here).  We'll find out which time they were right.  The other case is Bond v. United States, which raises the issue of whether a defendant can challenge the constitutionality of a federal criminal statute on 10th Amendment grounds.  That's not quite as expansive as it might sound; the question is not whether the statute -- in this case, one prohibiting the use of "weapons of terrorism" -- is a proper exercise of Congress' powers, but whether a defendant even has standing to challenge it; the 3rd Circuit had held that only a state or local government has standing to do that.  Just about everybody, including the US government, has filed briefs supporting Bond; in fact, the Court had to appoint an amicus to defend the judgment.  I'll have more extensive posts on those cases after the oral arguments. 

In the courts of appeals...

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Return to Salem

Some of the names are familiar.  There was the Wee Care Nursery School case, where Margaret Kelly Michaels was charged with 299 counts in the sexual assault of 33 children; her conviction and 47-year prison sentence was thrown out based on the suggestive interview methods used by the police with the children , as well as highly questionable "expert" testimony.  There was the Little Rascals day car case, where Bob Kelly was convicted of 99 counts of engaging in rape, sodomy, and satanic ritual abuse of the children in his care, despite a complete lack of physical or forensic evidence; his conviction was thrown out six years later. 

Then there were others that aren't so familiar, like the Wenatchee, Washington, case which resulted in 43 adults being arrested on 29,726 charges of child sex abuse involving 60 children.  Or the Fells Acre Day Care Center case, where the children told of being abused by a clown and a robot in a secret room at the center, and of watching animals being sacrificed; one even claimed that one defendant had penetrated her anus with a 12-inch knife.  Again, there was no evidence other than the testimony of the children.

Some of the defendants got lucky.  Dale Akiki, a volunteer baby-sitter at a church, was accused of satanic ritual abuse, including killing animals and drinking their blood in front of the children, but was acquitted, and eventually won money in a lawsuit against the county for bringing the case.  So did Richard and Kari Klassen, who had been charged with running a satanic cult called the Brotherhood of the Ram, which supposedly practiced ritualized sexual abuse of children.

Nancy Smith and Joseph Allen got a break, but their luck ran out yesterday.

Continue reading "Return to Salem" »

Coming to a court near you

Although the Ohio Supreme Court hasn't come down with any decisions since the flurry of big ones at the end of the year, it's back in session for oral arguments, and I thought I'd take a day to look at some of them.

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A fundamental right

Two years ago, in District of Columbia v. Heller, the Supreme Court held that the 2nd Amendment guaranteed an individual, rather than collective, right to bear arms.  Last year, in McDonald v. City of Chicago, the court applied the 2nd Amendment to the states.  In the wake of Heller, numerous legal observers, including me, opined that the decision would have an affect on gun regulations, as I suggested here:

I recently had a client charged with having a weapon under disability, based on a twenty-year-old drug conviction.  If there’s an individual constitutional right to own weapons, does the age of the conviction and the nature of the crime preclude imposing a disability on that basis?  Can you argue that there’s no “compelling interest” in imposing a disability in those circumstances?

Sad to say, as I acknowledged here, that argument went nowhere:  there was a concurring opinion in a 10th Circuit case suggesting that felon-in-possession laws might be questionable in non-violent or non-drug cases, and there was a favorable district court ruling that got overturned on appeal, but nobody was listening to those who suggested that Heller/McDonald required a fresh look gun disability laws.

Until now.

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What's Up in the 8th

The Ohio Supreme Court handed down some momentous decisions in the last few weeks of 2010, perhaps none more so than State v. Johnson, which overruled State v. Rance and announced a new method of engaging in allied offense analysis.  Or perhaps an old one... The court struggles with it in one case, and in several more engages in more work than it needs to.

Continue reading "What's Up in the 8th" »

Case Update

 No big news out of DC.  The Supreme Court did engage in its favorite contact sport -- beating up on the 9th Circuit -- unanimously reversing the latter court's grant of habeas in two cases, Harrington v. Richter and Premo v. MooreThe former decision holds that a state court's summary disposition of a case is still entitled to deference in habeas, and the latter reinforces the difficulty of proving ineffective assistance of counsel; Moore had claimed that his attorney should have filed a motion to suppress his confession, but given the two other admissions Moore had made to others, the Court concluded the exercise would have been pointless.

In Columbus, two Supreme Court justices get attention for what they say in their swearing-in ceremonies, rather than in their opinions.  Justice Paul Pfeifer, one of the authors of Ohio's death penalty law in 1981 while he was in the legislature, called for its abolition, saying that it is now being used for cases for which it was never intended.  He also took a shot at the numerous amendments to Ohio's constitution that have been added over the years, citing the amendment creating the Ohio Livestock Care Standards Board as one particularly idiotic (my words, not his) example.  True that.  Meanwhile, incoming Chief Justice O'Connor called for reform of the state's probation system.  A bill to do that died in the legislature last year, but budgetary pressures might force a re-think.

A case of some local interest from the 6th Circuit.  Dean Boland, a former Cuyahoga County assistant prosecutor, parlayed his prowess with technology into serving as a defense expert in some notorious child pornography cases.  In one, he took "stock" photos of two children and used various software techniques to "morph" them into pictures of children engaging in sex, then argued that the child porn law was unconstitutionally overbroad because a defendant could not determine whether the image he was viewing was actual or virtual.  The parents of the children he'd used got wind of it, and sued him under the civil remedy provisions of the child pornography act, which provide for minimum damages of $150,000.  The lower court granted summary judgment on the grounds that a defense expert had immunity from suit, but in Doe v. Boland the 6th Circuit found no such immunity in the statute, and remanded it back for consideration of any other defenses, or trial. 

On to the courts of appeals...

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Friday Roundup

Our tax dollars at work.  More accurately, Florida taxpayer's dollars.  And they're up in arms over the First District Court of Appeals new courthouse in Tallahassee, which was originally budgeted for $22 million and came in at $48.8 million.  (The tab will be around $70 million when interest on the bond issue is figured in.)  How did they get a $26 million overrun?  As this article recounts, it might have something to do with the 27 flat screen TV's.  Or separate bathrooms and kitchens for all 15 judges.   Or the granite counter and desk-tops.  Or the "miles of African mahogany."  (What, Florida mahogany wasn't good enough for them?  Note to self:  Google to find out if there is such a thing as Florida mahogany.)  The legislature is up in arms over the matter -- Florida, like just about every other state, is in the midst of a budget crisis -- and the two judges primarily responsible for the fiasco were recently grilled by the state senate budget committee, with its chairman promising to prevent "an irresponsible rogue state judge from spending tax dollars" in the future.

I can happily report that our 8th District judges have foregone similar luxury.  The court of appeals shares its building with two other divisions of the common pleas court, probate and domestic, as well as with various other county departments, thus posing the possibility of some rummy wandering into the middle of an oral argument to ask where you get marriage licenses.  I don't even know whether they have separate bathrooms.  I've got an oral argument coming up in a couple of weeks; I'll ask.

Meanwhile, if you want to see real opulence, check out the Federal District courthouse they built here in Cleveland about five years ago.  I had a pretrial right after it first opened, and I'm not saying that the judges' chambers are spacious, but when I walked into one I could see the judge just over the horizon.

Cyberbullying update.  Remember when bullying meant a wedgie?  Technology marches on, and last week Matthew Riskin Bean was sentenced to 45 days in jail for his involvement with a group of other web users who tried to induce a teen to commit suicide.  (Details here.) 

What jumped out at me about the article was that this was a conviction in U.S. district court.   There have been numerous criticisms of the expansion of Federal criminal law into areas traditionally reserved to the states, and I'm at somewhat of a loss to understand why "cyberstalking" can't be handled on a more localized level.

It could be worse.  After 13-year-old Megan Meier committed suicide in 2006, which was attributed to bullying messages posted to her MySpace account, Congresswomean Linda T. Sanchez (D-CA) sponsored the Megan Meier Cyberbullying Prevention Act of 2008, which would have made it a Federal crime, punishable by up to two years in prison, to use the Internet to "intimidate, harass, or cause substantial emotional distress to another person."  Fortunately, the bill never made it out of committee, as just about everybody except Sanchez recognized the obvious First Amendment problems with the proposed law.

On a related topic, could we please stop naming laws after people, especially kids?  Adam Walsh Act, Megan's law, Megan Meier Cyberbullying Protection Act...  If I were five years old, my goal would be to make it to eighteen without having a law named after me, because if it was, it probably meant something very bad had happened to me. 

My kind of prosecutor.  David Escamilla is a cool guy.  He's the prosecutor of Travis County, Texas, where Austin is located.  Recently, police there arrested Jose Rios and Samuel Olivo for driving while intoxicated.  It wasn't your ordinary DUI; Rios and Olivo were arrested for being intoxicated while riding  mule and a horse, respectively, through Austin's entertainment district.

Escamilla decided not to pursue charges.  "The law doesn't support DWI on an animal," he explained.  "It has to be a motor vehicle or device. And our research shows a mule is not a motorized vehicle. To be absolutely sure, I watched a few episodes of 'The Lone Ranger,' and not once did I hear the masked man refer to Silver as a device."

An even bigger problem with the case was that the arrest affidavit said Rios claimed he'd had two vodka-and-cranberries.  "That doesn't seem like the right drink," said Escamilla. "This story begs for tequila."

Continue reading "Friday Roundup" »

Second thoughts on second chances

On Monday's Case Update I briefly mentioned a 12th District case, State v. Gross, which had affirmed the denial of an application to expunge an arrest record.  I'd thought of doing a little bit more on the decision, maybe a couple paragraphs at the end of the post, but got pressed for time.

I've thought about it since then, and have concluded that the decision merits its own post.  So here it is.

Continue reading "Second thoughts on second chances" »

Creating an emergency

Just a normal day at the projects for the Lexington, Ky. police, conducting drug buy/busts.  One of the dealers smelled something fishy, though, and took off running after selling some crack to an informant.  The police followed him into the apartment building, lost sight of him, but then heard a door slam at the end of a hallway.  There were only two apartments the guy could have gone into, and, smelling a strong odor of burning marijuana coming from one, the police decided to go with the odds and knocked on the door of that one and announced themselves.  There was no response; instead, they heard things being moved around, which "based upon their training and experience, the officers recognized to be consistent with the sounds of destruction of physical evidence."  So they barged in.

Wrong apartment.

Continue reading "Creating an emergency" »

What's Up in the 8th

I practice in Cleveland, and every Tuesday here I look at the decisions of the Cuyahoga County Court of Appeals.  If I lived in Athens, I wouldn't be able to do "What's Up in the 4th" every week.  Since the beginning of the year, the 4th District has issued four decisions; last week alone the 8th handed down forty-seven. 

Lucky me.  Let's take a look.

Continue reading "What's Up in the 8th" »

Case Update

The US Supreme Court gets back in session with several oral arguments last week, including one in a major search case we'll talk about on Wednesday.  Hint:  it may be better if you not only don't Bogart that joint, but don't flush it when The Man comes a'knocking.

Down in Columbus, the only thing of interest was the decision in In re Griffin, in which the court denied Hasan Griffin's application to take the bar examination.  The court found that he lacks the requisite character to become a lawyer because he has "no plan or ability" to pay the $170,000 in student loans that he'd piled up, all but $20,000 of it incurred in getting his law degree.  As a recent New York Times article pointed out, law school graduates "face the grimmest job market in decades."  Given that, and that the average law student graduates with $100,000 in debt, one suspects that Griffin is not alone in failing to come up with a coherent strategy of working that debt off.

In the lower courts, the heavy lifting was done by the 8th District; of the 116 decisions from the courts of appeals, 47 of them were out of Cuyahoga County...

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Friday Roundup

The Next Big Thing.  I ran into John Martin, the diminutive head of the county PD's appellate division, the other day, and he let me in on the new Big Idea.  Since the Supreme Court's finally tosses Rance, the likelihood is that the determination of whether two offenses are allied is much more likely to hinge on the determination of whether there was a separate animus, rather than Rance's hypertechnical abstract comparison of the elements.  So who gets to decide whether there was a separate animus?  The judge, of course.  Martin's argument is that under Blakely v. Washington, you're entitled to a jury finding on that.

I told him I thought that was a hard sell, given Oregon v. IceIn Ice, the state statutes carried a presumption for concurrent sentences, but that presumption could be overcome if the judge found that the offenses did not arise from the same conduct or created a greater risk of harm to the victim.  The Supreme Court, of course, held the statutes didn't run afoul of Blakely, because traditionally (i.e., at common law) the determination of whether to impose consecutive sentences for multiple offenses was solely within the judge's prerogative, not the jury's.  Essentially, Ice upheld the right of a judge to impose consecutive sentences because he found that the crimes didn't arise from the same conduct. 

Still, anything Martin says should get some attention; his elfin proportions house an exceedingly sharp mind.  In oral argument on several cases in the Supreme Court over the past two years (here and here), he argued for using conduct as the standard for determining whether offenses merged, which the court finally got around to adopting in State v. Johnson last month.  So run it up a flagpole and see who salutes.

Drawing the line.  The single most important lesson for a lawyer, and the hardest one to learn, is how to turn down money.  Someone comes in to retain you on a case, and you can smell trouble.  Oh, it's not the usually indications, like the fact that they have their entire legal file with them in a shopping bag, or that they've had three previous lawyers on their case:  any attorney who hasn't flatlined his last EEG knows enough to usher them out of the office without further ado.  No, I'm talking about the guy who talks too loud or doesn't make eye contact with you or claims that he was set up the police (who, of course, have nothing better to do than frame people for 5th degree felonies) or the guy who feels that it is monumentally important for you to hear his Life Story before he gets into the details of why he's there. 

So you tell him that you'd really like to help him out, but for something like that you'd have to charge at least five grand with a retainer of three, but instead of looking shocked, muttering "five grand???" and stomping out of your office, he pulls out a wad of $100 bills and counts out thirty of them and plops them on your desk.  And even as you're writing the receipt, you know that it's the last money you're going to see from him, that until the case is over and probably well after that you're going to rue the day you took it, but you can't help it:  you just can't bring yourself to watch three thousand dollars walk out the door.

So I've taken cases, done things in my legal career that I wish in retrospect I hadn't done.   I didn't get into law for the money, but I've taken cases I knew I shouldn't have just for the money.  But you know what?  I still wouldn't have taken a case involving a lawuit over this commercial for cat litter:

[youtube]http://www.youtube.com/watch?v=SheBMEPMsb0&feature=player_embedded[/youtube]

I would not take a case which involved me saying in court papers that "independently conducted research" shows that the Clorox ad is "severely flawed" because it used eight cats which had access to only two litter boxes, since "it is well known that inter-cat behavior can impact cats' use of a particular litter box in ways that have nothing to do with cat preference for or rejection of a particular litter."  Or that with cats "toileting issues are secondary to issues with the litter or litter box," that "a toileting problem can also stem from factors that are unrelated to the litter or litter box, such as intercat aggression," and that "a cat that is frightened of other cats in the home may feel vulnerable accessing or using the litter box and may ultimately select an inappropriate toileting site."

I can suggest an appropriate toileting site for the lawsuit.

Continue reading "Friday Roundup" »

Venting

Ever have one of those days when you would have been better off if somebody had stabbed you in the head during breakfast?

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Taking another crack at the exclusionary rule

Back in November, I mentioned the 8th District's decision in State v. Mansaray, in which US Marshalls, in executing an arrest warrant for somebody else, entered Mansaray's house and observed drugs in plain view.  Mansaray's conviction went by the boards when the 8th threw out the search, holding that an arrest warrant doesn't give the police the right to enter a residence of a third party unless they have a reasonable belief that the person named in the warrant lives at the residence and is in fact home.

The State recently filed a Memorandum in Support of Jurisdiction, seeking the Ohio Supreme Court's review of the decision.  The first proposition argues that there's a conflict in the law:  certain Ohio appellate decisions go one way, while there's a US Supreme Court decision that goes the other.  Gosh, the US Supreme Court says one thing about federal constitutional law, Ohio appellate courts say another; that's gonna be a tough one to sort out, huh?

But the second argument in Mansaray might get some traction; in fact, the Supreme Court's already accepted another appeal on that very proposition.  And that proposition goes to the continued vitality of the exclusionary rule.

Continue reading "Taking another crack at the exclusionary rule" »

What's Up in the 8th

The court takes a breather after its holiday output, handing down only eight decisions, two of them pro se petitions for sundry relief in criminal cases.  The latter raise no interesting legal issues, other than that such petitions are about the only ones left where the rules of pleading are enforced with ruthless vigor.  Even the most idiotic civil complaint will usually survive a motion to dismiss for failure to state a claim, but some poor rummy files a habeas petition claiming that his jailers get their jollies from attaching electrodes to his genitals every morning, and it gets peremptorily tossed because he didn't attach a copy of the journal entry of his commitment.

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Case Update

The US Supreme Court gets back in session next week, and its Ohio counterpart took a respite from the rush of decisions in the last two weeks of the year.  One we didn't mention last week was the "other" Johnson case, State v. Johnson, which involved Johnson's conviction for having a weapon under disability based on a prior drug conviction.  Last year in State v. Clay (discussed here), the Supreme Court had held that the reckless mens rea applied to whether the defendant was aware that he was under an indictment which disqualified him from owning a weapon.  The 8th District had extended that in Johnson to require the State to prove that Johnson was "reckless" in knowing that his prior convictions -- one a misdemeanor drug offense and one for selling counterfeit narcotics -- precluded him from having a weapon.

State v. Colon and the reconsideration of that decision in Son of State v. Colon represented a lamentable obfuscation of the law regarding mens rea, which was partially corrected by the overruling of those decisions earlier this year in State v. HornerBut only partially, as we learn in Johnson.  As I mentioned when I discussed the oral argument in Johnson, the court had an easy out:  it could hold that while Clay could claim a mistake of fact -- he wasn't aware he was under indictment -- Johnson seemed to be argued a mistake of law:  that he wasn't aware that his drug conviction disqualified him from having a weapon.  Instead, the court meanders through the law on mens rea, rejecting the dissent's argument that because the statute begins "no person shall knowingly possess," that mens rea applies to the subsections as well, and holds that under RC 2901.21(B),  "recklessness" is not the supplied mens rea unless "there is a complete absence of mens rea in the section defining the offense and there is no plain indication of a purpose to impose strict liability."

The syllabus concludes that a conviction for violation of weapons disability under RC 2929.13(A)(3) -- convicted of or under indictment for any offense involving drugs -- does not require proof of a culpable mental state.  But wait a minute, didn't they say in Clay that recklessness was required for the under indictment part?  Oh, shut up.

In the courts of appeals...

Continue reading "Case Update" »

What's Up in the 8th

Criminal appellate work isn't for those with self-esteem issues.  It's a lot tougher on your ego than trial work.  Although stats vary, most show that defendants win at trial around 40% of the time; the rate for successful appeals is closer to 10%.  A criminal case can result in a plea bargain, which renders murky "won-lost" distinctions; you don't bargain in an appeal.  Unless you talk to the jury, you never really know why you lost a criminal trial.  In an appeal, it's right there in black and white:  that argument you spent hours researching and honing until it it was an exemplar of cogency and persuasiveness is dismissed as "devoid of merit."  And sometimes the court will even twist the knife, telling you that your arguments were winners, but you still lose because it didn't matter:  any mistake at trial was "harmless error."

And that's what happened to me two weeks ago in State v. Blazer

Continue reading "What's Up in the 8th" »

Narrowing Bezak

This was London Fischer's argument:  When he was sentenced back in 2002 to 14 years in prison for various and sundry crimes, the judge hadn't properly advised him of post-release controls.  The Ohio Supreme Court had ruled in a number of cases, most recently State v. Bezak, that if a judge failed to properly impose post-release controls at the time of sentencing, the sentence was void.  If Fischer's sentence was void, that meant there wasn't a final order to appeal from.  If there wasn't a final appealable order, the appeal Fischer took from his initial conviction was void, too; a court of appeals only has jurisdiction over final orders.  What all this meant was that when Fischer had his brand new sentencing hearing in 2008 so that the court could properly impose PRC, Fischer's appeal from that was his first actual appeal.  The previous appeal was a nullity, and so res judicata didn't bar consideration of the same issues he'd raised the first time around.

Two weeks ago, in State v. Fischer, the court termed the argument "creative."  It wasn't, really; it was simply a logical extension of the court's rulings on the subject.  Of course, if they bought the argument, that would pose a host of problems:  basically, anyone who'd had PRC improperly imposed at their sentencing was not only entitled to a new sentencing, but to a brand new appeal from their original conviction as well.  After the oral argument, I'd predicted that the court wasn't going to buy this, and would overrule Bezak.  I was more than half right; the court didn't flatly overrule Bezak, but there's not much left of it.

Continue reading "Narrowing Bezak" »

Rance is dead

Six months ago, you could have made a compelling argument that the clarity of Ohio criminal law would be substantially enhanced by overruling three decisions:  State v. Colon, which had held that an indictment which tracked the language of the statute was defective if didn't specify a mens rea; State v. Bezak, which had held that sentences where post-release control hadn't been properly imposed were void; and State v. Rance, which required that, in determining whether two offenses were allied and thus merged, the court had to compare the elements of the two crimes in the abstract. 

Well, here we are, six months later.  State v. Horner took care of Colon.  Two weeks ago, in State v. Fischer (which we'll discuss tomorrow), the court decided that "void" didn't really mean void, and greatly limited the impact of Bezak.  And last week, in State v. Johnson, the Supreme Court concluded that its efforts to salvage Rance -- which I once described as being "vaguely reminiscent of Weekend at Bernie's, with the plot focused on increasingly outrageous efforts to fool people into believing that Bernie isn't really dead" -- had run its course.

Continue reading "Rance is dead" »

Punting the ball

As part of the sentencing reforms in 1996, the State legislature mandated that, before a judge could impose consecutive sentences, he had to make certain findings of fact.  Ten years later, in State v. Foster, the Ohio Supreme Court decided that was a violation of the 6th Amendment.  Three years later, in Oregon v. Ice, the US Supreme Court said that it wasn't.

Ice had to be reconciled with Foster sooner or later, and sooner came last week in the form of State v. Hodge.   Although I'd initially been quite optimistic about the outcome, that changed after the oral argument, where Justice Pfeifer lambasted the defense for wanting "one more train wreck" by asking for resentencing in all cases since Foster had been handed down.  I'd worried that "the court might just decide that there have been too many train wrecks recently."

Well, guess what?

Continue reading "Punting the ball" »

While I was away

The holidays are a good time to take off from blogging, since nothing happens with the courts, right?  Well, not so much.  I"ve been doing this for almost five years now (blogiversay coming up May 14, and no, it's not too early to start thinking about  a gift), and I can't remember a similar stretch of more momentous decisions from the Ohio Supreme Court. 

Tomorrow we'll talk about State v. Hodge, which rejects the argument that the US Supreme Court decision in Oregon v. Ice implicitly overruled State v. Foster.  On Wednesday the discussion will focus on State v. Johnson,  essentially overruling the test for merger of allied offenses established in State v. Rance.   State v. Fischer, which modifies Bezak's determination that a sentence where post-release controls were improperly imposed is void, and the other State v. Johnson, once more addressing the mens rea requirements for crimes,  will be the subject on Thursday.  We'll push the 8th District summary back to Friday, and today we'll look at some of the other Supreme Court decisions rendered in the past in the past two weeks.

Continue reading "While I was away" »

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Recent Entries

  • July 31, 2014
    We don't need no stinking report
    The Supreme Court takes the 8th District and the legislature to task over pre-sentence reports
  • July 30, 2014
    The Supreme Court takes on consecutive sentencing
    We pop the hood on State v. Bonnell and take a look at what's inside
  • July 29, 2014
    What's Up in the 8th
    Two weeks worth of cases, and nothing special about any of them
  • July 28, 2014
    Case Update
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  • July 21, 2014
    Summer break
    A week off...

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