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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

 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...

Criminal.  1st District rejects claim that misdemeanor complaint filed by private citizen wasn't reviewed by appropriate public official as required by RC 2935.09, says that goes to personal jurisdiction, not subject matter jurisdiction, must be raised prior to trial... Defendant convicted of rape in 2005, classified as sexually oriented offender, comes back for resentencing because of post-release control problem in 2010, reclassified as Tier III offender; 2nd District says you can't do that, sex offender classification is separate from sentencing, couldn't be changed... School principal's search of student, after tip by police officer, was not state action, 5th District holds... Electronic home monitoring does not count as "confinement" for purpose of jail time credit, says 8th District... 5th District says that trial court erred in refusing to unseal search warrant and affidavit because of concerns for identity of informant; judge should have considered whether government had a compelling interest in keeping the warrant secret...

Civil.  Loose gravel is a minor defect, not substantial enough to avoid summary judgment in slip and fall case, 8th District rules... 5th District holds that trial court didn't err in not hearing testimony in case involving whether Ohio or California was appropriate forum for child custody matter, says statute only allows parties to "submit information," parties could do so in writing and through arguments of counsel...

Understandable.  In State v. Hampton, the defendant argues that he should have been allowed to withdraw his plea because his attorney was ineffective, in that he refused to sign an affidavit stating that he (the attorney) was a racist, was having an affair with the prosecutor, and had forged documents and signatures.  The attorney refused to sign it because, well, he didn't do any of that. 

The headnote pretty much says it all.  From LEXIS' summary of the 12th District's decision in Thompson v. Thompson

The appellate court found the wife's argument unpersuasive that the trial court placed too much emphasis on the fact that she stabbed the husband in front of the children, while placing too little emphasis on the fact that she had been the children's primary caregiver and had been an excellent mother to them.

The lower court's decision was affimred, too.  Another reason to proof-read those briefs.  The first assignment of error in the 5th District's decision in State v. Pierce:  "THE PLEA WAS UNKNOWING, UNINTELLIGNET AND INVOLUNTARY." 

Bullshit traffic stop of the week.®  In State v. Hardy, the 2nd District upholds a traffic stop under the following circumstances:  

[Officer] Velez observed [defendant's] vehicle at the intersection of Sperling Avenue and Second Street in Dayton. Velez followed the vehicle so that he could run the license plate number through his onboard computer.

The vehicle turned right on Gaddis Boulevard, then right onto Woodley Road and traveled straight after stopping at the stop sign at North Garland Avenue and Woodley. After the vehicle came to a complete stop at the T-intersection of Woodley and North Smithville Roads, the driver signaled to make a right turn onto North Smithville. Detective Velez initiated a traffic stop due to the driver's failure to signal 100 feet from the intersection.

This is legal because when the Supreme Court decided a decade or so ago that it didn't matter whether a traffic stop was a pretext, the decision was made by nine people who never had to worry about being stopped on a pretext.


Recent Entries

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    Plea Bargaining -- The defendant's view
    A look at the Supreme Court's decision last week in Lee v. United States
  • June 27, 2017
    What's Up in the 8th
    A worrisome decision on expert funding, and, mirabile dictu, a court's dismissal of a case for a discovery violation is upheld
  • June 23, 2017
    Crime and the First Amendment
    Facebook and sex offenders, and encouraging someone to kill himself
  • June 20, 2017
    What's Up in the 8th
    I come a cropper, plus inventory searches and mandatory probation
  • June 19, 2017
    Case Update - SCOTUS
    What's coming up in the US Supreme Court in the next two weeks
  • June 12, 2017
    What's Up in the 8th
    After weeks in the desert, we come upon an oasis of defense wins
  • June 7, 2017
    A switch in time
    Why what the Supreme Court did in Aalim II and Gonzales II is a bad thing
  • June 6, 2017
    What's Up in the 8th
    A turnabout on prior calculation and design, and harmless error in all its manifestations
  • June 5, 2017
    Case Update
    A death penalty case, fourteen years after the crime, and we're just getting started. And two appellate decisions on search and seizure.
  • May 31, 2017
    What's Up in the 8th
    "What's a law enforcement accountability activist?" asked someone never, but the answer is here. Plus, cell phone experts, joinder, and the fading glory that was State v. Hand.