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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

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...

Civil.  6th District rejects conflict-of-interest claim in child custody case, where attorney for wife had previously represented husband in custody action from another relationship; no relationship between actions, no showing that attorney had gained confidential information in first case... Where insureds chose not to replace home destroyed by fire, they were entitled only to the actual cash value, not face value of home insurance policy, says 12th District... Provision in divorce agreement requires husband to maintain $100,000 life insurance policy so long as he has spousal or child support obligation; husband dies with one child left to get support for another nine months, 12th District holds that ex-wife remains beneficiary, gets entire $100,000, rejects claim for constructive trust by new wife...

Criminal.  Failure to contact EMS after beating child showed separate animus, convictions for child endangering and felonious assault didn't merge, says 8th District... The 4th Amendment lives:  10th District affirms grant of motion to suppress where police stopped defendant for jaywalking, then repeatedly asked him to consent for search; court says that prolonging of detention vitiated validity of consent... 9th District upholds constitutionality of OMVI statute allowing compelled blood draw under certain circumstances... Defendant's claim that his actions were involuntary because he was asleep or unconscious is in nature of affirmative defense, says 5th District, but defendant here didn't make that showing... 12th District reverses grant of motion to suppress; despite police officer's belief that he was searching car incident to arrest -- which would have been invalid under Arizona v. Gant -- smell of burning marijuana gave officer probable cause to search vehicle... 5th District reverses trial court's adjudication of juvenile as Tier III sex offender because trial judge didn't realize he had discretion to not only determine whether juvenile should be classified, but discretion to determine which Tier to put him in...

Judicial expediency.  In State v. Taylor, the 6th District rejects the defendant's five assignment of errors pertaining to his convictions for raping his stepdaughter over a period of years, but accepts his sixth:  that the court erred in sentencing him to 642 years in prison, plus eight consecutive life sentences.  Why?  Because the trial court said that it was the worst form of the offense.  That was the language required under 2929.14(C) up until State v. Foster held that requiring judicial fact-finding before imposing maximum sentences was unconstitutional.  So it gets reversed because the judge said that, and goes back to the same judge where he doesn't have to say anything at all to impose the same sentence.  I can't imagine a bigger waste of time since the Supreme Court remanded a death sentence last year because the trial court had improperly imposed post-release controls.


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