Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


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.

Good news for Nancy Smith and Joseph Allen.  As I wrote back in 2009, their 1994 convictions for child sexual molestation were tossed out, albeit under unusual circumstances:  fifteen years after they were convicted and sentenced to life in prison, the judge -- different from the one who presided over their trial -- granted a Rule 29(C) motion for acquittal.  The fact that the rule provides a fourteen-day, rather than fifteen-year, period for filing such a motion was rendered irrelevant by the fact that the defense hadn't even filed one. 

I didn't hold out too much hope for that being sustained on appeal, but the Supreme Court's decision last week in State v. Ross might change that.  Ross similarly involved a 29(C) motion.  Although it was timely filed, it was originally denied; after various Federal court proceedings, the defense "renewed" their motion three years later, and the trial court reconsidered and granted it.  The State appealed, asserting that since the renewed motion was filed outside the time limit, the trial court lacked jurisdiction to grant it.  The 9th District rejected that contention, holding that the initial denial was an interlocutory order, subject to reconsideration at any time.  The Supreme Court wasn't buying either argument:  the time limit was procedural, not jurisdictional, but the "renewed" motion should have been treated as a new motion and, since it was filed well after the deadline, should have been denied.  But the State's right of appeal in a criminal case is limited to those situations defined in RC 2945.67, and the section does not permit appeal from a final verdict of acquittal.  That includes a 29(C) ruling, says the court, so the ruling in Ross stands.  Given the language of the opinion, it's difficult to see how a different result would be reached in the cases of Smith and Allen.

Good news for Megan Goff, too.  Indicted for aggravated murder for emptying two clips into her estranged husband, she asserted the battered spouse defense.  The trial court ruled that if she was going to introduce expert testimony on the subject, she had to submit to an examination by the State's expert.  In State v. Goff, the court recognizes that fair play requires that if the defendant intends to introduce expert testimony on the battered spouse syndrome, the State is entitled to their own examination of her. 

That only applies, though, if the defense intends to introduce more than generalized expert testimony about the battered spouse syndrome; if the testimony is limited to a description of the syndrome and its characteristics, primarily in hypotheticals, rather than whether the defendant herself actually suffered from the syndrome, the State doesn't get to conduct its own examination.  The big problem here, though, was that the State's expert didn't venture an opinion on whether Goff suffered from the symptom, but spent virtually his entire time recounting the discrepancies between what she had told him and what she'd told the police about the incident; his role thus "became essentially like that of an agent of the State recounting unwarned statements made in a postarrest custodial setting."  The court reverses and remands for a new trial.

No new trial for Linda Cook, a lawyer disbarred several years ago for filing a phony deed on July 12, 2001.  That was discovered in 2004, and the State didn't get around to indicting her for tampering with records until July 18, 2007.  The statute of limitations is six years for a felony, but there's a provision that says the period doesn't run "during any time when the corpus delicti remains undiscovered."  Cook argues that if the statute of limitations hasn't expired before the corpus delicti is discovered, the tolling provision doesn't apply.  There's not much basis for that argument, other than a 1999 Supreme Court decision which pretty much held that way.  In State v. Cook, the court decides its earlier decision should be "limited to the facts," which is courtese for "yeah, we screwed the pooch on that one." 

Several civil decisions of note.  In Cleveland v. State, the Court upholds a state statute which effectively abolished any local gun regulations.  I'm not particularly knowledgeable about the "home  rule" provisions of the Ohio constitution, but the state/local issues presented by that seem to mirror the federal/state sovereignty debate on the national level.  In the latter, conservatives have no trouble arguing that decisions should be made mostly by the people affected by them, rather than the "pointy-headed bureaucrats" in Washington.  For whatever reason, many of those same people seem to have little trouble with pointy-headed bureaucrats in Columbus deciding that Cleveland's gun problem is no different from that of Logan, Ohio (pop. 6704), and that the same laws should apply to both.  Or, more precisely, lack of laws, which was really the point of the state legislation.

Two civil cases of note, Fed. Ins. Co. v. Executive Coach and Allstate Ins. v. Campbell.   Fed Ins. involved the tragic Bluffton University accident, when five members of the baseball team were killed en route to a game when the bus driver mistook a ramp for an expressway lane and plunged off the road.  Although the university had contracted with Executive Coach for the excursion, and Executive Coach had hired the driver, the court gave a liberal interpretation of the university's insurance policies and held the driver was covered under them. 

In Allstate, three teenage boys had placed a foam rubber deer in a roadway just over the crest of a hill, so that drivers couldn't see it until they were 15 to 30 yards away.  To what should have been no one's surprise, this resulted in a driver trying to take evasive action, but losing control of his car and sustaining serious injuries.  Allstate, the boys' parents' insurance company, had gotten off the hook by using the policy's "intentional act" exclusion, but the 10th District reversed, holding that there was a genuine dispute of fact as to whether the boys intended harm, and whether harm was substantially certain to result from their actions.

This gets into the "inferred intent" doctrine, which the Supreme Court developed in response to attempts to gain coverage for child molestation and even homicide on the basis that the insured didn't "intend" to cause harm; in those cases, the court held that the insured's act was "substantially certain" to cause harm, so that intent to do so could be inferred.  The court refuses to extend the doctrine, holding that it "applies only in cases in which the insured's intentional act and the harm caused are intrinsically tied so that the act has necessarily resulted in the harm."  Here it didn't; other cars had gone by without incident.  I don't do much civil work anymore, and the most notable thing about these cases to me was this particular court handing two ruling against insurance companies in a week.


Recent Entries

  • November 15, 2017
    What's Up in the 8th
    Plea withdrawals (again), sexual predator hearings, and an appellate law question
  • November 7, 2017
    What's Up in the 8th
    Don't listen to prosecutors about the law, good new/bad news jokes on appeal, and the Byzantine course of a death penalty case
  • October 24, 2017
    What's Up in the 8th
    Trying to change the past
  • October 16, 2017
    En banc on sentencing
    The 8th District takes a look at what State v. Marcum means
  • October 13, 2017
    Friday Roundup
    Musings about the death penalty and indigent defense
  • October 11, 2017
    Case Update
    SCOTUS starts its new term, and the Ohio Supreme Court hands down two decisions
  • October 10, 2017
    What's Up in the 8th
    Collaboration by inmates, fun in Juvenile Court, the limits of Creech, and more
  • October 5, 2017
    State v. Thomas
    The Ohio Supreme Court reverses a death penalty conviction
  • October 4, 2017
    Russ' Excellent Adventure
    A juror doesn't like me. Boo-hoo.
  • October 3, 2017
    What's Up in the 8th
    What not to argue on appeal, waiving counsel, the perils of being a juvenile, and expert witnesses