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Case Update

SCOTUS swings back into action this week, with oral argument in three criminal cases, one of which, Bond v. U.S., addresses the increasing practice of making a Federal crime out of offenses which normally fall within the purview of the states.  The significance of the case is somewhat muted:  the only issue it raises is whether a defendant even has standing to raise the issue.  Still, the argument might give some insight into the justices' thinking on the larger issue of federalism, so I'll take a closer look at it later this week.

The other thing of note here is that we've just hit the five-year anniversary of the last time Justice Clarence Thomas asked a question during oral argument.  I don't remember that particular occasion -- it was in a death penalty case -- but I do remember one of the few other times that he spoke up.  It was in the case of Virginia v. Black in 2002, involving the constitutionality of Virginia's cross-burning statute.  It was pretty much a foregone conclusion that the Court would strike down the statute; a decade earlier, it had reversed a conviction of a defendant who'd been prosecuted under a local Minnesota ordinance prohibiting use of various symbols, such as swastikas or burning croseses, to "arouse anger, alarm, or resentment" of minorities.  But Thomas changed the entire trajectory of the case, pointing out in argument the long history of the use of the burning cross in intimidating blacks.

I was reminded of that during the hubbub over our new Gov. Kasich's selection of an all-white cabinet.   He, and others, made the easy defense:  shouldn't merit, rather than color, be the primary qualification for the job?  Yes, but...  As Thomas proved in the cross-burning case, diversity has value in itself:  it exposes you to issues and ideas that may never have crossed your mind otherwise, because it brings a perspective that you don't have.  When the Wal-Mart gender discrimination case comes before the Court this year or next, there are going to be three women on the Court.  Someone like Ruth Bader Ginsburg, who was one of only eight women in her law school class of 500, is going to bring an entirely different perspective to the case than Antonin Scalia.  And that's all to the good. 

Nothing going on in Columbus, so let's take a look at what happened in the courts of appeals...

Criminal.  Defendant fires six shots in bar, killing one and wounding five; 2nd District says that convictions for felonious assault don't merge because of separate animus for each victim, but firearms specs do merge because they are part of continuous transaction... Judge can't impose court costs in journal entry when she doesn't do so at hearing, says 8th District, but remedy is remand for sole purpose of allowing defendant to file motion to waive costs... Abduction with a sexual motivation spec is not a felony sex offense, period of post-release controls is three years, not five, says 2nd District...  Forcible element of rape established by minor stepdaughter's testimony that, when defendant raped her, she could not move and felt scared, 8th District holds... Biggie:  2nd District affirms suppression of confession because defendant was falsely promised by police during interrogation he could get treatment in lieu of conviction; excellent discussion of law on subject...

Civil.  Fact that officer did not have his lights and sirens on when he went through intersection only one factor to consider in determining if his conduct was "wanton and reckless" sufficient to overcome sovereign immunity defense; 8th District says fact that officer's affidavit stated he proceeded cautiously was unrefuted warrants grant of summary judgment to him and city... 12th District agrees that defendant waived right to object to hearsay documents submitted at deposition by failing to object to lack of foundation at depo...

Williams update.  Last year (here and here) I made the argument that the Supreme Court's decision in State v. Williams could be interpreted to mean that if a defendant fired three shots at a victim, he could be convicted of three separate counts of felonious assault.  Others argued I was reading more into the opinion than was there.  Haven't seen anything on it since, but apparently some courts are thinking along the same lines.  In the 2nd District's opinion in State v. Young, a case involving a defendant who fired off several rounds in a bar, hitting six different patrons, the court points out in a footnote that Young shot one of them twice, and comments that "this potentially raises an issue as to whether Young could be convicted and sentenced on two counts of felonious assault for shooting Harrison twice."  Young was actually convicted of two counts of felonious assault for that shooting, one for serious physical harm and one for deadly weapon, but the trial court merged the two, the state didn't cross-appeal it, so the court doesn't reach the issue.

Note to Bar Exam commission.  The last time you heard the phrase "inchoate crimes," you were probably in law school.  The term applies to offenses that do not result in a completed crime, like conspiracy and attempt.  The latter always involves the fun question -- and we had fun in law school, didn't we? -- of when the defendant has taken sufficient steps toward completion of the crime to be charged with an attempt.

The defendant in the 8th District's decision in State v. Fowler provides a good bar exam question on that issue.  Fowler, eschewing subtlety, approached a ten-year-old boy at a playground and told him that he'd give him $100 if the boy found a "little girl" Fowler could have sex with.  The boy instead told various other people there of the offer, and they chased Fowler down and beat him up.  When the police arrived, they found Fowler sitting dazed on the curb, condoms and candy from the bag he'd been carrying strewn around the vicinity.  Yep, that was enough to warrant a conviction for attempted solicitation, says the court.

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