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Case Update

Well, that was quick.  It can take a while for the Ohio Supreme Court to issue a decision after oral argument; I've seen it go as long as a year and a half.  Barely more than a month ago, the court heard oral argument in State v. Ford, involving the issue of whether a firearms spec could be attached to a charge of discharging a firearm into a habitation.  Ford claimed that it couldn't, because the firearm spec was an allied offense with discharging into a habitation -- they were committed with the same act under Johnson -- and so they merged.  When I discussed the argument, I said you could "bet the ranch on the outcome," and that Ford's attorney, despite doing a splendid job in his presentation, will be "unsurprised when the court unanimously affirms his client's conviction."  I hope he was, because that's exactly what happened, the court easily concluding that a firearm specification isn't an "offense," but rather a penalty enhancement, so questions of merger don't arise.

Opinions are starting to come out of the the US Supreme Court, too.  Last week the Court held in Bruesewitz v. Wyeth that the National Childhood Vaccine Injury Act pre-empted all design-defect personal injury claims against vaccine manufacturers, but ruled in Williamson v. Mazda Motor that Federal auto safety standards didn't pre-empt state claims, in that case one that car manufacturers should have installed lap-and-shoulder belts, rather than just lap belts, for rear seat passengers. 

The criminal case of note, for those plucky souls who practice habeas law, was the decision in Walker v. MartinOne of the barriers erected to habeas relief in recent years is procedural default:  that if somebody doesn't timely file a claim in state court, review of that claim in Federal habeas is prohibited.  In Martin, the court unanimously held that California's requirement that a state habeas petition be filed within a "reasonable time" was an adequate state ground to bar habeas review.  In the immortal words of Roger Waters, just another brick in the wall.

On to the courts of appeals...

Civil.  10th District holds that probate court does not have jurisdiction to resolve fee-splitting dispute between law firms in wrongful death action; issue must be resolved, per disciplinary rules, by mediation or arbitration by local bar association... Thorough discussion of discovery rules pertaining to work-product and attorney-client privilege in this 8th District decision; defendant law firm had represented manufacturer in products liability suit, then found itself sued for invasion of privacy because it hired a private investigator to conduct surveillance of plaintiff... Where defendant fails to file motion to stay enforcement of money judgment, payment of full judgment through garnishment proceedings constitutes "voluntary" payment, rendering appeal moot, says 6th District...

Criminal.  8th District holds that defendant can be found guilty of firearm spec even if other defendant was the one who had the gun; but see below... Allied offense alert:  9th District affirms convictions of felonious assault and domestic violence, but remands for determination of whether they were committed with a separate animus... Trial judge can't grant or deny motion for expungement without holding a hearing, says 8th District for the umpteenth time... 12th District makes up for abominable decision in search case (see below) by reversing a case for prosecutorial misconduct on numerous grounds, including comment on defendant's failure to testify; interestingly, not only did defense counsel not object to that at trial, counsel on appeal didn't mention it, either; court found it on its own review of record... 11th District holds that restaurant employee's statement to police officer that customer at drive-thru window was drunk did not afford reasonable suspicion for stop in absence of additional description of signs of intoxication...

This is wrong on so many levels.  In State v. Popp, the 12th District affirms the denial of a motion to suppress a search based on the followed facts:  the police are investigating an area of high drug activity.  They observe Popp pull up and somebody get into his truck.  The truck pulls another ten feet into the parking lot, at which point the other person exits.  Based solely upon that, the police officer (a) stops Popp's vehicle, (b) has him exit the vehicle, (c) puts him in handcuffs and places him in the back of the police cruiser, (d) searches Popp's vehicle, finding a rock of crack cocaine.  The court cites Michigan v. Long in support of its view that the officer was justified in conducting a protective sweep of the car for weapons, forgetting that in Long, the sweep was upheld because the police had already observed a weapon in the car when the defendant got out of it.  They also hold that the cops had probable cause to search the car.  I have a hard time buying that somebody getting into a car and then getting out twenty second later gives reasonable suspicion of drug activity, but probable cause?

I've said before that the 8th District is the most 4th-Amendment friendly in the State.  That search would have been tossed in a Cleveland minute up here.

More on gun specs and complicity.  Despite the 8th District's decision in State v. Ronny, mentioned above, that one can be convicted of a firearm specification even if it was a co-defendant, not him, that possessed the gun, Steve Hardwick, one of the bright guys down at the state PD's office, has an interesting counter argument:  you can't be guilty of "complicity" to a firearm spec because the complicity statute applies only to offenses, not specifications. 

It's not a bullet-proof argument, the main problem being that is that way back in 1986, the Ohio Supreme Court ruled that one can indeed be convicted of a the spec "regardless of whether he was the principal offender or an unarmed accomplice."  But the argument got some legs with last week's Supreme Court decision in State v. Ford, discussed above, holding that discharging a firearm into a habitation and a firearm spec weren't allied offenses because the spec wasn't an "offense."

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