The big news out of Columbus was that “the Court granted motions to set execution dates in seven — count’em, seven — cases.”  Okay, the part between the emdashes is mine, but you get the point.  Where they’re going to get the drug to do it is another matter:  the manufacturer of the key drug, sodium thiopental, has discontinued manufacture, leaving states like Texas with only enough of it to execute two of the 317 people it has on death row.  An alternative source was temporarily found in England, through a West London pharmaceutical supplier that doubled as a driving school, but Britain banned export of the drug.   

The US Supreme Court returns in session next week with oral arguments and, who knows, maybe some opinions, too.  Until then, the only thing to write about is court of appeals decisions, so let’s go there now… (keep reading…)

Your client is caught in a simple buy/bust operation:  he sold twenty bucks of crack to an undercover agent.  Three years ago, this could have netted him a conviction on three separate charges:  sale of drugs, preparation for sale, and possession.  Three months ago it would have resulted in two:  sale and possession.  Does it now result in just a single conviction? (keep reading…)

A month ago, I discussed a case pending before the Ohio Supreme Court, in which it had accepted jurisdiction on a proposition of law that essentially argued for a “good faith” exception to the 4th Amendment for warrantless searches:  the exclusionary rule wouldn’t be applied unless the police conduct was “the result of deliberate, reckless, or grossly negligent disregard of Fourth Amendment rights.”  It turns out that this isn’t an argument that prosecutors are seeking to have the Ohio Supreme Court adopt; according to at least one prosecutor I’ve dealt with, and from what I hear from other defense attorneys, prosecutors are claiming that the U.S. Supreme Court adopted this test two years ago in Herring v. United States.  (keep reading…)

Ineffective assistance of counsel claims get a pretty good workout in appeals, but they’re rarely successful.  Oh, sure, every now and then there’ll be a major screwup, like failing to file a motion to suppress that would obviously be successful. 

But the more usual result will be that the court will recite the Strickland test — that the defendant has to show that counsel’s performance fell below accepted norms, and that he was prejudiced thereby — go into how attorneys are presumed to be competent, chalk up any argued error as “trial strategy,” talk about how the appeals court must defer to counsel on those matters, and call it a day.  It’s pretty unusual to see an appeals court reverse a conviction for something that clearly falls within the ambit of trial strategy or tactics.  It’s highly unusual to see an appeals court do that twice in three weeks.  That’s just what happened in the 8th District’s decisions in State v. Moore and State v. Williams, both of which reversed rape convictions because the court determined that trial counsel screwed up.  (keep reading…)

Last year, I started keeping track of the reversal rate in criminal cases in the 8th.  That got to be more of a bother than it was worth rather quickly; I quit doing it after about four months.  The stats I had at that point showed that the State won about 85% of all cases, but only about 45% of those involving search issues.

I should have kept track of how many cases from municipal court got reversed.  It had to be close to 70%, and the decision in Bedford Heights v. Boykin shows why. (keep reading…)

The pickings from the Ohio Supreme Court are so paltry – the big announcement this week:  “The Court issued nine merit decisions without opinions, 14 motion and procedural rulings, agreed to hear six cases, and declined to hear 86 cases” — that I’ve been compelled to scout the oral argument calendar for something to write about here.  Best I can see is some coming up in the beginning of next month:  State v. Chambliss, which raises the issue of whether denial of a criminal defendant’s counsel of choice is a final appealable order, and State v. Williams, which addresses the retroactivity and ex post facto concerns of the Adam Walsh Act, an issue left over from Bodyke.  Chambliss is a bizarre case, as I indicated when I discussed the 8th District’s decision on it two years ago.  I’ll have more on it, needless to say, when it actually happens.

Nothing’s actually happening in the US Supreme Court, either.  I even went to the lengths of checking out SCOTUSblog list of “petitions that we’re watching,” i.e., cases that they think the Supreme Court might agree to hear.  There’s one involving the Outer Continental Shelf Lands Act, and another where the key issue is section 4 of the Endangered Species Act.  You better believe I’ll be focused like a laser on those.  If they ever go anywhere, that is.

On to the courts of appeals, where they’re not just talking about doing stuff, they’re doing it. (keep reading…)

I gave my annual Criminal Law Update seminar for the Cuyahoga County Criminal Defense Lawyers Association a couple weeks back, and it was, as usual, well-received:  the laser light show was a big hit, and most participants found helpful my use of sock puppets in explaining Ohio’s allied offense jurisprudence.  Toward the end I got to State v. Hodge, which rejected the argument that Oregon v. Ice had implicitly overruled State v. Foster and had restored the requirement that judges make certain findings of fact before imposing consecutive sentences.  The court held in Hodge that if the legislature wanted to require that, it could, but that it would have to pass new legislation to do so. 

I suggested, as I have here, the implausibility of an incoming Republican governor and legislature deciding, in the midst of an economic crisis, to set as their top priority making it harder to give felons more prison time.  One of the judges who was there disagreed with me, though.

And he could be right. (keep reading…)

It ain’t easy being a judge.  Say you’ve got a high-profile murder case involving a shooting between rival gangs.  The police have finally located a key witness, but he’s scared to death to come in and testify, especially in a courtroom containing the defendant’s gang members.  There’ve already been altercations in the lobby between the families of the victim and the defendant, and there’ve been some interruptions inside the courtroom, too.  Do you close the courtroom to spectators during the witness’ testimony?

That’s the issue addressed by the 8th District’s decision last week in State v. Woods.  And the case carries an especially cautionary note:  if the judge gets it wrong, “notwithstanding the overwhelming evidence of [defendant's] guilt,” the case is going back for retrial. (keep reading…)

Last Friday I wrote about the Ohio Supreme Court’s decision in State ex rel. Cordray v. Burge, in which the court vacated a judgment of acquittal granted 15 years after the verdict.  The process which resulted in that acquittal began when the defendants’ attorneys noted that the journal entry didn’t comply with the Supreme Court’s earlier decision in State v. Baker, which held that the entry must contain both the guilty finding (by verdict or plea) and the sentence.  I mentioned that Burge left hanging the question of the effect of such an error on appeals, but one of the unnumbered legions of my regular readers, a sharp young lad with the state public defenders office, tipped me off that there is indeed a case in the pending before the Ohio Supreme Court which presents that very issue. (keep reading…)

Good news for my mother and her cell phone, bad news for Daniel Clark and his chances of getting that free car wash.  The court seems to be hitting its stride on allied offenses in the wake of State v. Johnson.  Of the 25 criminal cases handed down by the 8th last week, there was but a single victory for defendants, but it was a biggie:  a reversal of an attempted murder conviction because the judge closed the courtroom to take the testimony of a single witness.  We’ll talk about that tomorrow; in the meantime, as Paul Harvey would say, here’s the rest of the story. (keep reading…)