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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

Most US Supreme Court watchers know that the Court has long delighted in playing smackdown with the 9th Circuit, and it did so again last week in Felkner v. Jackson.  It could hardly be faulted.  Jackson had raised several Batson challenges at trial, which were rejected on appeal through the California courts.  Jackson then filed a habeas action, but the Federal district court, noting that the standard was whether the state court adjudication "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," held that it did not.  This was reversed in a three-paragraph unpublished opinion by the 9th, with no discussion of the facts or the reasoning of the three other courts which had considered the matter.  The Court unanimously reverses, the per curiam opinion labeling the 9th's decision "as inexplicable as it is unexplained."

In other action, the Court had oral argument in J.D.B. v. North Carolina, which poses the question of whether a minor being interrogated at a school by a police officer need be advised of his Miranda rights.  I'll have more on that later this week.  The Ohio Supreme Court issued no decisions, but the missing persons bulletin on them was recalled when they appeared on Tuesday for oral argument.

Apparently, some judges on the appellate courts were MIA as a result of St. Patrick's Day festivities last week; not much going on there, either...

Criminal.  Where defendant convicted of multiple offenses, trial court need only impose post-release controls for one, says 8th District...  10th District rejects defendant's ineffective assistance of counsel claim for lawyer's failure to retain expert on eyewitness ID... 5th District rejects claim that state committed a discovery violation by not providing until trial the written waiver of Miranda rights the defendant had signed...

Civil.  3rd District upholds decision designating mother as residential parent because father said mother should have no contact with child, and that he would discourage child's relationship with her... 5th District says that reasonable minds could find fire department truck's driving 50 in 25 mph zone was reckless, city not entitled to summary judgment on sovereign immunity claim...

Pelfrey conflict.  In State v. Pelfrey, the Supreme Court held that "a verdict form signed by a jury must include either the degree of the offense of which the defendant is convicted or a statement that an aggravating element has been found to justify convicting a defendant of a greater degree of a criminal offense."  Two months ago, in State v. Pace, the 10th District held this was satisfied when the verdict form alleged that defendant was guilty "as he stands charged in Count 1 of the indictment."  Last week, the 10th certified a conflict on that question, finding Pace in conflict with a series of cases from the 4th which had found that verdict form insufficient.  Stay tuned.

Bullshit traffic stop of the week.™  In State v. Cox, the police officer observed a vehicle parked in a public square with its brake and back-up lights illuminated; it remained in that position for ten minutes.  The officer initiated a stop under RC 4511.66, which prohibits parking on a highway.  The statute applies only to "any highway outside a business or residence district," and this was clearly a business district.  The trial court denied the motion to suppress, reasoning that

The question of whether appellant might have a possible defense to a charge of violating a section of the Revised Code is irrelevant to the analysis of whether an officer has a reasonable and articulable suspicion to initiate a traffic stop. An officer is not required to determine whether someone who has been observed committing a crime might have a legal defense to the charge.

The 5th District affirms, holding that "even if later the trooper's evaluation of the applicability of the statute is found to be incorrect, at the time of the stop, in the trooper's mind, a traffic violation had occurred."

I'm sorry, but this is completely wrong.  Cox didn't have a "defense" to the charge:  the statute plainly didn't apply to him.  I don't care what's in the officer's mind; if he had no objective basis for stopping Cox, that should've been the end of the matter.


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