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Case Update

The only news out of Columbus is Daniel Bedford's inexorable journey to his date with a needle.  Twenty-seven years ago, Bedford went to the house of his ex-girlfriend and killed her and her new boyfriend.  He quickly confessed, and was easily found guilty.  Sentencing was another matter, however; when his conviction and sentence were affirmed four years later by the Supreme Court, three justices dissented, arguing that the prosecutor had repeatedly committed misconduct in the sentencing phase.  Bedford had an IQ somewhere between 70 and 76 at the time of the crime; his lawyers now claim that he's suffering from dementia, and has no recollection of anything pertaining to the offense.  No matter; the court denied one motion for stay last Tuesday -- again by a 4-3 vote.  Bedford filed another motion for stay, and the court has ordered that the State had until Saturday at 4:00 PM to file a response.  Sometime later today the court will deny that, and tomorrow morning, Bedford will be executed.

One inmate who may escape execution is Shawn Hawkins, convicted of killing two people in a drug deal back in 1989; last week, the Parole Board unanimously recommended that Hawkins' sentence be commuted to life without parole. 

Down in DC, nothing of note; the Court resumes session next week, with the announcement of several decisions anticipated.  In fact, the more momentous event occurred several miles south of the capital, where the Fourth Circuit held arguments on the Patient Protection and Affordable Care Act, the new health reform law passed by Congress last year.  SCOTUSBlog has links to numerous articles covering the argument, in a case which is probably destined to hit the Court next year, and which could be one of the most momentous decisions on Congressional powers in history. 

On to the courts of appeals...

Criminal.  2nd District affirms pat-down incident to subject's failure to produce a drivers' license, says that failure to produce license means that officer was going to have to put subject in rear of cruiser while verifying his information...  5th District holds that amount of restitution in nonsupport case limited to the amount owed for the period charged, not the total amount of child support arrearage... 8th District reaffirms its holding that sex offender classified under Megan's Law cannot be prosecuted under Adam Walsh Act, even if registration and reporting requirements were same under both... In absence of agreement during plea to contrary, amount of restitution cannot exceed maximum amount that is element of theft offense for which defendant was convicted, says 2nd District... 5th District holds that robbery and felonious assault are allied offenses, but here were committed with separate animus... 12th District upholds trial court's exclusion of text messages because of discovery violation by defendant...

Civil.  Plaintiff didn't present sufficient corroborating evidence that unidentified vehicle ran him off the road, 12th District affirms grant of summary judgment to insurance company... Lawyer gave improper advice to client re keeping funds which should have gone to bankruptcy trustee, but client had no right to rely on advice since his bankruptcy lawyer gave him proper advice to turn over funds, says 8th District in affirming summary judgment in legal malpractice action... Common law tort for economic loss from defective products, based upon implied warranty theory, not available to commercial buyers, says 9th District... Where magistrate divided ruling on modification of shared parenting plan into two decisions, one announced in March and one in April, mother's objections to decisions filed within 14 days of April ruling were timely, says 12th District...

Horrible Decision of the Week Award goes to the 1st District in State v. Berlinger, where the court affirms an award of $13,148 in restitution to Metro Deck, the company from which Berlinger had stolen steel, despite the fact that Metro Deck was fully reimbursed by its insurance company for the loss.  While acknowledging that the statute prohibits restitution to anyone other than the victim -- which means the insurance company couldn't get it -- the court holds that Metro Deck suffered economic loss by virtue of paying insurance premiums, and "in any event, the fact that Metro Deck was insured should not redound to the benefit of Berlinger, who caused the economic loss."

I'm sorry, this is just bad, bad law.  The statute only allows restitution for the amount of actual economic loss suffered by the victim, and Metro Deck didn't have any.  The insurance covered a lot more than just theft, so the fact that premiums were paid isn't significant.  As for the other argument, if the police had recovered all the steel, would the court hold that Metro Deck was still entitled to full restitution, on the theory that Beringer shouldn't benefit from good police work?

Oh, that's right, there wasn't a trial.  Today's lesson in appellate work is provided by the the 8th District's decision in State v. Grant, where the defendant had sought to reopen an appeal, contending that his appellate counsel was ineffective for not raising assignments of error regarding sufficiency and manifest weight of the evidence.  The problem?  Grant had pled guilty, and it's kind of hard to argue evidentiary issues when there wasn't a trial.

At least Grant was acting pro se.  In State v. Barrett, the attorney files an Anders brief, raising as the only potential assignment of error that the "conviction and sentencing is against the manifest weight of the evidence."  You guessed it:  the appeal arose from Barrett's guilty plea.  The 2nd District noted that the same attorney had filed Anders briefs in five other cases in the past two years, citing as the sole possible error manifest weight, when each of those cases also involved guilty pleas.

On the other hand, in State v. McDaniel, the 2nd District rejects the attorney's Anders argument that there are no non-frivolous issues, deciding that the legality of the search might be a potential issue, and appoints counsel to pursue it.  The court also reminds us what an Anders brief should really be:

"Anders equates a frivolous appeal with one that presents issues lacking an arguable merit. An issue does not lack arguable merit merely because the prosecution can be expected to present a strong argument in reply, or because it is uncertain whether a defendant will ultimately prevail on that issue on appeal. An issue lacks arguable merit if, on the facts and law involved, no responsible contention can be made that it offers a basis for reversal.

Gee, there's a surprise.  From a footnote in the 8th District's decision in Kapadia v. Kapadia, a divorce case:

Of importance, the magistrate issued the following statement with regards to the parties' conduct during this proceeding: "After reviewing the totality of this case, it will be readily apparent to the impartial observer that each of these individuals was focused on power, control and anger during this litigation rather than the larger issues involving division of their marital estate."

Ingenious argument of the week.  In State v. Truitt, the defendant argued on appeal that the trial judge "informed defendant that he was waiving the rights that he would have at a jury trial but did not inform him that he was waiving his right to a jury trial."  The 5th District isn't buying; the judge had advised the defendant of "all the rights that you would have at a jury trial"; despite the failure to specifically mention that defendant was giving up the right to a jury trial, the judge's admonitions were sufficient to "strictly comply" with Crim R 11(C)(2).

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