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Case Update

Bullcoming v. New Mexico, reviewed Friday, was the big decision out of SCOTUS last week, but not the only one.  The case of Anna Nicole Smith, whose life was dedicated to proving the maxim that you can marry more in an afternoon than you can earn in a lifetime, was finally concluded.   Thirteen months after her marriage to octagenarian oil magnate J. Howard Marshall in 1993, he died, and the battle over his $1.6 billion estate was joined, with Smith on the one side and Marshall's son Pierce on the other.  The case continued after the death of each, Pierce's in 2006 from an "aggressive infection" and Smith's the next year from a drug overdose.  A federal bankruptcy court had given Smith $89 million, but last week in Stern v. Marshall, the Court, in a rare affirmance of the 9th Circuit, held that although the bankruptcy court acted within the powers granted it by Congress,Congress had given the bankruptcy court more powers than it could under the Constitution.  The opinion did not disclose how much of that $1.6 billion has been spent on lawyer fees over the better part of the last two decades, but I'm guessing the answer is "a lot."

Two more reminders that much of the Court's work deals not with constitutional law, but with questions of statutory interpretation.  CSX Transportation v. McBride involved the Federal Employer's Liability Act, which protects railroad workers who are injured on the job.  The Court holds that, unlike the situation in a regular personal injury case, McBride did not have to show that the railroad's negligence was the proximate cause of the injury; FELA only required him to show that the railroad's negligence "played a part -- no matter how small -- in bringing about the injury."  Freeman v. US involves plea bargains under the Federal rules.  Freeman, charged with distributing cocaine, had pled in return for an agreement that the prosecutor would recommend a 106-month prison sentence, a sentence squarely within the Sentencing Guidelines.  Three years later, the Commission reduced the guidelines sentence for the crime, and Freeman sought to have his sentence lowered.  Although four members of the Court agreed he could, Justice Sotomayor joined them only on the grounds that a defendant like Freeman would be entitled to a sentencing reduction only if the agreement specifically states that the sentence was based on the Sentencing Guidelines.  Sotomayor's opinion is thus the controlling one.

The Supreme Court closes out its 2010 term today, with about the only big opinion left the one on California's law prohibiting sales of violent video games to minors.  The smart money is 8-1 against the law, with Alito dissenting.

In Columbus, the only opinion of note was State v. Mbodji, where Mbodji appealed his misdemeanor domestic violence conviction, claiming that the complaint hadn't been reviewed by a judge, prosecutor, or magistrate, as required by RC 2935.09(D).  The court held that the statute wasn't jurisdictional, and that Mbodji waived the defect by not filing a motion to dismiss under CrimR 12(C).

On to the courts of appeals...

Criminal.  2nd District rejects claim of disproportionate sentence of 5 years for defendant when co-defendant got probation for same charges, based primarily upon fact that co-defendant pled guilty and expressed remorse and defendant went to trial and didn't... Even Cleveland cops can't screw up this one:  8th District upholds search of car where officers smelled marijuana as they approached, reaffirms that smell of marijuana gives probable cause to search vehicle... 10th District concludes that 4th degree misdemeanor disorderly conduct is a lesser included offense of inducing panic; requirement in disorderly conduct that offense be committed in presence of police officer, which is not included in inducing panic, is a "special finding" which enhances the penalty for the offense, not an element of the offense... 10th District upholds expert testimony on gang activity, says Daubert factors not applicable since such testimony depends upon expert's knowledge and experience rather than on expert's theory and methodology... Restitution order to insurance company violated RC 2929.18(A)(1), says 3rd District...

Civil.  9th District holds that trial court violated law of the case doctrine by granting appellee's motion for reconsideration and awarding hm attorney fees on remand, since scope of remand was not about fee issue... Defendant counsel's abandonment of case took it out of CivR 60(B)(1) for purposes of obtaining relief from judgment; while ordinarily neglect of attorney will be imputed to client, abandonment will not be, and relief is appropriate under 60(B)(5), says 12th District... CT scans could be admitted as business records, says 3rd District...

Picky, picky.  In Weir v. Weir, the 9th District's burnishes its reputation for being perhaps the most hypertechnical district in Ohio.  The trial court had modified spousal support in a divorce decree; the decree had reserved jurisdiction to do so, and the trial court found that "there has been a change of circumstances that was not contemplated at the time of the divorce."  Alas, the law requires the change to be substantial, and because that word was not included in the entry, the appellate court decides that the trial court lacked jurisdiction to modify the award.

Cases I never got around to reading... The headnote for the 10th District's decision in Williams v. Collins:

Inmate's suit, alleging that he was subjected to cruel and unusual punishment under U.S. Const. Amend. VIII when prison officials deprived him of state-issued soap within inmate housing units, was properly dismissed on summary judgment as the inmate had access to soap and suffered, at worst, a temporary deprivation of free soap with no ill effects.


Recent Entries

  • November 15, 2017
    What's Up in the 8th
    Plea withdrawals (again), sexual predator hearings, and an appellate law question
  • November 7, 2017
    What's Up in the 8th
    Don't listen to prosecutors about the law, good new/bad news jokes on appeal, and the Byzantine course of a death penalty case
  • October 24, 2017
    What's Up in the 8th
    Trying to change the past
  • October 16, 2017
    En banc on sentencing
    The 8th District takes a look at what State v. Marcum means
  • October 13, 2017
    Friday Roundup
    Musings about the death penalty and indigent defense
  • October 11, 2017
    Case Update
    SCOTUS starts its new term, and the Ohio Supreme Court hands down two decisions
  • October 10, 2017
    What's Up in the 8th
    Collaboration by inmates, fun in Juvenile Court, the limits of Creech, and more
  • October 5, 2017
    State v. Thomas
    The Ohio Supreme Court reverses a death penalty conviction
  • October 4, 2017
    Russ' Excellent Adventure
    A juror doesn't like me. Boo-hoo.
  • October 3, 2017
    What's Up in the 8th
    What not to argue on appeal, waiving counsel, the perils of being a juvenile, and expert witnesses