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Case Update

SCOTUS concludes another term with a bevy of decisions, the most significant of which was Brown v. Entertainment Merchants Assn., concerning California's law on restricting sales of violent video games to minors.  As anticipated, the Court voided the law, but the nine justices propounded four different approaches to the question.  Thomas dissented on the basis that minors have no 1st Amendment rights; Breyer's dissent analogized the law to curbs on minors' access to obscenity, and would allow bans on "highly realistic violent video games" for those under 17.  Alito concurred, finding the law too vague, but would have allowed a better-worded law.  His opinion garnered only the support of Roberts, however, and Scalia, writing for the majority, flatly rejected the law, in an opinion so broad it leaves no likelihood of survival for any such law, no matter how well-written.  The opinion goes so far as to hold that minors have a First Amendment right to access of information, independent of their parents; essentially, a right "to be spoken to without their parents' consent."

A large part of the majority's reasoning was that children have always been exposed in literature to scary and violent imagery -- they don't call 'em Grimm's Fairy Tales for nothing.  The law might have fared better if there'd been some empirical evidence demonstrating what proponents of such laws routinely argue:  that a kid who spends five hours killing cops and innocent pedestrians in Grand Theft Auto is more likely to decide to have life imitate art.  Other than some sketchy anecdotal evidence, though, there's not much to back that up.  Japanese television, video games, and graphic novels, all of which are freely accessible to children there, make GTA look like a video version of The Sound of Music, with no noticeable impact on the levels of violence in that country.

The other notable case last week was Arizona Free Enterprise PAC v. Bennett, challenging Arizona's public financing scheme for campaigns for state office there.  A candidate who chooses the public financing option is entitled to a certain amount of money, but he gets more if his opponent chooses private financing and spends more than he does.  Champions of private financing argued that this created a burden on their First Amendment rights, and the Court, for reasons I don't pretend to fathom, agreed.  Coupled with the announcement that the Obama campaign's target for fundraising for next year's re-election campaign is one billion dollars, and the news today that, despite the recession, CEO salary last year increased by a hefty 23%, the more jaundiced -- and I include myself in that number -- could easily conclude that we are well on our way to becoming a plutocracy.

If you're interested in that sort of thing, SCOTUSblog keeps track of all the opinions and who votes which way, which they've summarized here.  It'll come in handy the next time you're sitting in a bar and someone starts playing Supreme Court Trivia.  You'll probably be able to win a few drinks by correctly noting that Chief Justice Roberts registered the second highest frequency of voting with the majority, 91%.  (If you didn't already know that Kennedy ranked the highest, at 94%, you really shouldn't be playing.)  And I'll have my summary of the important Supreme Court decisions this term sometime in the next couple of weeks.

A disciplinary decision of note from Columbus, Cincinnati Bar Ass'n v. Hackett.  Hackett had his associates sign an agreement stipulating that, if they left the firm and took a client with them, they would have to remit 95% of the fees generated by that case to Hackett.  While non-compete agreements are common in many businesses, they're prohibited in the legal profession, because they interfere with the client's freedom to choose a lawyer.  Hackett would've been entitled to fees for the work he had done on the case before it left, but that's all.  He gets a public reprimand.

So let's head over to the courts of appeals, where the judges are less jaundiced.  In theory, at least...  Something new this week.  I'm only going to be summarizing criminal cases from the appeals court; I'll also address major civil cases from the Ohio or US Supreme Courts, but since the vast majority of the people who read this blog do it to keep up with criminal cases, that's what I'm going to concentrate on.  So let's get to it:

Murder committed with firearm and having weapons under disability not allied offenses, says 1st District... Police stop driver, ask questions regarding passing of forged check, 2nd District holds Miranda warnings weren't required because driver not in custody; lengthy analysis of factors which go toward making custody determination... 11th District notes that "unnecessary delay" in charging defendant, pursuant to CrimR 4(E)(2), does not invalidate a confession given during the delay... 10th District notes that trial courts have jurisdiction to hear post-conviction relief petitions even while appeal is pending; also holds that indigent defendant is entitled to representation by public defender if court determines that defendant is entitled to hearing on petition... 9th District kicks out search:  officer saw van parked outside bar, saw passenger look in his direction, passenger gets out and walks toward bar, and for some reason, the court finds that's insufficient to warrant an investigatory stop... 1st District says defendant's right to confrontation not violated by having three witnesses testify via 2-way video, where defendant's family and friends had repeatedly intimidated witnesses during trial... Where defendant forces victim from living room to bedroom at knife point, then forces her to model underwear for him (go figure) before raping her, 5th District finds that there was separate animus for rape and kidnapping charges... Maximum sentence is mandatory where defendant convicted of repeat violent offender specification, says 10th District... Nunc pro tunc entry does not extend the 30-day period for filing an appeal, says 3rd District...

Turnabout is fair play.  We've all seen any number of cases where the defendant pleads guilty, with the prosecutor recommending a sentence of X years, then the judge imposes a sentence of X+Y years; the defendant appeals, only to be told that a recommendation is just that.  The reverse happens in the 10th District's decision in State v. Blake, where the defendant pleads to tampering, with an agreed recommended sentence of four years.  The judge instead grants community control sanctions.  The State goes ballistic, claiming that the defendant breached the agreement by asking for probation, and filing a motion to proceed to trial on the counts that had been nollied in return for the plea.  The appellate panel finds that the defendant's request for leniency "did not constitute a material breach of contract," and upholds the trial court's decision.  The opinion's an interesting read, especially for the apparent anger of the prosecution over the whole thing; at one point, the prosecutor "threatened to 'never do another joint recommendation in this courtroom.'"


Recent Entries

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    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
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  • 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