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Case Update

Summertime, and the bloggin' ain't easy...  Especially since the Supreme Court's not in session, and its Ohio counterpart isn't exactly working overtime to fill the lacuna.  To be sure, there was one decision from the latter court last week, State v. Short.   Short had threatened his wife that he would kill her if she ever left thim, then when she did, made good on his threat, also dispatching a male friend of hers in the process.  Most of the appeal centers on Short's buyer's remorse for having waived his right to present mitigation evidence during the penalty phase.  Although there's no constitutional requirement that a defendant's waiver of this be formalized, there is under Ohio law:  in State v. Ashworth, the Supreme Court held that when a defendant wishes to waive the presentation of all mitigating evidence, "a trial court must conduct an inquiry of the defendant on the record to determine whether the waiver is knowing and voluntary."  As in virtually everything in life, there's a catch:  it must be all mitigating evidence.  Here, the defense had cross-examined witnesses during the guilt phase to show that Short was emotionally distressed both by his wife's departure and his response to that.  That, the court decides, is mitigation.

Speaking of the other white meat -- er, Supreme Court -- I'll have a summary of their last term on Wednesday, and on Thursday I'll have a discussion of just how far you can take the allied offense jurisprudence in the wake of December's decision in State v. Johnson.  Tomorrow, of course, will feature the weekly roundup of the 8th District's decisions.  Now, on to the courts of appeals...

Defendant shoots two people, killing one.  Think the firearms specs merge?  Think again:  as the 2nd District notes in State v. Beatty-Jones, the specifications merge if they're attached to felonies committed in the same "transaction."  The 2nd holds that multiple victims means separate transactions.  A better argument, and one they also note, and which the prosecutor didn't even raise, is that the statute requires a trial court to impose separate specs in at least two of the charges when they're homicide, attempted murder, aggravated robbery, rape, or felonious assault, and may impose an additional term for each of the remaining specs... Good discussion from the 8th District on the standards to be used in determining whether a defendant is a "mentally ill person subject to hopsitalization by court order" following a finding of not guilty by reason of insanity in State v. Santana...

More post-release control follies:  in State v. Spence, the defendant is sentenced to three consecutive terms of life in prison without parole for aggravated murder.  Nonetheless, the 10th District determines that the trial court erred in failing to impose the five years of PRC he'll have to do on the kidnapping, aggravated burglary, and aggravated robbery convictions when he gets out of prison, which, as the court acknowledges, is never.  The 10th remands it for a new sentencing hearing at which PRC is to be imposed, and the sad thing is that they're right... In State v. Johnson, the 9th District holds that the defendant's convictions for child endangering must be reduced from 2nd degree felonies to misdemeanors because the jury verdict forms did not include the offense level or a finding of the aggravating element; it also spends a lot of time on the issue of prosecutorial misconduct (see below)... Where a written waiver of speedy trial is unlimited in duration, it becomes effective from the date of the defendant's arrest, and if the defendant doesn't file a written objection and demand for trial, the waiver continues through the date of trial, says the 9th District in State v. Peek...

Bullshit non-traffic stop of the week.  In State v. Simmons, a police officer stops the defendant for jay-walking and "conducted a pat-down for weapons."  When the defendant could't provide identification, the officer placed him the back of the police cruiser.  The officer subsequently found two syringes there, and the 2nd District rejects Simmons' argument that his attorney was ineffective for failing to file a motion to suppress.

Slapping wrists.  In State v. Johnson, the court devotes 31 of the opinion's 84 paragraphs to the numerous instances of prosecutorial misconduct, and concludes that "the prosecutor was argumentative, asked improper questions, made testimonial assertions, referred to facts that were not in the record, misrepresented the evidence, and expressed his personal opinion of Mr. Johnson's credibility."  So what does it do?  Nothing:

We conclude, however, that because the jury would have found Mr. Johnson guilty of felonious assault and child endangering even if the prosecutor had acted properly, Mr. Johnson has not established that the prosecutor's improper conduct deprived him of a fair trial."

It did throw in the comment from an 8th District case that "if we are to stop short of punishing the State for a prosecutor's misbehavior by refusing to overturn otherwise valid convictions, perhaps such cases should routinely be referred to disciplinary counsel so that individual prosecutors can be impressed with the need for ethical behavior."  Yeah, that'll put the fear of God into them, as you can tell from what happened after the last time a prosecutor was disciplined for misconduct during a trial, which was.... well, never.

This wasn't an isolated instance of misconduct:  it permeated the entire trial, witness after witness.  I don't know if it affected the outcome of the trial, but this sort of thing simply can't be tolerated.  If a court's really interested in stopping this, I guarantee you that one reversal will accomplish what a lot of admonitions have not.

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