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Case Update

Nothing from Columbus, or DC; in fact, there'll be nothing from the latter until the Court commences its next term in October.  I'll have a preview of the upcoming cases before that, including the big one on whether police need a warrant to place a GPS device on a car.  In the meantime, in rereading some of the cases from last term, I came across an addition to my collection of Favorite Scalia Lines.  He can go over the top a lot of times, especially in dissent, but then there's this footnote to the decision in Brown v. EMA, striking down on First Amendment grounds California's law against selling violent video games to minors:

One study, for example, found that children who had just finished playing violent video games were more likely to fill in the blank letter in 'explo_e' with a 'd' (so that it reads 'explode') than with an 'r' ('explore'). The prevention of this phenomenon, which might have been anticipated with common sense, is not a compelling state interest.

On to the courts of appeals, which unlike their betters, have been busy...

There's a popular conception that a jury waiver has to be journalized before the trial begins.  Not so, says the 6th District in State v. Evangelista, and several other cases, including this one from the 8th, have agreed:  under 2945.05 the waiver has to occur before trial and has to be filed, time-stamped, and contained in the record, but there is no requirement that the waiver be filed and placed in the record before trial... In State v. Hipshire, the 2nd District holds that reckless homicide is a lesser included offense of involuntary manslaughter... The 8th District clarifies the child endangering statute in State v. Mabrey.  Division (A) (violation of a duty of care) involves an act of omission, while (B) involves an act of commission, and requires proof of an affirmative act of abuse... The trial court should have merged the convictions for rape and abduction as allied offenses, the 12th District holds in State v. Hernandez...

In State v. Darby, the 10th District rejects the claim that the trial judge should have instructed the jury on the Castle Doctrine; the defendant shot the victim from her porch, while the victim was, at most, standing on the sidewalk in front of the defendant's house.  Making the argument even more problematic for the defense was the fact that after the victim had been shot in the stomach and leg, and was trying to get away, the defendant shot her again in the back... You're not in Texas anymore, Dorothy:  While attempting to reconcile with his separated spouse, the defendant finds a condom wrapper in her bathroom trash, confronts her about her adultery, and kills her; in State v. Terrion, the 9th District holds that adultery is not sufficient provocation to warrant on instruction on inferior offense of voluntary manslaughter... In State v. Smith, the 10th District holds that a 4-year delay in sentencing after the case was reversed for resentencing was constitutionally unreasonable, and vacates the sentence...

Franks hearings.  In Franks v. Delaware, the Supreme Court held that knowing falsity in a search warrant affidavit could void the warrant, but laid down strict requirements for establishing that.  In State v. Dibble, the 10th District does an excellent job of laying out those requirements, and affirms a grant of a suppression motion, finding that the police officer's description of a party as a "victim" was false, when there was no reason to believe that the "victim" had indeed been the subject of any crime, and the officer did not describe her as that in any of the other forms he filled out in connection with his investigation.

Speedy justice.  The opinion in the 6th District's Evangelista decision, regarding the filing of jury waivers, notes that the "proceedings commenced at 9:24 AM."  By 10:36 AM, one hour and twelve minutes later, the trial court had "engaged in a thorough colloquy with Evangelista concerning his right to a jury trial," obtained a waiver, heard all the evidence, and rendered a verdict.

Solving a puzzle.  In State v. Turic, the 2nd District reviews the prosecutor's attempt to explain reasonable doubt during voir dire by analogizing it "to a jigsaw puzzle of the Mona Lisa that would be recognized before every piece was in place."  The court then reviewed similar attempts in other cases:

See, e.g., People v. Katzenberger (2009), 178 Cal.App.4th 1260 (where attorney used power point demonstration consisting of an eight-piece jigsaw puzzle of the Statue of Liberty and argued that the jury needed only six pieces to be convinced beyond a reasonable doubt that the picture was the iconic image); United States v. Pungitore (C.A.3, 1990), 910 F.2d 1084 (where both the prosecutor and defense counsel analogized the case to a jigsaw puzzle but disagreed about how many pieces would have to be missing in order for reasonable doubt to exist or not exist).


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