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Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Case Update

The most important case for the US Supreme Court came from the 11th Circuit last week; in a 2-1 vote, they struck down the individual mandate in the Affordable Care Act, the health reform bill passed last year. Given the 6th Circuit's earlier affirmance of the bill, by the same 2-1 vote, unless the 11th would grant en banc review and reverse the panel, this creates the split in the circuits which virtually mandates Supreme Court review. (A decision is also pending in the 4th Circuit.)  You can wade through all 304 pages of the 11th Circuit's opinion here, or a short synopsis of the opinion here.  Notably, the court did uphold the remaining portions of the bill, reversing the district court's decision in that regard, but the distinction might not mean much.  The individual mandate, which requires individuals to purchase health insurance, is an integral part of the bill: much of the rest of it imposes substantial new, and costly, requirements on insurance companies: elimination of lifetime caps and exclusions for pre-existing conditions, and a broadening of covered conditions. Contrary to public  perception, many of the uninsured are not too poor to afford it, they're mostly young and too healthy to think they need it. Without bringing those people into the insurance pool, for which insurance companies will get premiums with little occasion for payout, the whole scheme collapses. In any event, should the Court take the case, anticipate a decision in late June of next year, just before the presidential  conventions.

SCOTUSBlog has also come out with its annual Statpack for the 2010 term, where you find how rookie Justice Elena Kagan did with

runners in scoring position and two out -- oops, no, it doesn't tell us that, but it does inform us that the Court handed down 75 signed opinions, granted summary reversals in five more cases, and affirmed two by 4-4 votes because of the recusal of Kagan. We also find that Scalia was by far the most vocal in oral argument, asking an average of 25.8 questions; Kagan, befitting the "seen but not heard" rule for newbies on the Court, asked the fewest (10.6) besides Thomas, who asked none. I'll have more little bits of trivia like this during the upcoming Case Updates until the Court's term begins in October, so stay tuned, especially if you want to win some bar bets.

Nothing going on down in Columbus, so let's head over to the courts of appeals...

A judgment of conviction must included disposition of the forfeiture specifications, says the 8th District in State v. Jones.  And an entry which reads, "Defendant to forfeit to the State: All weapons involved in this case" doesn't cut it, where there's nothing in the record to indicate which weapons were involved. That's not a final order, so the appeal is dismissed... In State v. Smith and State v. Jones, the 9th and 2nd Districts, respectively, uphold the judge's reading a portion of the testimony at trial to the jury, at their request; the decision to do so is within the discretion of the trial court... Defendant arrested for three counts of OVI on September 23, state dismissed OVI per se charge that day, gets test results back on November 15 that defendant had prohibited amounts of marijuana in system, charges him with that on December 9; in State v. McKinney, 5th District holds that speedy trial on latter OVI charge did not begin to run until time of charge, not time of arrest... In State v. Powell, the 12th District notes that the section on restitution permits admission of "estimates or receipts indicating the cost of repairing or replacing property," but does not require the preparer of the estimate to be present at a hearing on restitution...

The 8th reverses a sentencing in State v. King, because the trial judge imposed court costs in the entry, but not at the sentencing hearing; a trial judge has to impose costs in the hearing, so as to give the defendant an opportunity to seek waiver of the costs... Reach out and touch someone: in State v. Tyler, the defendant's phone call to the victim from jail is allowed into evidence, over objections that it wasn't authenticated; the 4th District affirms, noting that the standard for authentication is quite low -- "the proponent must present foundational evidence that is sufficient to constitute a rational basis for a jury to decide that the primary evidence is what its proponent claims it to be"... In State v. Bello, the defendant, on appeal from the imposition of a prison sentence for violating community control sanctions, asserts that his original plea was invalid. Can't do that, says the 8th District: the time for appealing that issue was 30 days after the original sentence was imposed, not 30 days after the defendant was sentenced for violating sanctions...

One more tidbit from the StatPack.  Of the 79 decisions reached by the Court, there were 22 affirmances and 57 reversals.  By far the biggest number of cases was from the 9th Circuit -- 26 cases, of which 19 were reversed (2 of the affirmances were by 4-4 votes).


Recent Entries

  • July 24, 2017
    What's Up in the 8th
    Some things we knew, some things we didn't
  • July 21, 2017
    Friday Roundup
    Computers and sex offenders, civil forfeiture, and phrases that should be put out to pasture
  • July 20, 2017
    Case Update
    A look at the Ohio Supreme Court's decision in State v. Oles, and did you know that Justice Ginsburg has a .311 batting average with runners in scoring position? Oh, wait...
  • July 18, 2017
    What's Up in the 8th
    Judicial bias, RVO specs, 26(B) stuff, waivers of counsel... And more!
  • July 17, 2017
    No more Anders Briefs?
    I have a case now in the 8th District where I came close to filing an Anders brief the other week. It's an appeal from a plea and sentence. The plea hearing was flawless. The judge imposed consecutive sentences, and...
  • July 13, 2017
    Sex offenders and the First Amendment
    Analysis of the Supreme Court's decision in Packingham v. North Carolina
  • July 12, 2017
    Removing a retained attorney
    What does a judge do if he thinks a retained attorney in a criminal case isn't competent?
  • July 11, 2017
    What's Up in the 8th
    The court does good work on a juvenile bindover case, and the State finally figures out that it should have indicted someone in the first place
  • July 10, 2017
    Case Update
    SCOTUS ends its term; the Ohio Supreme Court issues another opinion, and likely the last one, on the trial tax
  • June 28, 2017
    Plea Bargaining -- The defendant's view
    A look at the Supreme Court's decision last week in Lee v. United States