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Case Update

Just a month from now, the Supreme Court begins oral arguments for the 2011 Term.  I can only imagine your excitement.  One of the first ones will be a capital case, Maples v. Thomas.  The nominal issue is the habeas law concepts of procedural default; the real issue is whether a man should be put to death because his attorneys blew an appeal deadline.  A case the next day, Golan v. Holder, presents the issue of copyright law, including whether Section 514 of the Uruguay Round Agreements Act violate the First Amendment of the United States Constitution.  You can guess which one I'll be writing about.

The Robed Ones in Columbus get the jump on their Federal counterparts; after the summer hiatus, oral argument begins in Columbus this week.  The lead case, State v. Freeman, involves the "carbon copy" indictments common in child molestation cases.  There's an abundance of case law on this from the districts, and I've blogged about it on numerous occasions (here and here, among others), but this is the first time the Supreme Court's going to address the issue.  I'll have a recap of the oral argument later this week.  The big case, though, will be State v. Gould, in which the State is contending that there's a good faith exception to the exclusionary rule in warrantless searches.  It's based on what I consider a gross misreading of SCOTUS' decision a few years ago in Herring v. US.  I've blogged about that, too (here and here), so we'll have a followup post on the oral argument on that as well.

In the courts of appeals, they always have oral arguments, so let's see how those turned out...

In State v. Gresham, the defendant was sentenced in 2006, was brought back for resentencing in 2010 because of improper imposition of post-release controls, and contends that this violates CrimR 32(A), which requires that "a sentence shall be imposed without unnecessary delay."  This argument has been raised and rejected about 158 times, and the 8th District keeps that streak intact... In State v. Freeman, the 1st District holds that the defendant could be convicted and subject to the penalties of failure to register under the Adam Walsh Act, even though he was classifed as a sex offender under Megan's law.  In State v. Williams (discussed here), the Supreme Court had held that the AWA's registration requirements couldn't be imposed upon someone who committed his offense prior to the AWA's effective date, but the 1st District says that ruling doesn't apply to imposition of the more onerous penalties for failure to register or notify of change of address under the AWA.  The 8th District and several others have ruled to the contrary... Probation revocation hearings, and a hearing to determine whether defendant violated the terms of her intervention in lieu of conviction, are not criminal in nature, and the discovery provisions under CrimR 16 don't apply, the 5th District holds in State v. Burdette...

The 1st District, in State v. Buckner, holds that the trial court erred in imposing $25,000 in mandatory fines, because the defendant was clearly indigent:  he'd been in prison for 10 years, and had an income of $17 a month... The 5th District upholds a probation condition prohibiting defendant from having contact with his girlfriend and potential access to her minor daughter, where the defendant had been convicted of sexual battery involving minors, in State v. Griffeth... A task force is not a crime victim, and the trial court's order of $1,000 restitution to the task force was error, says the 3rd District in State v. Deitrich... A trial court can order restitution as part of a plan for intervention in lieu of conviction, the 12th District holds in State v. Welden... If you've got a domestic violence case involving a parent striking a child, take a look at the 3rd District's decision in State v. Luke, where it reverses the defendant's conviction of domestic violence for slapping his 15-year-old son, saying that the trial court didn't properly consider the merits of the parental discipline defense...

Knowing when to zip it.  In State v. Varholic, the defendant asks to reopen his appeal, claiming that his appellate lawyer should have argued that the  judge denied him his right to allocution by cutting him short at the sentencing hearing.  The panel rejects this, noting that "the trial judge does not have to indulge a defendant in venting his spleen, issuing a diatribe, explaining extraneous matters, or engaging in drivel."  To my great relief, nothing in the court's opinion appears to extend this limitation to lawyers.

Reason #114 why I stopped doing domestic relations work.  In Jones v. Jones, the husband appeals the denial of his petition for a domestic violence civil protection order against his wife, claiming that the trial court erred in refusing to let him call his 9- and 7-year old sons to testify about a fight they'd supposedly witnessed.  Oh, and to show you just how much fun handling these cases can be, the husband suspected his wife of having an affair, and when she returned from a trip, he stuffed her underwear into a bag and took it to his lawyer's office so it could be tested for semen.  I've had a lot of awkward and thoroughly regrettable conversations with clients, but none involved them saying, "Here's a bag with my wife's underwear.  Could you check and find out if there's any semen on it?"  And God willing and the creek don't rise, none ever will.


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