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Case Update

In France, they essentially shut down the country in August; everybody goes on vacation.  I've often thought we should do something like that here, except make it in December.  Well, no, not everybody going on vacation; we certainly need store clerks.  But court clerks?  Not so much.  Few trial courts schedule much of anything the last two weeks of the month, and the appellate courts start winding down, too.

Take the Robed Ones down on the Potomac, for example.  No decisions, and they finish the year this week, with six oral arguments and a final conference on Friday.  Three of those arguments involve criminal issues, although the first, Messerschmitt v. Millender, is a civil case, involving the question of qualified immunity in suits against police officers for searches that go awry.  Basically, the Court has applied the good-faith exception for searches conducted with a warrant, and have held that an officer cannot be sued unless the affidavit used to obtain the warrant is "so lacking in indicia of probable cause as to render belief in its existence entirely unreasonable."  Some commentators have noted that this means "all but the plainly incompetent or those who knowingly violate the law" will be granted qualified immunity, a rule that some wags have called "the Barney Fife exception" to the Fourth Amendment.  The argument on Tuesday in Martel v. Clair will focus on when a death row inmate is entitled to new court-appointed counsel, but the big case will be the one before that:  in Williams v. Illinois, the Court will consider whether there's a Crawford violation when one witness testifies about the results of DNA testing performed by a different analyst.  We'll talk about that on Thursday.

I guess I really shouldn't get on the Ohio Supreme Court's case as to declining output in December.  Last year, they came out with Hodge, Fischer, and Johnson in the last week.  Maybe that will happen again this year.

Maybe not, and until it does, I'm left looking at the appellate cases.  And there's not a whole lot of action there....

Getting a court of appeals to reverse a trial judge's denial of a motion to withdraw a guilty plea has always been a daunting task, and a couple of decisions from the 8th District don't make it any easier.  In State v. Pitra and State v. Harris, the court holds that a judge can consider the fact that the plea was entered very close to or on the day of trial as an additional reason to deny it.  As if an additional reason was needed... No argument here:  in State v. Huber, the 2nd District holds that drug possession charges involving different drugs don't merge as allied offenses... The appropriate remedy for breach of a plea agreement by a prosecutor -- the State had agreed to remain silent at sentencing, but the prosecutor instead argued that the defendant committed "the worst form of the offense," and the judge imposed maximum, consecutive sentences -- is to have the defendant resentenced before a different judge, the 2nd District says in State v. Wilson... A remand for selection of which allied offense the State wishes to have the defendant sentenced on does not permit the trial court to grant a motion to vacate the guilty plea, the 3rd District reaffirms in State v. Carter...

Appellate porn.  Rape and gross sexual imposition pose particular problems in allied offense analysis; is the fondling of other sexual areas, contemporaneous with actual sexual conduct, a "single" act?  The 2nd District takes a comprehensive look at that in State v. McNew, and concludes that, on the record presented, defense counsel wasn't ineffective for failing to raise the issue.  The court notes, though, that these inquiries are "very fact-sensitive," and helpfully suggests that "as a general matter, kissing or

licking an erogenous zone is less likely to be incidental to rape than touching, which might serve the dual purpose of restraining the victim.

Good writing.  After my posts on Thursday and Friday about good opinion writing, I came across the 8th's decision in Grey v. Walgreen.  The case considers the question, intriguing to criminal defense lawyers, of whether a statute -- in this case, one prohibiting a health care provider from charging excessive fees in workers comp cases -- creates a private right of action, allowing somebody to sue.  Ohio courts have generally relied on the 1975 US Supreme Court decision in Cort v. Ash, which created a three-part test for determining that question.  The 8th, though, notes that there is serious question as to whether Cort is still good law, pointing to several subsequent SCOTUS decisions which focus solely on the question of whether Congress clearly expressed an intent to provide a private right of action.  Grey points to a 2001 Supreme Court decision where the Court "reaffirmed its focus on legislative intent, stating that "having sworn off the habit of venturing beyond Congress' intent, we will not accept respondent's invitation to have one last drink.'"

That's good.

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