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Case Update

Further oral arguments in SCOTUS will have to await the ringing in of the New Year -- January 9, to be specific -- but while that means there are 28 more shopping days until we get to see Scalia and Breyer verbally jousting, with Thomas sitting mutely by, it doesn't mean the Court's out of session.  (And by using the phrase "shopping days," I certainly date myself to a time when there was actually a distinction between "shopping days" and "days" until Christmas, well before Thanksgiving would end with masses assembled around Target and Best Buy, like the angered villagers around Dr. Frankenstein's castle, and to like mind and effect.)  On the docket that week is yet another case concerning the FCC's indecency policy, this time involving an NYPD Blue episode in 2003, which earned numerous network affiliates a $27,500 fine for a scene which displayed "a small portion" of a woman's breast, with "her buttocks visible from the side."  The Commission decided, in its wisdom, that this constituted a "depiction of sexual or excretory organs," but the circuit court decided that the Commission's policy was so damned vague and stupid it couldn't be enforced.  The Supreme Court will decide who's right.  The Court is expected to issue one or more opinions today, and to announce whether it will accept the case involving Arizona's immigration law.  (UPDATE:  the Court did agree to hear the Arizona case.)

The only decision handed down by the Ohio Supreme Court this week also did not pertain to criminal law, but to medical malpractice.  Since this blog is primarily directed at criminal lawyers, and the number of those who also handle med mal cases is approximately the same as the number who moonlight as porn stars, I'll keep it brief.  In White v. Leimbach, the court held that, in case alleging that a doctor did not give the patient sufficient information to allow the patient to give informed consent to the medical procedure, the plaintiff must provide expert testimony to establish that the undisclosed risk actually materialized and caused the injury.  So there.  Now go on with your bad self, while I go on to the courts of appeals...

In State v. Armstrong, the 1st District concludes that there was no error in allowing a 7-year-old rape victim to testify via closed-captioned television outside the defendant's present where there was evidence to support the trial court's decision that testifying in person would likely cause the victim serious emotional trauma.  The court also holds that the age of the victim -- under 10, which permits a sentence of life without parole -- was not a specification that required a separate finding by the jury... A patio is not a porch, the 6th District holds in State v. Clark, and thus the "castle doctrine" doesn't apply; the court also holds that the prosecution's decision not to call the doctor who treated the victim's knife wounds did not entitle the defense to a "missing witness" instruction... In State v. Searles, the 8th District reminds everybody that back in 2000, the legislature passed a law prohibiting the argument that the defendant's voluntary intoxication rendered him incapable of forming the necessary intent to commit the crime... Nice opinion from the 6th District in State v. Abubakar on the factors to be used in determining whether a defendant is acting in loco parentis for purposes of the child endangering statute... The 1st District finds nothing wrong with placement of a GPS device on defendant's truck in State v. Winningham, although the US Supreme Court's likely to come to a different conclusion, based on an oral argument in a GPS case a month ago, which I discussed here...

In State v. Hunter, the 2nd District confronts the question of the legality of a warrantless entry into a home based on an anonymous 911 call that someone inside the home was being held hostage.  The court concludes that an anonymous call requires "some corroboration, but not much"; here, corroboration was provided by the occupants ignoring the officers, then after finally answering the door, immediately attempting to close it.  The court reverses and remands for a further hearing on the motion to suppress, though, finding that the police exceeded the scope of their search for the supposed hostage by looking between the mattress and box spring of a bed, and finding a gun instead... In State v. Orr, the 8th District holds that a trial court need only impose one period of post-release control -- the longest in that case -- rather than a period of PRC for each offense; the 2nd District comes to the same conclusion in State v. Kidd, which involved identical periods of PRC... The 9th District tosses a traffic stop in State v. Maitland, holding that the anonymous caller's provision of the license plate of a car wasn't evidence of the reliability of the caller's claim that the defendant was driving erratically...

More on retroactivity and sex offenders.  A puzzling outcome in the 8th District's decision in State v. ScottScott had been convicted of several counts of gross sexual imposition which had occurred in July and August of 2007.  The 8th had affirmed his convictions and Scott's classification as a Tier III offender under the Adam Walsh Act, but the Supreme Court accepted review on the issue of whether gross sexual imposition was a strict liability offense and whether the Adam Walsh Act could be applied to persons convicted of offenses committed prior to the AWA's effective date.  The Supreme Court actually decided another case on those issues, State v. Dunlap (discussed here), and remanded Scott for reconsideration in light of that decision and State v. Williams.

Williams, discussed here, had held that the AWA couldn't be applied retroactively, but the court in Scott finds no problem with Scott's classification, despite the fact that the AWA didn't take effect until January 1, 2008, over four months after Scott's crimes.  How did it arrive at that result?  It notes that the syllabus in Williams provides that the AWA can't be applied "to defendants who committed sex offenses prior to its enactment" -- the emphasis is the court's -- and concludes that since the AWA was enacted on June 27, 2007, Scott's classification under that statute was valid because his offenses "took place after the 'enactment'" of the AWA.

Expect a motion for reconsideration, and a different result.  The language in the Williams syllabus is a bit sloppy, but it's clear that the Supreme Court meant that the triggering date was the date the statute became effective, rather than the date it was passed by the legislature.  After all, Williams' offenses took place in November of 2007, after Scott's, and the Supreme Court concluded that the act couldn't be applied to him.

"And I was the only one with a unibrow, too."  In State v. Townsend, the defendant argues that the picture array used to identify him was suggestive because, among other things, "he is the only suspect in the array with 'bulging eyes.'"  The 6th District rejects this, finding that "of the men depicted, three have narrow eyes, one has eyes somewhat similar to appellant's, and the final man has eyes in between."


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