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Case Update

With the grant of cert last week in the case involving the Texas redistricting, the Court is now poised to issue decisions on three issues -- the others being the Arizona immigration law and Obama's health care reform -- that could have a major impact on the elections next year.  Somewhat interesting that the least democratic branch of our government would have an impact on the two which are.  The Court issued one opinion last week, in Judalong v. Holder, holding that the government's application of its "comparable ground" rule under Section 212(c) for immigrants sought to be deported for crimes committed prior to 1996 was arbitrary and capricious.  No, I don't know what that means, either, because I have as much understanding of immigration law as I do of string theory.  If your thirst for knowledge remains unsated by the preceding couple of sentences -- and I can't imagine how it couldn't be -- this post from SCOTUSblog might help.  Or not.

Judalong was only the second full decision issued this year, but the Court's also meted out four summary reversals, all on habeas corpus cases, the latest being Hardy v. Cross, in which the Court stressed again the "highly obsequious deferential standard" Federal courts are to use in weighing state court decisions.

Down in Columbus, heated denials that the Supreme Court has been disbanded.  There's certainly the possibility that the court will do a repeat of last year, when the week after Christmas saw major decisions handed down on consecutive sentences, post-release control, and allied offenses.  Hey, it could happen.

Let's see what's happening in the courts of appeals...

In State v. Bankston, the trial judge had allowed the State to play some 40 minutes of two jailhouse phone recordings between the defendant and his mother, supposedly to refresh her recollection, and between defendant and the victim, supposedly to impeach him.  The 2nd District reverses, finding the whole thing unfairly prejudicial.  A document shouldn't be read aloud to refresh a witness' collection, and the same should apply to an audio recording -- the witness should listen out of hearing of the jury.  Any impeachment material was minor in comparison to what the jury was allowed to hear... In State v. Smith, the 8th District reverses defendant's trafficking conviction, engaging in an extensive discussion of when a fact-finder can infer that drugs were prepared for distribution and sale.  A largely unnecessary one; Smith had only three rocks, and no other indicia of trafficking, such as scales or wrapping materials... The 2nd District holds in State v. Fairman that, under the facts of the case, felonious assault and weapons under disability merge as allied offenses...

An incarcerated defendant seeking to invoke his right to speedy trial under RC 2941.401 need only "substantially comply" with the statute's requirements, but that does mean he has to serve the demand upon both the court and the prosecutor, the 8th District holds in State v. McDuffie... The dismissal of an indictment without prejudice is not a final appealable order, says the 9th District in State v. Williams... In State v. Dodson, the defendant was convicted of trafficking and possession of marijuana, was given community control sanctions, and then violated them, resulting in a 3-year prison sentence.  He argues that the convictions should have merged as allied offenses, but the 12th District says it's too late for that claim; it could and should have been raised on appeal from the original sentence...

Bad decision from the 6th District in State v. Oehler.  The trial court had determined that defendant's convictions of involuntary manslaughter and two counts of endangering children weren't allied, asked the defense if it had any comment, at which point the defense counsel said that was "consistent with my research."  The 6th holds first that any error was waived, and secondly that because defense counsel "expressed agreement with the trial court's conclusion. . . pursuant to the invited error doctrine any error the trial court may have made in failing to merge the convictions was induced by appellant."  This is wrong on both counts.  Failure to object doesn't waive the error, it only makes it reviewable for plain error, and the Ohio Supreme Court has held that failure to merge allied offenses is plain error.  And invited error means more than just agreeing with the court:  it means inviting or inducing the court to make the error -- if the judge gives the jury instruction you proposed, you can't claim that it was a bad one.  Merely saying you agree with the court isn't inviting the error.  What's especially unsettling about the case is that it was decided a month before State v. Johnson, which held that felony murder and child endangerment should have merged.

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