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Case Update

Ah, nothing like a new year.  Amazing how much everything changes just because a calendar page has flipped.  Now when I go to court, the other attorneys arrive right on time and the judge promptly takes the bench.  A few weeks ago I'd have five pretrials in a morning and walk out of the courthouse at noon having accomplished nothing other than rescheduling those five cases for a future pretrial.  Not anymore; now, those cases are quickly disposed of.  Best of all, of course, when I send out my billings, my clients eagerly pay the full amounts due within a week.

Sure that happens.

Well, at least the US Supreme Court starts the New Year with alacrity, issuing seven decisions.  We discussed one criminal decision, reversing a death penalty for failure of the prosecutor to provide Brady material, on Friday, and we'll discuss the other, involving eyewitness identification, on Thursday.  Another significant decision was a religious freedom case, Hosanna-Tabor Church v. EEOC, which held that the First Amendment bars suits brought by ministers for violation of employment discrimination laws.  Chief Justice Roberts' opinion was liberally -- assuming Roberts ever does anything liberally -- sprinkled with references to English law, such as the 1662 Act of Uniformity.  I'm guessing that the people who've raised an uproar in the past on the Court's use of "foreign law" -- so much so that some have proposed a constitutional amendment to ban the practice -- won't find this one bothersome.  Speaking of which, the 10th Circuit recently upheld a district court's injunction barring enforcement of an amendment to the Oklahoma constitution which bans courts from considering legal precepts of other nations and cultures, specifically citing sharia, or Islamic, law.  So I guess it's only a matter of time before the female denizens of Tulsa and Oklahoma City will be forced to wear burqas anytime they venture outside.

The Ohio Supreme Court also issued a number of opinions, several of them involving extraordinary writs, but if you came to this blog with the expectation of learning about a writ quo warranto, go back down the road about a mile and turn right instead of left.  Somewhat interesting was State ex rel. Engelhart v. Russo, which was related to the 8th District's decision two weeks ago in In re CarothersEngelhart arose out of a case in which the trial court granted a motion for summary judgment for the defendant, entering notice of it on the court's electronic docket, whereupon the plaintiff's lawyer rushed down and filed a voluntary dismissal, which was filed at 3:48 PM, 17 minutes before the clerk actually journalized the summary judgment decision.  The judge went bonkers, hitting the lawyer up for $1,200 in sanctions.  In Carothers, the court held that this was improper, because the time that the clerk filed the judge's entry, not the time she signed it, controlled, and since the voluntary dismissal was filed first, the court was divested of any further jurisdiction.  Oddly, a different panel of the 8th had come to a contrary conclusion back in May, denying writs of prohibition, but the Supreme Court comes to the same conclusion that the Carothers panel did, and reverses.  Several years back, when I was doing more civil stuff here, I opined that the voluntary dismissal rule might be changed to be similar to the Federal rule, which allows a judge to impose sanctions, like paying the cost of the attorney fees incurred in the previous proceeding, before a plaintiff can refile.  Yet another thing I was right about...

The courts of appeals are always right -- until, as the 8th found out, the Supreme Court says otherwise -- so let's take a look what happened there in the past two weeks...

Can a sex offender classified under Megan's law be prosecuted for failing to register, verify his address, or notify of a change of address?  No, the 8th District has said, and says so again last week in State v. Caldero:  since a Megan's Law offender can't be reclassified under the Adam Walsh Act, and the AWA now provides the penalties for failure to register, etc., a Megan's Law offender can't be prosecuted at all.  Yes, say the 5th and 1st Districts.  Yes, but only the Megan's Law penalties, not the stiffer AWA penalties, can be imposed, the 2nd District has said, and says so again this week in State v. Williams.  The whole mess is before the Supreme Court, so maybe it will all get sorted sometime this year... In State v. Adams, the defendant files a motion to correct an illegal sentence, claiming that the offenses to which he pled were allied and would've merged; the 5th District finds that res judicata bars the motion, since that claim could've been raised on appeal... In State v. Dukes, the victim had suffered a broken neck as a result of defendant's attack, and was placed on a ventilator; after three weeks, he decided to be taken off of it, and he died.  The 11th District rejects defendant's claim that the jury should have been instructed that the victim's decision could have been considered on independent, intervening cause of death...

A couple of good decisions on Miranda from the 2nd District.   State v. Cook contains a great discussion of the "ask first, Mirandize later" type of police interrogation.  Police arrested Cook and put her in the back of a cruiser, questioned her for five minutes without warnings, then took her back to the police station, where she was interrogated a half hour later, given warnings, and made a full confession.  Very good review of the law on this, which isn't terribly well defined... And in State v. Hoskins, the court affirms the grant of a motion to suppress where the police pulled occupants out of a stolen car and asked them "in a loud controlling voice," "do you have guns or knives on you?"  The court held that Hoskins was in custody, and thus Miranda warnings were required because the police should have anticipated that their questions were reasonably likely to elicit an incriminating response; the latter issue is one that is also not terribly well defined... The 12th District's decision in State v. Nelms teaches that if you're going to argue that the judge shouldn't have maxed your client out on a 5th degree felony theft charge, it's much better if your client doesn't have 43 prior misdemeanor and 14 prior felony convictions...

What's in a name?  In the 2nd District's decision in State v. Morris, we learn that the defendant's first name is D'alcapone.  The main issue in the trial, an appeal from Morris' conviction of murder and a bevy of other offenses, is whether the trial court should have excluded the testimony of a woman who said that Morris had told him that he was "born to kill."  Well, at least he didn't say he was "born to get away with just about everything, but then the Feds nab me for failing to pay income tax."


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    What's Up in the 8th
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    Friday Roundup
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