Lewis Katz was my criminal procedure professor in law school, and Burt Griffin was a judge up here that I knew quite well.  Both are great guys, and very smart people, too.  They both participated in the commission that drafted the sentencing reforms in SB 2 in 1995, and after that was passed, they had a pretty nice gig going, doing seminars on how sentencing worked under the new law, and also writing a comprehensive two-volume manual on the subject.  That all came crashing down when the Supreme Court decided State v. Foster in 2006, striking down much of the law.

Well, it may be time for Lew and Burt to get together for another road trip, because HB 86 revived the statutes pertaining to consecutive sentences, and it’s a brand new world out there. (keep reading…)

It was the best of opinions, it was the worst of opinions…  Well, now you know what it would be like if Charles Dickens had decided to become a lawyer instead of devoting his life to describing human depravity and suffering on a scale I haven’t seen since the last time I went over to the Justice Center.

Actually, there weren’t any “worst of” opinions; there were some good and bad, but generally the court continued its fine work on several issues, like the 4th Amendment and registration and notification prosecutions of sex offenders, and expanded that into other areas, especially the use of 404(B) evidence, where it turned out some of the most thoughtful decisions to come down anywhere in quite a while. (keep reading…)

Chapter 1:  The Comma is Your Friend

The comma is a perfectly acceptable form of punctuation.  As far as I know, there’s no shortage of them.  But the Ohio legislature’s decision not to insert one into 2929.13(B)(1)(a)(i)  could have some significant repercussions.

Hey, look, I feel your pain: anytime I read a paragraph which refers to the sub-sub-sub-section of a legislative provision, my eyes glaze over. But stick with me for a minute.  (keep reading…)

I’m going to do something a little different from what I’ve done in past years.  I always do a recap of the U.S. Supreme Court’s decisions when the term ends in June of each year, but I’ve never done anything like that for state cases.  That’s what I’m going to do now.  I’m going to give you the good and the bad — we’ll stay away from the ugly — but I’ll concentrate on the ones that you should be aware of if you’re a criminal defense attorney.  So let’s get started. (keep reading…)

The judge has carefully questioned each juror during voir dire:  “You’re willing, Mr. Jones, to follow the law as I give it to you?”  After all, it’s a marijuana trafficking case — nine dime bags — and jurors might not have regarded that as being among the more serious offenses.  (Which is what happened a few years back in State v. Williams, where the 8th District affirmed the trial judge’s declaration of a mistrial and the empaneling of a new jury because the original venire “wasn’t taking marijuana seriously enough”; the opinion noted that two of the jurors expressed the view that marijuana should be legal, and ”fellow prospective jurors were openly laughing between themselves at the prospect of serving on the case.”)  The prosecutor, of course, has followed up on that:  “So, Ms. Polanski, you understand that if I prove to you that the defendant is guilty beyond a reasonable doubt, you have to return a verdict of guilty, even though you may disagree with the law that he’s charged with violating?”  All of the jurors solemnly nod their heads in agreement with this.

So everybody’s pretty much surprised when you stand up and tell the jury, “What the judge and the prosecutor just told you is bullshit.  If you don’t think that the law is proper, you have the complete right and power to acquit my client.”  (keep reading…)

I used to say that while the 8th District was the best court in the state, if not the country, on 4th Amendment issues, its work on hearsay issues was, shall we say, less than stellar.  My advice was that if you were charged with a crime up here, don’t worry about what the police found, because that would get thrown out, but everything anybody ever said about you or the crime would come in.  After the decision last week in State v. Clark, I might have to reassess that view. (keep reading…)

Whatever Christmas you had was probably better than James Ingram’s.  He was convicted of stealing $11,000 from his grandmother, based on the fact that (A) he knew where grandma kept the money, and had a key to her house, (B) there was no sign of break-in when the grandmother found money missing, (C) shortly after the money went missing, Ingram opened an account with a deposit of $9,900, despite (D) never having held a job, as best anyone can figure.  He appeals, claiming that the verdict of not guilty of burglary was inconsistent with the finding of guilty of theft.  It’s not, and it wouldn’t really matter if it were; as the court explains in State v. Ingram, the law on that is that an inconsistency in a verdict does not arise out of inconsistent responses to different counts, but only arises out of inconsistent responses to the same count.  That happens from time to time, I suppose, although offhand I can’t remember the last time it did.

(keep reading…)

Okay, I lied.  No pictures.  Just hard-hitting analysis of the major decisions of the Ohio Supreme Court over the past three weeks.

Of which there was exactly one, State v. Carlisle, which merits discussion.  Oh, the things we learn.  I’d always thought that a judge had the ability to modify her sentence up until the time the defendant was shipped off to prison.  So did Jack Carlisle; he was out on bond from his three-year sentence while he appealed his kidnapping conviction, but when that was affirmed, he persuaded the judge to change the sentence to community control sanctions because of his serious health problems, which included required dialysis three times a week.  There are indeed cases which support Carlisle’s argument, but they were based on a statute that’s since been repealed.  I didn’t get the memo, but neither did anyone else:  neither the appellate court nor the litigants picked up on it.  Bottom line:  a felony sentence is final upon the issuance of the final order.

One other decision of note to those thinking of running for office.  In In re Judicial Complaint, a commission of five judges sanctions attorney Mark Davis for judicial campaign literature boasting that he had obtained “six college degrees in seven years,” three times the actual number he’d earned.  Left unexplained in the opinion is why Davis thought that claiming to have six college degrees would impress an electorate which, given the current climate of anti-intellectualism, looks askance at candidates who are polysyllabic.

In D.C., the Court’s been out of session a week longer than I was, and oral arguments don’t resume until next Monday.  The highlight will probably be FCC v. ABC Television, which features another go-around on the FCC’s “indecency” policy, this one posing the question of whether ABC could be fined for an NYPD Blue episode in which a woman’s naked buttocks, and the outline of her naked breast, were shown.  As Elmer Fudd said in Apocalypse Now, “the howuh… the howuh…”

Speaking of horrors, my BFF Lexis informs me that Ohio’s appellate courts were not taking time off, churning out some 270 decisions, so let’s take a look… (keep reading…)