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Case Update

The big news on the SCOTUS front was the possibility that it will be reviewing the 9th Circuit's decision last week striking down Proposition 8, the California ballot initiative that had banned gay marriage.  Despite the common perception that the decision created a federal constitutional right for gays to marry, it didn't; it held that the ballot initiative was impermissibly discriminatory in that it had specifically targeted gays, relying primarily on the Supreme Court's 1996 decision in Romer v. Evans, which had used the same reasoning to strike down a Colorado constitutional amendment which barred laws protecting gays from employment discrimination.  Don't be surprised if the Supreme Court doesn't grant review:  Kennedy wrote the opinion in Romer, and also the opinion in Lawrence v. Texas, striking down Texas' sodomy laws, and the four conservatives on the Court, whatever their passion for slapping down the 9th Circuit, might decide that this isn't the hill they want to die on.  What's more, this isn't necessarily the last word from the 9th Circuit.  There was a vigorous dissent to the decision, and en banc review is quite possible.

The justices resume oral arguments on Tuesday, after the holiday, but get together this Friday for a conference to review pending cert petitions.  One of them is Chaidez v. United States, which raises the question of whether Padilla v. Kentucky should be applied retroactively.  Padilla (discussed here) held that an attorney had provided deficient performance by telling his client, a non-citizen, that he wouldn't be deported, when the law clearly mandated that he would be.  I really don't see the Court agreeing to hear this, and allowing anybody who was convicted before Padilla came out to now raise it.   Talk about opening the floodgates of litigation...

The floodgates of opinions down in Columbus remained firmly shut; nothing but Case Announcements, such as one denying a motion to supplement the record, or terminating probation in a disciplinary case, or -- and here's a biggie -- ordering counsel to "redact personal identifiers contained in the  attachments to relator's motion to hold respondent in contempt."  Then again, the Supreme Court has always (rightfully) regarded its job as clarifying the law, and maybe they've decided the law is clear enough for now.

The courts of appeals don't have that luxury, so let's take a look at what they've been doing.

In State v. Alexander, the 1st District rejects the claim that aggravated murder and aggravated robbery were allied offenses.  The defendant had threatened to kill the victim the night before, and then after doing so, went through his pockets.  The court held this was sufficient proof of a separate animus for the murder and the robbery... Chain of custody goes to weight of the evidence, not admissibility, the 2nd District reminds us in State v. Wiley... And the 8th District reminds us in State v. Waite that a trial court has no authority to entertain a motion to withdraw a plea once the case has been ruled upon by the appellate court, even if it's remanded for some other reason... Excellent discussion of 4th Amendment law on protective sweeps in the 2nd District's decision in State v. McLemore.  The defendant had come out of the house and been arrested for domestic violence after a two-hour standoff, and police immediately entered the home and searched it.  The 2nd agrees that there was no basis for a sweep, but the evidence comes in anyway, because the court concludes that the defendant's subsequent consent to the search was an independent source for the discovery...

When a case is remanded for proper application of post-release controls, the trial court doesn't have the authority to merge convictions as allied offenses, the 1st District says in State v. Truitt, and so does the 9th District in State v. O'Neal... The 12th District holds in State v. Collins that illegal manufacture of methampetamine and illegal assembly or possession of chemicals needed to make methamphetamine are allied offenses... In State v. Bennett, the 9th District rejects the state's argument that the new discovery rules doesn't require it to provide a witness list, as long as the names of the witnesses can be gleaned from the documents it provides.  Not so; the rule says witness lists have to be exchanged, so witness lists have to be exchanged... In State v. Troutman, the 3rd District holds that evidence should have been suppressed because a traffic stop was unduly extended for the arrival of a canine unit; the period from the stop to the arrival of the canine unit was approximately 21 minutes...

Quick work.  When the court wrote the opinion in the 1st District's decision in State v. Alexander, there must have been a car waiting outside with the motor running.  The case involves convictions for aggravated murder, murder, attempted murer, aggravated robbery, and firearms specifications, and a life without parole sentence (consecutive to 41 years on the other stuff), and the court's opinion dispenses with the eight assignments of error in a brisk twelve pages.  That's not to be critical:  it's good work, and right on the money in its disposition of the assignments.

Foreign law watch.  In State v. Bonness, which we'll talk about in detail on Wednesday, the 8th District held that a forty-year sentence for possession of child pornography was excessive.  Included in the opinion at footnote 7 was this:

We note with some interest that the child pornography laws in other countries are far less severe than in the United States. For example, a Canadian man in possession of the largest stash of child pornography ever found in that country -- more than 4.5 million pornographic images -- was sentenced to concurrent prison terms of five years for distribution, four and one half years. Interestingly, the Crown had only sought a prison term of five to seven years.

Somewhere, someone is reading this and thinking, "What's next?  They're going to cite Sharia law?"

To say "fucking," or to say "f******g," that is the question.  My BFF Lexis informs me that the word "fuck" or its various permutations occur in no fewer than 1,381 Ohio decisions.  (Yes, I ran a search on it.  And you people think I don't have a life.)  You won't find any more from the 2nd District; in State v. Kingery, the court cleans up the language in an ethnic intimidation case, noting in a footnote that it chose to insert asterisks into the offending words "because our opinions are widely available online."

Let me see if I understand this.  On an internet which, according to this site, 372 users are typing adult search terms into search engines every second, you're worried that somebody's going to bother reading a legal opinion just so they can see the word "fuck"?

By the way, the other thing I learned from this -- besides how many times the word "fuck" appears in Ohio decisions -- is that South Korea leads the universe in per capita revenue from pornography, at $526.76 per person.  The US checks in at a relatively miserly $44.67, behind even Brazil and the Czech Republic.  So much for American exceptionalism.


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