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Case Update

SCOTUS resumes oral arguments this week, but the big news on the Federal court front, at least here, was a district court judge's grant of a new trial motion in the case of Antun Lewis, who'd been convicted last year of the arson death of nine people, eight of them children, in a 2005 fire on Cleveland's east side.  The 95-page opinion, which you can read here, savages the prosecution's case, which was based almost entirely on the testimony of jailhouse snitches who claimed that Lewis had confessed to them.  Under Ohio law, a jury is advised to treat an accomplice's testimony with "grave suspicion."  Given that snitches are the leading cause of wrongful convictions in U.S. capital cases, according to a study done by Northwestern University, it is well past time to extend that same jury advisement to them.  One more thing about the case:  for those of you concerned about the "Federalization" of criminal law and wondering how this wound up in Federal, rather than state, court -- as a death penalty prosecution, no less (the judge had earlier determined that Lewis wasn't eligible for execution because he was mentally retarded) -- the government acquired jurisdiction over it because the person renting the house that was set on fire received a Section 8 subsidy, and prosecutors claimed this involved the house in interstate commerce.  Maybe we ought to pass a law about that sort of nonsense, too.

A couple of decisions from the Ohio Supreme Court this past week, on civil cases.  Sampson v. CMHA involved an intentional tort action by Sampson, an employee of CMHA who sued the agency for malicious prosecution.  The lower courts had rejected CMHA's claim of sovereign immunity, based on the provision of RC 2944.09(B) which allows suits by employees against a political subdivision if the suit arises out of the employment relationship.  CMHA made a clever argument:  in its earliest cases creating a right of an employee to sue an employer for intentional tort, the Supreme Court had held that such torts did not arise from the employment relationship.  The reason for that was clear:  if it did arise from the employment relationship, suit would be barred by the workers' compensation law.  Clever, but not clever enough; the court refuses to import the law from the intentional-tort cases into the law on sovereign immunity.  The only remaining question is whether the tort did indeed arise out of the employment relationship, and the court holds it did.

Tort reform has been an ongoing battle in Ohio for the past twenty years.  The first two efforts by the legislature in the 90's were rejected by the Supreme Court, but that was then and this is now.  The latest effort, in 2005, has been affirmed in its various particulars -- caps on damages, modifications to joint liability, major limitations on employer intentional torts -- by previous decisions.  (Arbino v. Johnson, the main one upholding the law, discussed here; Kaminski v. Wire Products, upholding restrictions on employer intentional torts, discussed here.)

The latest, Havel v. Villa St. Joseph, makes the victory of the tort reform proponents, mainly businesses and insurance companies, complete.  Part of the 2005 tort reform act required bifurcation of any claim for punitive damages.  For obvious reasons, plaintiffs liked the law and defendants did not:  a jury might be more generous with compensatory damages, and more likely to find against the defendant in the first place, if it heard evidence of the egregiousness of defendant's conduct.  With bifurcation, evidence of that conduct will be reserved for a second trial, if there is one.  The 8th District had held this was impermissible because it conflicted with CivR 42(B), which gives a trial court discretion on bifurcating damage claims; under Ohio law, if a statute conflicts with a rule, the rule governs.  But not if the statute creates a "substantive" right, and the Supreme Court holds that it did so here, looking to the uncodified language of the statute -- the sections that the legislature tacks on to the end of an act, declaring its intent.  The bottom line is that when a statute and a rule conflict, "the statute will prevail in matters of substantive law and the rule will prevail in matters of procedural law."

In the courts of appeals...

In State v. Blocker, the 2nd District reaffirms its holding that Adam Walsh Act penalties for failure to register, notify, or veryify cannot be applied to Megan's Law offenders... In State v. Kronenberg, the 8th District affirms a conviction for telephone harassment based on two calls, rejecting claim that small number isn't sufficient to prove the offense.  The statute "can, in some circumstances, be violated with a single telephone call that rises to the level of harassment, while under different circumstances, a number of telephone calls might not constitute the kind of abusive, threatening, or harassing behavior the statute is intended to prohibit"... In State v. Dewitt, the defendant was one of three charged with a home invasion which resulted in the death of the victim, and pled guilty various offenses with an agreed sentence of between 16 and 20 years.  One of the other defendants subsequently entered into a similar plea deal, but with an agreed sentence of 8-12 years.  When Dewitt was sentenced, he asked for the same deal his co-defendant got, and appealed when the judge refused.  Too bad, says the 2nd District; an agreed sentence isn't even reviewable on appeal...

In State v. Holmes, the 9th District reverses a conviction for felonious assault where the defendant represented himself, holding that there was no valid waiver of counsel because while the trial court had told the defendant of the charges and maximum penalties, it never advised him of possible defenses or mitigating circumstances... The trial court should have advised defendant of the effect of his guilty plea in a misdemeanor case, but in the absence of a claim of innocence or showing of prejudice, it's harmless error, says the 11th District in State v. Davis...

If at first you don't succeed.  The 2nd District reverses a trial court's ruling on a motion to suppress an identification in State v. Chaffin.  The victim had described the defendant as a bald-headed man.  The police showed him a photo spread of bald men, and after looking at it for 10 to 15 minutes, the victim picked out one of the photos.  The wrong one, it turned out.  So four days later, the cops called the victim back to take another look at a photo array, except in this one the defendant was the only bald guy in the array.  Too suggestive, the court says, and remands it back to the trial court for a determination of the second prong of the analysis, whether the unduly suggestive process rendered an in-court identification unreliable.

Trial practice tips.  In State v. Rodvold, the defendant argues that the trial court erred in failing to excuse a juror for cause.  The 6th District rejects that, noting that defense counsel used a peremptory on the juror, and thus Rodvold's argument is "effectively rendered moot."  The court's wrong, but the result is right, because the defense used only three of its four peremptories.  Using all four would have preserved the argument about the challenge for cause.

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