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Case Update

Most of the talk about SCOTUS last week centered on the oral argument in United States v. Alvarez, involving Alvarez's prosecution under the Stolen Valor Act, a law Congress passed in 2005 making it a crime to falsely claim that you've received a military commendation.  Alvarez, obviously subscribing to the theory, "go big or go home," told a meeting of his government agency in 2007 that he'd won the Congressional Medal of Honor, a neat trick considering he'd never served a day in the military.  Alvarez is hanging is hat on the notion that even false speech falls within the protections of the First Amendment, something the Court is probably reluctant to hold, but then again, criminalizing speech without proof that it does any harm -- as opposed to the situation with, for example, fraud -- might be a bridge too far.  The Court's been quite willing as of late to toss out laws that imposed any limits on speech; two years ago, they struck down a Federal law prohibiting animal cruelty videos, and last year California's law banning violent video games sales to minors got kicked to the curb.  There are some cases that go very far in defining what we mean by freedom of religion or the right to bear arms, and it looks like Alvarez might do the same for freedom of speech.

Another case, Blueford v. Arkansas, concerned double jeopardy, but with a set of facts that make a broadly applicable decision unlikely.  The foreman in Blueford's jury announced that the jury had acquitted Blueford of capital and first degree murder, but had deadlocked on the lesser charges.  The partial verdict was never recorded, and the arguments revolved around the oddities of Arkansas procedure and whether the announcement was entitled to any double jeopardy significance.  The only decision by the Court last week was Messerschmidt v. Millender, a §1983 suit involving the question police officers were entitled to qualified immunity on a search that went bad.  Although back in 2004 in Groh v. Ramirez, the Court held that a warrant was so "obviously deficient" that it could not save the officers from civil liability, they came to the opposite result in Messerschmidt, and the opinion and lineup of justices on this issue -- the opinion was 6-3, and only two justices fully dissented -- suggests that any plaintiff seeking to hold the police liable for a seach where they obtained a warrant is going to have an exceedingly hard road.

Down in Columbus, bad news for Beastie Boys fans, both of them, comes in State v. CarrickCarrick had a Halloween party in 2009, and, being the caring sort, decided to share by cranking up the bass so that it rattled the windows of his neighbors, a quarter mile away.  When two visits by the police didn't provide sufficient dissuasion, a third resulted in Carrick's arrest for disorderly conduct.  The court finds that the "making unreasonable noise" provision of the disorderly conduct statute is not void for vagueness, and upholds Carrick's conviction.  The opinion tells us that the neighbors could distinctly hear the songs that were being played, but doesn't tell us what they are.  Largely unnecessary; the likelihood that your neighbors will complain about your music geometrically increase if it's something by Megadeth or Twisted Sister, instead of "Layla" or "Stairway to Heaven."  If that's the case, while I'm certainly no fan of vigilantism, it might have been appropriate here.

Williams v. Ormsby won't supply the plotline for the next rom-com.  Williams and Ormsby have an off-again on-again relationship, the last episode of which features her moving back into his house with an agreement that she'd get half the house in the event of a split.  No one saw that split coming, of course, but when it did, the inevitable lawsuit wound up in the Supreme Court, which decided that the agreement was invalid because love and affection alone are insufficient consideration for a contract.  Good thing the court waited until the week after Valentine's Day to issue that opinion.

On to the courts of appeals...

In State v. Mitchell, the 8th District reaffirms its view, and that of several other districts, that if you're going to claim on appeal that the defendant's sentence was disproportionate, you've got to raise that argument and present some evidence of it in the trial court... If you do a lot of trial work in cases involving children, print out a copy State v. Kamera 6th District case affirming the trial judge's decision finding a 5-year-old competent.  The case includes a good discussion, with all the applicable law, of the factors for determining whether a child witness is competent to testify... "Shopkeeper's privilege" under RC 2935.041, which allows storeowner or employer to detain suspected shoplifter for "a reasonable time in a reasonable manner," controls the question of whether probable cause to detain existed, rather than the 4th Amendment, says the 8th District in State v. Calliens...

We didn't mean that delayed:  20-month lapse between conviction and defendant's filing a motion for delayed appeal showed that the defendant did not pursue the case with the necessary diligence, says the 11th District in State v. Lino, denying the motion...  Great case on the scope of consent searches in State v. Brooks, where the officer had searched Brooks' purse after obtaining consent to search her vehicle.  The 11th District affirms suppression, finding that the officer's general request to search the interior of the vehicle did not give rise to an implied consent to search the purse found on the seat... And a great case from the 12th District on waiver of counsel, the court holding in State v. Combs that when a defendant wants to proceed pro se, the trial court must determine that he understands the charges against him, the allowable punishments, and the possible defenses...

One big exception to the rule that a lower court has to follow the mandate of an appellate court is if there's an intervening decision by a superior court.  That's what happened in State v. GreenleafThe trial court had messed up post-release controls, and the 9th District had vacated the sentence and held that he was entitled to withdraw his guilty plea (the judge hadn't told him he was entitled to a jury trial), despite not having raised it in his previous appeals, because res judicata doesn't apply to a void judgment, and Greenleaf's was due to the PRC error.  Then along came the Supreme Court's decision in State v. Fischer, holding that PRC errors only rendered that portion of the sentence void, and the rest of it can stand.  The trial court reconsidered the State's argument on res judicata and denied the motion to withdraw the plea, and the 9th District affirms.

Be careful what you ask for.  In State v. Chapman, the defendant was convicted of murder and assorted other offenses, and sentenced to 30 years.  The sentence was reversed, and on remand, Chapman successfully moved for the judge to recuse himself.  The new judge gave him 33 years.  Too bad, says the 9th District; his argument that the trial court shouldn't have recused himself goes by the wayside on invited error grounds, and there's no presumption of vindictiveness where a different judge does the resentencing.

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