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Case Update

No decisions of particular note from SCOTUS, with all eyes focused on the 4½ hours the Court's scheduled for next week's oral arguments in the Health Care Reform cases.  The dog-bites-man story for the week is a poll from Bloomberg which breathlessly relates that three-quarters of the public believes that the Court's decision will be influenced by politics.  The fact that most people will view that cynically is unfortunate, and a reflection of the commonly-held misperception that any issue of constitutional interpretation contains only a single kernel of truth, and justices should be able to ferret it out without allowing their own political beliefs to enter the picture.  This is nonsense, of course.  There are legitimate schools of thought for various interpretive methods, but they all share one thing:  the lack of empirical proof that they're correct.  The Framers gave no more thought to how health care could be affected by the Interstate Commerce Clause than they did to how parabolic microphones and infrared imaging would be treated by the Fourth Amendment.  People who hold the political view that smaller government is better will view the issue differently from those who don't, and the only thing that should surprise us is that if someone would manage to become sufficiently versed in Constitutional law as to merit appointment to the High Court, without ever developing an ideological viewpoint on the role of government.

The big argument this week, though, is whether a state can impose a sentence of life without parole on a juvenile in a homicide case.  I'll have something on that later this week.

Down in Columbus, the big decision was State v. DunnPolice had received a phone call that Dunn was going to commit suicide, spotted his car, and stopped it.  When they removed him from the vehicle, he blurted out that there was a gun in the glove compartment.  Sixteen months later, the prosecution got around to charging him with improper handling of a firearm.  Dunn sought to suppress the stop, and the 2nd District reversed the trial court's denial of the motion.  Twelve years earlier, in Maumee v. Weisner, the Ohio Supreme Court had held that where the police stop a vehicle based solely on a dispatch, the state had to demonstrate at the suppression hearing that the facts precipitating the dispatch justified a reasonable suspicion of criminal activity.  The 2nd District had found fatal the failure of the State to call the dispatcher at the suppression hearing, or present any evidence regarding the call, but the Supreme Court reverses, finding that Maumee is confined to situations involving an investigative stop under Terry, while this case involved a stop under the emergency aid exception to the warrant requirement.

One searches the opinion in vain for any discussion of why the Maumee rule should be limited to Terry stops; the rationale for the rule is to keep the police from stopping people based on anonymous phone calls having no basis, and it's not readily apparent why that wouldn't apply to Dunn's situation.  The court seems more intent on applauding the police -- rightly so -- for their actions, noting darkly that "if the police had not acted, and Dunn had harmed or killed himself, Dunn or his estate could have filed a civil lawsuit against the police for failure to respond to an emergency."  Not without running the risk of sanctions for filing a frivolous lawsuit:  back in 1988, the court firmly rejected the notion that police officers could be civilly sued for failing to respond to an emergency.

There was one more notable Supreme Court decision, in a disciplinary case, and I'll take a quick look at that after we check out what's happened in the courts of appeals over the past two weeks...

In State v. Jones, the defendant is charged with felony murder, the predicate offense being felonious assault on the same victim.  He's convicted of the felony murder, but acquitted of the felonious assault, and the trial judge gives him a new trial on the basis of inconsistency in the verdicts.  Not so, says the 8th District, reversing; way back in 1932, the US Supreme Court held that there's no problem with inconsistent verdicts between different counts, because it could be the result of compromise or lenity on the part of the jury... Trial court acted properly in excluding defendant from courtroom during first day of trial after he conducted himself in such a hostile manner that his own attorney asked for him to be removed, the 5th District says in State v. France... It was a Crawford violation to allow the State to have a state trooper testify as to the urine results, rather than the toxicologist or lab technician who performed the test, the 4th District holds in State v. Ellis, but finds the error harmless...

The vagaries of allied offense law:  In State v. Mobley, the defendant went to his wife's house, fired a shot through the door when she didn't answer, forced his way into the house, and shot her at point-blank range.  The 5th District affirms the trial court's determination that all of these were separate acts, and thus separate convictions for discharging a firearm into a habitation, aggravated burglary, and attempted aggravated murder didn't merge.  In State v. James, though, the 5th holds that the trial court should have merged the burglary and theft convictions, where defendant had broken into the victim's garage to steal items inside.  So if the defendant breaking into a garage to steal items was a single act in James, couldn't the defendant breaking into the house to shoot the wife be a single act in Mobley?...  And in State v. Davic, the 10th District holds that alternating between cunnilingus and digital penetration created separate acts sufficient to warrant separate convictions for rape...

If you ask attorneys who've dealt with Cleveland divorce lawyers Joe and Vince Stafford, you're not going to get a lot of heart-warming testimonials.  The duo has terrorized the domestic relations bar for decades, practicing in a manner which indicates they learned more from studying the Battle of Stalingrad than they did any texts on family law.  And more than a few of their opponents will tell you that the brothers didn't exactly set the standard for ethical conduct.

That caught up with Vince Stafford last year, resulting in one-year suspension, and a couple weeks back it was Joe's turn, and in Disciplinary Counsel v. Stafford,  the court meted out the same punishment.  The main issue revolved around Stafford's obtaining leave to file amended pleadings on three separate occasions, all of them claiming merely to add new defendants, when in fact it was a subterfuge to allow Stafford to file an answer to a counterclaim that the defendant husband had asserted to years earlier, and that Stafford had failed to timely answer.  What the court found astonishing was that on each occasion the leave had been granted ex parte.  Stafford argued that "his filing of ex parte motions was simply the way people practice in that county's domestic-relations court." 

That claim caught the special attention of Justice O'Donnell,  who sat on the common pleas and appellate court benches here.  His concurring opinion quotes at length from the oral argument, where Stafford's lawyer forcefully argued the "everybody does it" defense, and finds "disturbing" the "cavalier attitude toward ex parte communication evidenced by counsel's colloquy with a member of this court and the incredible representation that thousands of lawyers do the same thing."  O'Donnell cites the judicial conduct rules on ex parte communications, and pointedly mentions that "We have disciplined judges for participating in unauthorized ex parte communications in several instances."  So for those of you still practicing divorce law in this county, my guess is that ex parte motions are going to be treated a bit more warily in the future.

And that might not be the least of it.  The opinion also mentions in passing that the judge filed an entry in April 2007 that had been signed in October 2005, and that the husband's original certificate of service in the answer and counterclaim had "disappeared" from the files of the clerk of courts.

Like the sergeant in Hill Street Blues used to say, "Be careful out there."

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