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Case Update

The big news from DC was the crowds beginning to line up for the showing of The Hunger Games -- whoops, no, they were lining up for the oral arguments, some as early as Friday morning, for the oral arguments today in the Supreme Court on the constitutionality of the Affordable Care Act.  This morning, the Court will hear 90 minutes of argument on whether it can even review the key issue, the "individual mandate" requiring everyone to purchase health insurance.  The provision doesn't take effect until 2014, which raises the question of whether anyone has standing to contest it until then.  The mandate itself is the subject of two hours of argument on Tuesday, and on Wednesday, another ninety minutes are scheduled for the issue of severability -- that is, can the Act survive if the Court strikes down the mandate?  A rare afternoon session is scheduled that day for the final ninety minutes of argument, this time over the Act's provisions expanding the scope of Medicaid services that have to be provided by the states.

It's hard to overstate the constitutional and political ramifications of the Court's decision, expected by the end of its term in June.  It's certainly the most important decision on the balance between the federal and state governments since the New Deal, and a decision striking down the law could take that issue out of the presidential election, while a decision upholding it could make that the central issue in the election.  It continues to fascinate me that in a democracy, decisions of that magnitude are made by the least democratic branch of government.

Emphasizing the importance the Court plays, it handed down two decisions last week that could have momentous effects on the way criminal law is practiced, specifically on ineffective assistance of counsel with respect to plea bargaining.  We'll discuss those in more detail on Wednesday and Thursday.

In Columbus, the only criminal decision of note was State v. Qualls.  Back when I started this blog, and for several years thereafter, the law on post-release controls was a quagmire.  The simplest mistake -- the judge telling a defendant that he faced "up to three years" of post-release control, instead of a mandatory three -- rendered the judgment void, requiring a de novo resentencing, with defendants being transported back from prisons just days before their release so that the purely ministerial function of advising them of PRC could be done properly.  Finally, in State v. Fischer (discussed here), the court was faced with the logical consequence of the argument that failure to properly impose PRC rendered the judgment void:  a void judgment, Fischer argued, rendered any appeal a nullity, so after he was resentenced to include PRC, he was entitled to a brand new appeal, in which he could avoid the res judicata effects of the previous one.  The court blinked, declaring that PRC improprieties rendered only that portion of the judgment void.  That made things better, but still led to resentencings, so in Qualls the court decides that the problem can be rectified by a simple nunc pro tunc entry.  Trial judges in Ohio rejoice.

Let's see what the appellate judges in Ohio have been doing...

An excellent 4th Amendment decision from the 2nd District in State v. Richardson, in which the court finds that an affidavit did not provide sufficient probable cause to allow the issuance of a warrant.  The case is necessarily fact-specific, but of special note is the court's determination that it will not apply the good-faith exception to save the warrant if the trial court didn't address it below; instead, the case is reversed, and remanded for consideration of that issue.  If the trial court finds that the exception applies, it can re-enter the conviction and sentences, and if not, it can order suppression... A forfeiture specification is not necessary to allow forfeiture of $11,000 in a drug case, the 9th District rules in State v. Bonner... A statement by the victim in an attempted murder case that "if I die, [defendant] shot me" isn't a dying declaration -- that exception to the hearsay rule is only available in a homicide trial -- but can come in as an excited utterance, the 8th District holds in State v. Ward...

Good look at allied ofenses in the 7th District's decision in State v. HelmsThe defendant shot the victim, pushed the car to a more secluded location and rummaged through it, then threatened to shoot the victim again, but was interrupted by a passerby.  The court holds that the convictions for felonious assault and attempted murder don't merge, since there were two separate attempts to shoot the victim, and there was sufficient movement of the car to separate out the robbery from the kidnapping... But in State v. VanValkenburg, the 5th District finds that, where a defendant used a crowbar to break into a store, the offenses of breaking and entering and possession of criminal tools merged... In State v. Allen, the 8th District holds that a trial court need not consider the defendant's ability to pay restitution where the defendant stipulates to the amount and agrees to pay it as part of the plea, and in State v. Ward holds that the trial court need not engage in any analysis to determine whether offenses were allied when the defense stipulates that they aren't as part of the plea bargain...

A sad, and cautionary, tale in disciplinary cases this week in Disciplinary Counsel v. Summers, where the attorney receives a six month actual suspension, the court finding that he charged an excessive fee.  There's more to it than that -- there almost always is -- but I know Bill Summers, and if you're ever charged with a crime, you couldn't hope for a more determined and forceful advocate.  It's sad to see a man of that caliber, with an unblemished record of 41 years, lose his ticket for six months.  But Bill can be stubborn and can strike others as abrasive, and the cautionary part here is that if the ethics people come calling and think you should give some money back to a client, just give the money back.  Word.

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