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Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Case Update

We don't need to check out SCOTUSblog to be told that "oral argument in the health care cases continues to dominate coverage."  In fact, if you wanted to check out SCOTUSblog during the week, you might not have been able to:  the blog got 800,000 hits in that time, more in three days than in the entire first four years of its existence.  The Court's going to rule on it, probably by June 28; the argument on Monday, on whether the Court had to defer ruling on it until the tax mandate took effect in 2014, found none of the justices disposed to do so.  As to what the ruling will be, the smart money has the Court not only striking down the mandate, but tossing out the rest of the law as well.  For no particular reason I can explain, I'm taking the under.

One other decision did come out of the Court:  it agreed to hear a case on whether a dog alert gives probable cause for a search.  I'll have more on that later this week.

The only significant decision from the Ohio Supreme Court was State ex rel. McNea v. Industrial Commission, which involved the issue of whether an employee, a policeman, was entitled to temporary total disability compensation, which is intended to pay the employee for the time that he was unable to work as a result of his injury.  The question here was whether the employee was capable of sustained remunerative employment, and the court unanimously held that he was, by virtue of the fact that he was selling drugs during the time he was off work.  One of the lawyers in my office handled the employee's appeal, and he'd come up with some good arguments, but arguments, we agreed, that were not good enough to elicit approval of the premise that a police officer should be allowed to collect unemployment compensation while he's engaged in drug trafficking.  Sometimes, it doesn't really matter what the law is, it's what it should be.

In the courts of appeals...

Two "timing" cases from the 8th District.  In State v. Hammed, suburban police had arrested the defendant for both misdemeanor and felony drug charges, and he pled out in municipal court to the misdemeanor.  A year later, the state indicted him on the felony charges.  But by that time speedy trial time had run, says the court, since the felony charges were still pending... And in Cleveland v. Matthews, the police issued a warrant for Matthews in 2008, but didn't get around to serving it until three years later.  Too bad, says the court; the statute of limitiations must be commenced within two years of the offense for a misdemeanor, and it's not "commenced" if "reasonable diligence" isn't used in serving the summons... The 9th District holds in State v. Davis that defendant wasn't entitled to an instruction on voluntary manslaughter where he was convicted of felony murder, because voluntary manslaughter isn't an inferior degree of felony murder... In State v. Henderson, the 6th District holds that showing a single photograph to a witness isn't suggestive where the witness is acquainted with the suspect.  The opinion also contains a hilarious recounting of the "cautionary drama involving dog and man amid the urban milieu"; check out paragraphs 5 through 16...

A defendant isn't entitled to have her arrest records sealed when she receives a governor's pardon, the 9th District holds in State v. Boykin; while there is judicial authority to grant expungement in exceptional cases, in the vast majority of situations the power to grant expungement is limited to the authority conveyed by statute... In State v. Nixon, the 12th District finds that a domestic violence victim's statement to the police fell within the "excited utterance" exception to the hearsay rule; notably absent from the opinion, and apparently from the appellant's brief, is any mention of whether the statements were testimonial under Crawford v. Washington.  Remember, just because a statement falls within a hearsay exception doesn't mean it survives a Crawford analysis, and just because it's an excited utterance doesn't mean it falls within the "emergency" analysis in post-Crawford decisions...

Good decision from the 9th in State v. Clapper, a search and seizure case, where the police officer had approached a parked vehicle in a rest stop.  The court holds that it wasn't a consensual encounter because the officer had his overhead lights on and demanded to see the license and registration, that there was no reasonable suspicion of criminal activity, and there was no legitimate concern for the driver's safety sufficient to bring into play the "community care-taking/emergency aid" exception to the warrant requirement, as the Supreme Court did last month in State v. Dunn (discussed here)... In State v. Henderson, the 11th District holds that a conviction for improper handling of a firearm doesn't violate the right to bear arms.  The decision produces three opinions, one concurring in judgment only and one dissent, so it's not of any precedential value, but the analysis is excellent.


Recent Entries

  • September 12, 2017
    What's Up in the 8th
    Prior consistent statements, whether State v. Hand is applied retroactively, and a big Coming Attraction
  • September 11, 2017
    Case Update
    Looking back at Melendez-Diaz, and the 8th goes 0 for 2 in the Supreme Court
  • September 8, 2017
    Friday Roundup
    Pro bono work, screwed-up appeals, and is Subway shorting their customers?
  • September 5, 2017
    What's Up in the 8th
    The barriers to expungement, jury verdict forms, and hybrid representation
  • August 31, 2017
    Constructive possession
    Constructive possession is 9/10ths of the law
  • August 29, 2017
    What's Up in the 8th
    A traffic stop found Samson Primm in possession of a few grams of marijuana, but he hires a lawyer and files a motion to suppress the stop. On the day of trial, the City asks to dismiss the case. Primm...
  • August 28, 2017
    Truth in plea bargaining
    So I got a brochure last week from Judge Donnelly over at the Common Pleas court. As you can see, it's a panel discussion on plea bargaining. The judge asked me to get out the word, so I just sort...
  • August 15, 2017
    Summer Break
    Got a bunch of stuff to do over the next couple weeks, and with the slowdown in the courts, it's a good time to take a break. I'll be back here on August 28. See you then....
  • August 11, 2017
    Friday Musings
    Drug trafficking, ADA lawsuit abuse, and e-filing
  • August 10, 2017
    Case Update
    Waiting on SCOTUS; two Ohio Supreme Court decisions