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Case Update

Several decisions from SCOTUS this past week, the key one being the 5-4 decision in Florence v. Bd. of Freeholders, upholding the right of the police to strip-search incoming jail inmates, even those arrested for minor offenses.  We'll talk about that one later this week.  Another was Rehberg v. Paulk, which held that witnesses who testify before a grand jury are entitled to absolute immunity from civil suit, just like witnesses at a trial, instead of qualified immunity, as some circuits had held.  Finally, the Court addressed the vagaries of immigration law in Vartelas v. HolderVartelas, a lawful permanent resident since 1989, had been convicted as a minor participant in a counterfeiting scheme in 1994.  He left for a week-long trip in 2003 to Greece to visit his ailing parents, but was denied re-admission on the basis of more restrictive immigration laws passed in 1996.  The 2nd Circuit upheld the denial and ordered Vartelas returned to Greece.

In a 6-3 decision, the Court reversed, holding that the statute couldn't be applied retroactively.  Back in Padilla v. Kentucky, the Court had detailed how immigration law had become much more restrictive since the country's founding, and especially since 9/11.  In Padilla and subsequent decisions, the Court seems to have shown some sympathy toward immigrants and some discomfort with the harshness of the law.  We'll get another chance to see whether that holds true next term:  last week, the Court granted cert in a case in which it will decide whether possession of marijuana with intent to distribute is an aggravated felony under immigration law, which can result in deportation.

The Ohio Supreme Court was busy, too, handing down several decisions, including In re C.P., which we discussed on Friday, finding that lifetime sexual offender registration for juveniles was cruel and unusual punishment.  A decision of import in the civil arena was Schwering v. TRWSchwering had sued Ford and TRW for an auto accident that had killed his wife, claiming that the seat-belt design in the vehicle created an unsafe condition.  The trial went off the rails, with the defense claiming that Schwering's expert had given testimony inconsistent with his report; the court ultimately granted a mistrial and set the case again.  Instead, Schwering filed a notice of voluntary dismissal and filed suit in Federal court.

CivR 41(A)(1)(a) allows a plaintiff to dismiss his complaint any time before trial by filing a notice.  "Any time before trial" means exactly that; I've seen cases where the plaintiff's attorney, on his way over to the courtroom on the day of trial, stops by the clerk's office and files the notice of dismissal.  The question in Schwering was whether the declaration of the mistrial wiped the slate clean because the trial became a nullity, or whether it constituted a "trial" which precluded Schwering from filing a notice of dismissal.  The court comes down on the side of the latter view.  If I did more civil work here, I'd go into more detail about it; suffice it to say that the basis for the decision is more a policy concern about the abuses of voluntary dismissal than a rigorous legal analysis.

In the courts of appeals...

In State v. Perry, the 6th District holds that in cases involving multiple sexual offenses, the trial court should impose a sex offender classification on each of them, rather than impose one classification based on the highest offense level... Picky picky picky:  In State v. Bittner, the defense claims that the court's advisement during the plea that he was giving up his right ""to have your lawyer cross examine each and every witness that will be called by the State of Ohio" didn't satisfy the rule's requirement that defendant be advised he is giving up right "to confront witnesses against him or her."  There are plenty of cases saying that telling defendant he has right to cross-examine witnesses is sufficient to inform him of his right to confrontation , and now  the 8th District adds one more... All in the family:  in State v. Evans, the defendant is convicted of three murder-for-hire conspiracies, two involving his wife, and the third his son.  He went 1 for 3; only the second, against his wife, was successful.  The 4th District affirms the convictions, but holds that six counts involving the wife -- aggravated murder, complicity to commit aggravated murder, murder, complicity to commit murder, aggravated robbery, and aggravated burglary -- all merge... In State v. Drummond, the 3rd District rejects the contention that counsel was ineffective because he asked too few questions on voir dire, saying that's a matter of trial strategy and tactics...

The trial court should have merged the theft and possession of criminal tools charges where the defendant used the tools to remove an air conditioning, the 12th District says in State v. Simmonds... Telling a defendant that he's eligible for community control sanctions when he's facing mandatory time invalidates the plea, the 2nd District says in State v. Balidbid.  Who knew?  Just about everybody but the trial judge, apparently... In State v. Jones, the 12th District holds that submission of a certified copy of  a journal entry indicating that "Matthew L. Jones" was convicted of domestic violence is not sufficient to show that the Matthew L. Jones on trial was the same one as in the entry... Rare reversal of a trial court's denial of a motion to withdraw a plea in the 11th District's decision in State v. Tate; victim gave a new statement indicating defendant wasn't the shooter, and factors of prejudice and timing weighed in defendant's favor... Bullshit Traffic Stop of the Week™:  in State v. Fredo, the 7th District affirms the denial of a motion to suppress based upon the stop of a vehicle for improper display of the license plate.  The law requires it to be displayed on the front and rear of the vehicle, which, the 7th determines, means the exterior; placement in the rear window isn't sufficient...

A fascinating case out of the 2nd District in State v. SlagleSlagle, a lawyer, was charged with stealing some $700,000 from his firm.  The case was tried to the bench, but before rendering his verdict, the judge died.  Slagle wanted to have a new judge decide the case based upon viewing the video-audiotape of the trial, but the prosecution balked, and so Slagle trotted off to Federal court, where a judge granted a habeas petition requiring the State to do what Slagle requested.  That judge found Slagle guilty, whereupon he appealed, claiming that reviewing the trial court erred in rendering a verdict based upon viewing the tape.  The 2nd District agreed that it was a bad way of doing things, but that Slagle was estopped to complain about it, since it was his idea.  As for his claim that the trial court's sentence -- four years, out of a possible five -- was excessive, the court finds this argument "borders on the ludicrous."

Finally, for those of you who've decided to forego air travel rather than face the hassles of getting through security, an enjoyable read comes from the District Court decision in US v. $35,131The latter is the amount TSA agents foisted from Kyle and Berekti Jones, who were flying to Ethiopia with their infant daughter for a two-month visit with family.  The seizure was based upon the alleged failure of the Jones' to declare the cash they were carrying, but the judge finds this to be hogwash, in an opinion dripping with contempt for the agency, as indicated by this paragraph:

A "case agent" sat with the government's counsel. He knew nothing.  His sole contribution had been to enter data into a computer; he could not have assisted the United States attorney.  In addition to overreaching the people whom they are to serve, three officers wasted one-half day watching four others embarrass themselves.

Something to take along to read on your next flight.


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