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Case Update

Only one decision from SCOTUS this week in the criminal arena, Wood v. Milyard, involving a habeas case.  Prior to 1996, there was no time limit for filing a habeas action.  In that year, though, Congress passed the AEDPA -- Anti-terrorist and Effective Death Penalty Act -- mainly out of a desire to greatly restrict the use of the writ.  There are innumerable times when legislation has not achieved the sought-after results, but this wasn't one of them:  strict time limitations, obsequious deference to state court determinations, and a rigorous standard for reversal of those determinations -- only when they clearly ran counter to Supreme Court decisions -- reduced the Great Writ to a mockery; one recent study found that in nearly 3,000 non-capital cases, a defendant successfully sought habeas relief in seven.  Wood's petition was untimely, but the state indicated it would not challenge that issue.  The district court denied the petition, but on appeal, the 10th Circuit never reached the merits, deciding instead that the petition was time-barred.  In unanimously reversing, the Supreme Court rejects Wood's argument that a court of appeals can never raise a timeliness argument sua sponte, but should use its discretion to do so sparingly.  SCOTUSblog has a more extended analysis of the decision, which you can read here, but you should be warned that even they conclude that "this case will be remembered, if at all, as the least important case on the Court's docket this year."

Sometimes the important decisions a court makes don't wind up as opinions, and that may be true for the Ohio Supreme Court last week.  There wasn't a single opinion issued since the court's decision in State v. Davis on the 17th of this month, and that one, as I discussed here, was inconsequential, concerned as it was with a criminal statute that's since been amended.  But last Wednesday the court had oral argument in State v. Brunning, involving the question of whether Megan's Law offenders can be prosecuted for notification and registration violations under the AWA.  As I mentioned, the argument didn't go well for the defense, and that opinion was buttressed late Friday afternoon, when the court issued a terse order canceling oral arguments in the other two cases which raise different facets of the same issue.  We'll see what happens in Brunning, but I'm guessing it's going to happen sooner rather than later.

Slow week in the courts of appeals, too...

Whether a juvenile court properly determined to bind over a juvenile for trial as an adult is reviewed for abuse of discretion, not sufficiency of the evidence, the 6th District notes in State v. Morgan... Any denial of the right to allocution at a resentencing hearing to impose post-release control is necessarily harmless, the 2nd District says in State v. Carr, since the trial court has no power to change the sentence... In State v. Goings, the trial court suppressed a statement made to a social worker by the alleged victim of a gross sexual imposition.  The state appeals, claiming that the statement should have come in under EvidR 803(4), statements made for medical diagnosis and treatment, but the 3rd District affirms, noting that there was no ongoing emergency, the worker took no steps to alert medical authorities, and instead called the police; thus, she was acting as an agent of the police, and the statement was thus testimonial.  Excellent treatment of Crawford... In State v. Rybak, the 11th District rejects the defendant's claim that he's entitled to expunge an attempted aggravated assault conviction because, at the time he entered his plea to that offense, it was expungeable.  The statutory law at the time of the filing of the motion for expungement is controlling, the court says...

Nice OVI case from the 6th District.  An officer stopped the defendant for a broken headlight, at which point he asked to exit the vehicle, did so, went to the front, and struck the headlight with his hand, making it operational.  He then returned to the vehicle, and the officer continued to talk to him, noticing that he had a "slight odor" of alcohol, that he had "bloodshot, glassy eyes," and that he appeared "anxious."  The officer had the defendant exit the vehicle and asked him to perform field sobriety tests; she determined that he failed to perform them sufficiently, and arrested him for OVI.  In State v. Stricklin, the 6th District reverses, finding that the slight odor and the bloodshot eyes weren't a sufficient basis to warrant the administration of field sobriety tests.

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