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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

The only decision from the US Supreme Court last week was US v. Hall, which presented an issue of whether... oh, something about bankruptcy and tax law.  If you came here expecting to read something about bankruptcy or tax law, let alone both, it is my sad duty to disappoint you.  Back in the heyday of the "legal clinic" craze, a couple of other guys and I went into something like that, and I had some exposure to bankruptcy law.  Not much, but enough to know that I'd clean toilets before doing that for a living.  I'd already made the same decision with regard to tax law, and have since added domestic and personal injury to the list.  But at least I'll occasionally talk about cases involving the latter two.  Bankruptcy and tax law, no.

With only five weeks left to go in the current term, and 25 argued cases yet to be decided, the pace of decisions can be expected to pick up.  The big talk about SCOTUS revolved around an article in the New Yorker by Jeffrey Rosen about the Court's 2010 decision in Citizens United, which undid about a hundred years of precedent by holding that corporations were "people" within the meaning of the First Amendment, and thus were able to freely contribute to political campaigns.  Rosen's piece, taken from his upcoming book on the Court, argued that Chief Justice Roberts could have based the 5-4 decision on narrow statutory grounds, but instead chose to go with a much broader interpretation.  Who knows where the truth lies, but the effects of the decision are on vivid display this election cycle, with "Super PACs" spending ungodly sums of money to tell us just how loathsome the current candidates are.  The most recent effort in this regard was by Joe Ricketts, a billionaire who owns the Chicago Cubs among other things, and who was willing to invest a large sum of money in ads resurrecting the brouhaha about Obama and the Reverend Jeremiah Wright, only to back down this week when Mitt Romney criticized the move.  The present state of our electoral system is no better demonstrated than a memo to Ricketts proposing the ads and expressing frustration that voters "still aren't ready to hate this president."  Well, then, there's work to be done; can't have an election where both sides aren't satisfied to merely dispute their opponents' proposal, but must subject him to complete vilification as well.

Nothing new from the Ohio Supreme Court, although there are some oral arguments scheduled and some new cases accepted, and I still haven't done that post about the court's handling of the GPS cases.  Maybe I'll bundle that all together in a post or two this week.

In the courts of appeals...

In State v. Caudill, the defendant complains that his convictions for aggravated assault and domestic violence should have merged.  The 2nd District rejects the State's argument that separate convictions could be supported by the defendant's having grabbed and tried to stuff a scarf down her throat, and then pushed her down on the bed and held a pillow over her face; the court found this "blow-by-blow" analysis was rejected by State v. Johnson.  The court nevertheless dismissed the appeal because Caudill had already served the sentence for misdemeanor domestic violence -- it was run concurrently to the one year he got for the aggravated assault -- and the 2nd found he couldn't establish a collateral disability.  The interesting thing was that even the State had argued against mooting the appeal...

Novel Arguments:  In State v. Metz, the prosecution failed to disclose certain items, including a 911 tape, in discovery; as a sanction, the trial court excluded the evidence.  Metz was convicted anyway, and now claims that "the state's failure to produce the evidence in a timely fashion deprived him of the ability to negotiate a favorable plea agreement instead of taking the case to trial," but the 1st District rejects that and affirms the conviction... In State v. Washington, the 9th District concludes that failure to comply (the old fleeing and eluding statute) and obstructing official business were allied offenses committed by the same act:  trying to evade the police... Excellent analysis and summary of the law regarding what a trial court must do to obtain a valid waiver of counsel to allow the defendant to represent himself in a felony case in the 5th District's decision in State v. Morrison...

Still looking for the "real killer."  Give Larry Gray credit for perseverance.  A couple months after his 2008 conviction for aggravated murder was affirmed, he filed a motion for new trial, which included an affidavit from Brian Donan, a fellow inmate, who confessed to being the actual shooter.  The trial court denied the motion, and instead of appealing, Gray filed another motion for new trial, this time based on the affidavit of Danuielle Love, who'd testified against Gray at his trial.  She now claimed that it was her boyfriend who'd fired the fatal shot.  What about Donan?  The allegation that he was the perpetrator was complicated by the fact that he was in prison at the time of the killing, so Gray's attorney withdrew that affidavit.  The reliance upon Love proved problematic, too:  after she was advised at the hearing that she would be committing perjury if she contradicted her trial testimony, she took the stand and testified that although the signature on the affidavit was hers, she'd never seen the affidavit before, and reiterated her trial testimony identifying Gray as the shooter.  The State also introduced evidence that the person who'd notarized the affidavit wasn't a notary at the time due to a forgery conviction.  In State v. Gray, the 8th District affirms the denial of the motion.

Tastes great!  No, it's less filling!  In State v. Kareski, the defendant, a bartender, was being prosecuted for serving a Bud Lite to an underage person.  The trial court took judicial notice that Bud Lite is "beer," within the meaning of the statute, which defines beer as a beverage brewed from malt products and containing "one-half of one percent or more, but not more than twelve per cent, of alcohol by volume."  The 9th reversed, finding that while "it is generally known throughout the trial court's territorial jurisdiction that Bud Lite is beer, within the common, everyday understanding of that term, we cannot agree that it is generally known whether it contains between one-half of one percent and twelve percent alcohol by volume," and that the judge was wrong in taking judicial notice of that.  The judge wouldn't have been wrong in taking judicial notice of a lot of things about Bud Lite, such as the Uncylopedia's suggestion that it's "often confused with bat urine."


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