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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 vaguely related to criminal law from down Potomac way  was Reichle v. Howards, in which the Supreme Court unanimously held that in 2006 a person did not have a clear right not to be arrested for making anti-war remarks to Vice-President Cheney.  Okay, I said it was "vaguely related."  The real issue was whether the Secret Service agents had immunity from suit for arresting Howards; a federal agent or police officer has immunity from suit for violation of someone's civil rights if the right wasn't "clearly established" at the time.  Note that the decision in Reichle doesn't address, let alone decide, the question of whether a person does have a clear right not to be arrested for making remarks which might be protected by the First Amendment; it just said he didn't have that clear right in 2006.  Glad that's settled.

The only Ohio Supreme Court decision of note last week was State v. Morris, which I discussed last Thursday, and criticized for failing to delve more deeply into the question of why an abuse of discretion standard should be employed in reviewing claims of error in evidentiary rulings.  The need to do so was emphasized by a line from the 8th District's decision Thursday in State v. Banks, in which the court held that review for abuse of discretion of a trial judge's evidentiary rulings requires a showing "not only that error occurred, but also the existence of an abuse of discretion."  Really?  So a trial court has discretion to commit error?  If this is the law, it surely should not be.  It makes no sense to have evidentiary rules, and then allow a judge to ignore them, subject only to review to determine whether he was "unreasonable" in doing so.

Perhaps the only thing I hate about practicing law is chasing fees, so I can relate to Jim Hartke.  He'd represented a woman in a divorce action, who wound up owing him $5,000.  They agreed he'd accept one-half of the distribution she'd receive from her ex-husband's 401(k) plan as full satisfaction of the balance, and that the check from the plan would be made out to both of them.  The woman reneged, got the money, didn't pay Hartke, and disconnected her phone to keep him from contacting her.  He went nuclear, finally showing up at her apartment and telling her, in front of her six-year-old child, that if she didn't pay him he'd file a criminal complaint and she could be arrested, go to jail, and lose her kids.  That was a bit over the top for the court; they rejected the board's recommendation of a stayed suspension, so Hartke won't have to worry about collecting any fees for his legal representation for the next six months.

Let's take a look at what's going on in the courts of appeals...

In In re J.J., the 6th District rejects the argument that RC 2907.02(A)(1)(c), which prohibits a person from engaging in sexual conduct with another where the victim is substantially impaired, is unconstitutionally vague... In State v. Breneman, the 2nd District reverses the defendant's drug conviction, finding that the trial court abused its discretion in denying a continuance so that retained counsel could make an appearance.  The opinion contains an excellent discussion of the factors a trial court needs to consider in those situations.  The bottom line is that if retained counsel shows up on the day of trial, it's going to be a tough sell, but if he tries to enter an appearance before that, there's no substantial inconvenience to the parties, it's not a lengthy delay, and the defendant hasn't requested previous continuances, the 6th Amendment right to counsel of one's choice takes precedence...  A trial court's noting that the defendant had $123 on him at the time of his arrest and that he would be able to earn some money while in prison is not sufficient to show that the court considered his ability to pay a fine of $2,000, the 6th District says in State v. Miller...

In State v. Burns, the 2nd District considers the requirement for corroboration for conviction of sexual imposition.  Corroboration doesn't need to go to every substantial element of the crime charged, and "slight circumstances or evidence which tends to support the victim's testimony is satisfactory."   In Burns, the court concludes that photographs of scratches and a rug burn were sufficient to corroborate the victim's description of the defendant's attempted assault... Lengthy and good discussion of the right of police to do a "protective sweep" of the interior of a car after removing the occupants in the 10th District's decision in State v. Broughton; the sweep there was upheld because police had a reasonable suspicion that the car might contain a weapon, even though the driver was in the police cruiser at the time of the search... On an Anders brief, the 1st District in State v. Hodges finds a potential claim that convictions for felonious assault and improper discharge of a firearm should merge as allied offenses, and appoints new counsel to pursue the appeal...

Allied offense watch.  More proof that the "single act" of allied-offense analysis is in the eye of the beholder comes in the 8th District's decision in State v. Rogers. Rogers entered the victim's garage, broke into her car, remained inside long enough to smoke a cigarette, then took some jewelry from vehicle.  The court says "the length of time involved between the breaking and entry into the vehicle and the theft of the particular property therein indicated Rogers had a separate animus for each crime." Another reason to stop smoking, I guess.

See Dick run.  Run, Dick, run!  In State v. Hurst, the 6th District rejects a defendant's claim that the prosecutor's reference in closing argument that he ran from the police when they tried to question him about an assault was an impermissible comment on his pre-arrest silence.  Frankly, I think the argument's nuts -- there is such a thing as a flight instruction, after all -- but there's actually a 1st District case from 2006 which holds something along those lines.  It's a little more complicated than that, and the 6th District case doesn't go into much analysis -- it rejects the claim because of the "overwhelming" evidence of guilt -- but if you've got a case where your client took off a'runnin' 'cause The Man came a'callin', you might want to take a look.


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