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Case Update

The US Supreme Court took last week off, as politicians and the pundity, their loins fully girded, awaited the decision in the health care reform law.  The Court's term doesn't officially end until next Monday, though, so the angst might continue for another week.  There are three days -- today, Thursday, and next Monday -- in which the Court will be announcing its opinions, and there are still fourteen merits cases to be decided, including a Crawford issue on expert testimony, the two cases on life without parole for juvenile homicide offenders, the applicability of Blakely to fines, and the retroactivity of the reduction in crack penalties.  That's just the criminal cases; also on the Court's plate are the FCC's indecency policy, the constitutionality of the "Stolen Valor Act, which prohibits someone from lying about receiving military medals, and the Arizona immigration law.  Busy busy busy.  Needless to say, I'll have my insightful analysis of each decision right here within hours of the opinion's release, once I work out the kinks in going to that 30-hour workday.

Down in Columbus, three death penalty cases take center stage.  Back in 1987, in State v. Penix, the court held that if a death sentence was overturned on appeal, only a life sentence could be imposed; there was no provision in the law for empaneling a new jury for the punishment phase.  The legislature took care of that in 1996, amending the law to permit a new jury to determine punishment, and amended that in 2005 to expressly make it retroactive.  A few months before the 1996 law was enacted, Maxwell White murdered a state trooper and was sentenced to death.  His sentence was overturned by the Federal courts in habeas in 2007, and the issue in last week's decision in State v. White is whether the statute allowing a new jury can be applied to him retroactively.  By a 5-2 vote, the court rejects White's claim that application of the statute to him violates Ohio's prohibition against retroactive legislation and the Constitution's Ex Post Facto Clause.  The two dissenters, Lanzinger and Pfeifer, don't even reach that issue.  They point out that the amendment only applies where there was an error in the sentencing phase, and here the error was not removing a biased juror during voir dire.

In State v. Powell, the court affirms Powell's conviction and death sentence arising out of an arson which killed three children and Powell's girlfriend.  Probably the most interesting issue among the 26 Powell raises is the fact that after the defense had filed various motions to preserve the house where the fire took place, and the judge granted them, everybody found out that the city had demolished the house several months earlier.  Too bad; absent proof that the house contained definitely exculpatory evidence, that argument's going nowhere.

The last death penalty case actually wasn't decided by the Supreme Court, but it soon will be.  Twenty years ago, Abdul Awkal walked into the domestic relations courthouse up here and killed his wife and brother-in-law.  That earned him a date with the needle, which was supposed to take place on Wednesday.  Last week, though, the common pleas judge who'd sentenced Awkal to death determined that he was presently too incompetent to understand why we want to kill him.  (He believes the CIA is behind it.)  Prosecutor Bill Mason vowed to appeal, although there's a possibility that medication can restore Awkal to a point of awareness where he can be executed.  Read this paragraph again, and tell me that irony is dead.

In the courts of appeals...

Bullshit Non-Traffic Stop of the Week™:  In State v. Byrd, the cops stop Byrd for jaywalking, and eventually pat him down and find crack.  The 2nd District tosses the search, finding that the fact that the area was known for drug activity and that Byrd was known to be a member of a gang wasn't sufficient to demonstrate that Byrd was armed and dangerous... In State v. Thomas, the defendant contends that when the appellate court vacated six of his thirteen convictions for insufficient evidence, he was entitled to a de novo resentencing.  Not so, says the 8th District.  Ohio doesn't follow the sentencing package doctrine, used in Federal court, which allows a trial court to fashion what it deems an appropriate sentence for defendant's conduct.  Here, each conviction and sentence stands on its own, and the trial court could do nothing other than reimpose the same sentence on the remaining counts... The 9th District reverses a conviction because of prosecutorial misconduct in State v. SmithThe prosecutor had elicited from the alleged victim during direct examination that the defendant's brother had supposedly attempted to bribe her.  The court finds that this deprived the defendant of a fair trial, despite several attempts by the trial judge at curative instructions...

Allied Offense Watch:  What to do when the defendant claims on appeal that his offenses were allied, and the case comes up on a plea, where there is little in the way of a factual record?  That's bedeviled courts since State v. Johnson held that the focus in allied offense cases should be on the defendant's conduct.  The two approaches to resolving that issue are typified by the the 6th Distict's decision in State v. Wallace, and the 6th District's decision in State v. Brautigam.  In Wallace, the court can't determine from the record whether the theft and receiving stolen property offenses the defendant pled to were committed with the same act, and simply rejects the assignment of error on that basis.  In Brautigam, the defendant never raised the issue of allied offenses at sentencing, but the panel reverses and remands the case back to the trial court to make the necessary analysis... In State v. Walton, the 5th District determines that felony murder and improperly discharging a firearm into a habitation should have merged.

At defendant's sentencing for throwing a Molotov cocktail at a train, the judge heard from an FBI agent, the conductor of the train, the railroad's safety superintendent, and the train's pilot engineer.  Perhaps to defuse an argument that he was pressured by the Feds and the railroad to impose a stiff sentence, the judge announced that "I prepared the sentencing entries in this case before I heard the remarks from the gentlemen that appeared here today, and when I prepared these sentencing entries, at that time I could not have been influenced by anyone who spoke today."  Wrong move.  In State v. Rogowski, the 9th District reverses the sentence, finding that the judge violated RC 2929.19(B)(1), which requires that "before imposing sentence," the court "shall consider . . . any information presented at the hearing."  The 9th finds that the judge "admitted that he determined Mr. Rogowski's sentence before receiving any information at the hearing," so back it goes.

Desperation for an appellate attorney sets in when you've finished reviewing the transcript of the trial and realize you've got nothing.  So what do you do?  If you're thinking of throwing together an assignment on insufficiency, heed the cautionary advice of the 2nd District's decision in State v. Hale, which deals with that assignment thusly:

Other than a few desultory references to inconclusive matters in the record, Defendant's brief on appeal is wholly lacking in arguing a basis for the error he assigns. We are then left to surmise why and how the State's evidence was insufficient, perhaps by reviewing the seven hundred page evidentiary transcript ourselves to determine whether the State's evidence was sufficient. That is not an acceptable alternative...

Wonder who's bidding for the movie rights.  The first paragraph of the 10th District's decision in State v. Caulley pretty tells you all you need to know:  "This case presents the question of whether the state can appeal the trial court's grant of a motion for new trial when it is undisputed that the criminal defendant's trial counsel had an affair with the defendant's wife before and during the trial."

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