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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 Supreme Court ended its term last week, and we've already discussed the decisions it handed down.  (Except for the "Stolen Valor Act" case, US v. Alvarez, in which the Court, by a 6-3 vote, struck down the act making it a crime to falsely claim that you've won a military award.)  Despite the notion that the Court is deeply fractured, of the 75 decisions it handed down this past term, 33 were unanimous, more than twice as many as the 15 decided by a 5-4 vote.  These, and other little tidbits, can be gleaned from SCOTUSblog's Stat Pack, from which you will learn that Kennedy was the justice most frequently in the majority (88%, excluding unanimous decisions), while Ginsburg was the justice least likely to find herself there (45%), that Scalia and Thomas were the justices most commonly in agreement (93.3%), that Scalia and Breyer wrote the most opinions (22, including concurrences and dissents), and that Alito had an impressive .282 batting average with two outs and runners in scoring position.  Whoops, sorry, that last one came from ESPN.com...

For the past several years, I've done an annual recap of the Supreme Court's decisions, mostly focusing on criminal law, and I'll do it again this year.  That'll come on Thursday, which brings up the subject of scheduling.  I'll be off on the 4th of July, like everyone else.  I've got a birthday coming up, and unlike the disappointingly sedate affair from last year, I will be returning to the Bacchanalian extravaganzas which have normally coincided with my doing another lap on the Track of Life, as you can see from this picture of the preparations for the next one.  (Word of caution for those of you planning to attend:  the name of the beach is not an astronomical reference.)  So I'll be taking next week off from blogging, and returning the week after that.

Down in Columbus, the Supreme Court came down with State v. Ramey a decision on speedy trial -- unanimous, no less -- which leads me to believe, in light of their previous cases on the subject, that the justices have experienced a joint epiphany similar to that of Saul on the Road to Damascus.  I haven't ruled out an alien body-snatching scenario, though.  More on the decision this Friday.

There was one other decision, Miller v. Nelson-Miller, which appeared to have nothing to do with criminal law:  it posed the question of the validity of a journal entry of divorce signed by a magistrate, with the judge's permission.  But neither party had objected at the time -- the issue wasn't raised until several years later -- and so the discussion centered on whether the entry was void or merely voidable.  The court reaches back to cases decided fifteen years before the Civil War to conclude that a the distinction between the two "is between the lack of power or want of jurisdiction in the Court, and a wrongful or defective execution of power.  In the first instance all acts of the Court not having jurisdiction or power are void, in the latter voidable only."  As noted here on numerous occasions over the years, the court's willingness to brand sentences as void where post-release controls weren't properly imposed, or a journal entry of sentencing didn't mention the jury's verdict, or a mandatory fine wasn't imposed, or where there was some similar "wrongful or defective execution" of the court's power, has caused any number of problems.  Justice Lanzinger, who was the first justice to warn of those problems, writes a concurring opinion in Miller in which she "heartily concurs" in the opinion and acidly notes that she can "only hope that this analysis will also extend to our criminal cases in the future."

In the courts of appeals...

Interesting analysis of the question of separate animus in allied offenses in the 1st District's decision in State v. Whipple.  Whipple and his accomplices had fired innumerable shots into a house -- the cops found 28 casings -- and was convicted of discharging a firearm into a habitation and three counts of felonious assault.  The court finds that the "line of distinction" which can be drawn to separate one animus from another "can be drawn horizontally or vertically."  Horizontal distinction is temporal -- the amount of time between the offenses.  Vertical distinction involves the severity of the conduct; "i.e. the conduct so exceeds the degree required to commit the one offense that a separate animus is demonstrated as to a second offense."  The majority finds that "the level of destruction unleashed by Whipple upon the home demonstrates that he sought to do more than commit felonious assault."  It's good to see a court deal with animus, a difficult and largely undefined term, but the test is hardly bulletproof:  one of the three judges would have found that the offenses merged.

Great case from the 9th District in State v. Harris on post-arrest silence.  The prosecution elicited testimony from the police officers that when they arrested Harris for rape and asked if he knew what this was about, he answered, "I have an idea."  The prosecutor then asked repeated questions about whether that was the only thing Harris ever said, that he'd never indicated that the sex was consensual, his defense at trial, and then argued in closing that if he was innocent, Harris would have denied the allegations when questioned by the police.  The court reverses Harris' conviction, finding that this violated his rights, and also finds that the prosecutor committed misconduct by repeatedly telling the jury that the victim was credible.

Ever hear of "reverse 404(B) evidence"?  That's evidence introduced by the defendant to show that somebody else committed the crime.  There's an extended discussion of it in the 2nd District's decision in State v. Gillespie, with the court concluding that the "similarity" in the acts need not be as much in that situation as when the State seeks to introduce 404(B) evidence against the defendant... In State v. Henson, the 5th District finds that the new provisions of HB 86 mandated that the defendant be placed on community control sanctions for his theft and forgery convictions, instead of receiving a three year prison sentence.  The State argued tht the the new statute is unconstitutional because it "removes any judicial idscretion in sentencing."  Funny; I've never heard the State argue that mandatory minimums are unconstitutional for the same reason.  In any event, the panel doesn't reach the issue, because the State failed to raise them in the trial court...

Today's parenting tip, courtesy of the 6th District's decision in In re M.W. If you're seeking custody of your four grandchildren, it's probably not a good idea to test positive for marijuana on the day of the hearing, and smell of alcohol as well.


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