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Case Update

I always learn something when I'm blogging.  I learned something during my hiatus from blogging last week, too, which is that when the cop stops you for going 52 in a 25-mph zone, you're not going to weasel your way out of a ticket by claiming you're dyslexic.  Worth a try...

The Supreme Court is in summer recess, of course, but that doesn't stop anybody from talking about it.  While the big case this past term was the health care act, with discussion still raging about Roberts' supposed vote switch, attention is already shifting to what is likely to be the big issue for the 2012 term:  gay marriage.  The backers of Proposition 8, which outlawed gay marriage in California, are appealing the 9th District's decision nullifying the referendum.  The Justice Department is asking the Court to review the Defense of Marriage Act, passed in 1997; the 1st Circuit ruled Section 3 of the Act, which prohibits the Federal government from recognizing same sex marriages, unconsitutional earlier this year.  Another provision of the law which may come under fire is the one which allows states where gay marriage is illegal to refuse to recognize it, even if it was peformed in a state where gay marriage is allowed.  And another case might be headed the Supreme Court's way, again via the 9th Circuit:  just last week, that court nullified Arizona's attempt to strip health benefits for domestic partners of state workers, finding it discriminatory.

Those cases, if cert is granted, will join about 40 others presently on the docket, about half the court's normal load.  There are a number of interesting criminal cases on the horizon -- drug sniffing dogs, double jeopardy, and the retroactivity of Padilla v. Kentucky -- and I'll have more on those in the coming weeks.

I'll have more on criminal cases out of the Ohio Supreme Court, too, when they start rendering decisions on them.  They didn't while I was on vacation, but the courts of appeals made up for it:  a couple of hundred cases, about half of them criminal, for me to wade through.  Let's get to it...

8th District continues its case law requiring that a defendant who argues on appeal that his sentence was disproportionate must have raised the issue in the trial court, and presented evidence there of disproportionality, in State v. Storey... The odor of burnt marijuana emanating from a vehicle provides probable cause for the warrantless search of a passenger in the vehicle, the 1st District holds in State v. Steadman... The new discovery rules permit the prosecution to withhold names and addresses of witnesses if it certifies to the court that doing so would compromise the witnesses' safety.  In State v. Blake, the 12th District holds that testimony by the prosecutor alone, without supporting evidence, is sufficient to warrant non-disclosure... In another discovery-related case, the trial court had declared a mistrial because of defense counsel's repeated use of documents which she had failed to turn over during discovery; in State v. Davidson, the 10th District rejects the defendant's claim that she should have been discharged because the declaration of mistrial wasn't a manifest necessity...

In State v. Cassano, the 8th District points out that (1) Bruton isn't applicable in a bench trial, and (2) under 2929.14(B)(1)(g), if a defendant is convicted of two or more offenses, and one of them is murder, attempted murder, aggravated robbery, felonious assault, or rape, the court has to stack the firearm specs for two offenses, and can stack the specs for the remaining offenses... Domestic violence, aggravated burglary, and violating a protection order should have merged as allied offenses, the 12th District rules in State v. Seymour... In State v. Fortson, the 11th District rejects the claim that trying an adult in adult court for crimes he committed as a juvenile violates his due process or equal protection rights...

In State v. Boone, the State presented DNA evidence against Boone, and Boone argues on appeal that the trial court erred by denying his request for funds to hire an independent DNA expert.  Not so, says the 9th District; an indigent criminal defendant must be provided expert assistance at state expense only where the trial court, in its discretion, determines that (1) there's a reasonable probability that the requested expert would aid in his defense, and (2) that denial of the requested expert assistance would result in an unfair trial.  The practical effect of the decision is to create a Catch-22 which renders it virtually impossible for an indigent defendant to get funds for his own DNA expert.  The State's expert report will show a one-in-a-gazillion chance that the defendant's not the guy.  In order to get funds for his own expert, the defendant has to show there's a "reasonable probability" that the expert would aid in his defense, which here means a reasonable probability that the state's test is wrong.  But how does he show that, without an expert?

Fourth Amendment Watch:  Continued detention of defendant's vehicle for nine minutes after check of license, registration, and vehicle status was completed was unreasonable in the absence of any suspicion of criminal activity, the 5th District finds in State v. Hawkins, affirming the grant of a motion to suppress... and in State v. Lindsey, the 2nd District affirms the grant of a motion to suppress where the stop was based on the defendant's driving through an intersection at a "low speed" of 10-15 miles an hour, where the speed limit was 25.  The key testimony was the officer's explanation for the vehicle stop:  "I wasn't sure what he was doing, and that's why I stopped him."  The court notes that "simply being unsure of what a suspect is doing is a wholly insufficient basis upon which to stop and question an individual."

Although a defendant, by pleading guilty, waives his right against self-incrimination, does that mean the judge can question him about the details of the offense at the plea hearing?  That was the question presented in State v. Dahms.  The 6th District notes that normally the answer would be no; in fact, the defendant's 5th Amendment continues through the sentencing hearing.  Here, though, not only did the defendant not object, and the court holds he'd waived his right by agreeing to testify against his co-defendant.  But it's something to keep in mind at a sentencing hearing:  other than admitting his guilt, your client isn't obligated to tell the judge anything more about the offense.

The Week Ahead.  In addition to the 8th District update tomorrow, on Wednesday we'll be looking at the new sentencing cases on HB 86, and on Thursday we'll analyze the 8th District's recent decision reversing a murder conviction because the judge should have granted a mistrial.  Since SCOTUS is out of session, and the pace of decisions in other courts falls off at this time of year, we're going to go to summer hours here, and just post four days a week.

And yes, we realize that your participation in all that is merely spectatorial -- and yes, there is such a word -- but we're using the imperial "we."  Not a particularly good indicator of mental health (or, more accurately, not an indicator of good mental health), but let's hold off the call to Probate Court until Russ starts talking about himself in the third person.

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