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Case Update

By now, the school year is back in session, but Chief Justice Roberts and his cohorts are still on summer recess, and will be until the next term begins on the first Monday in October. Actually, the new term begins with a conference the week before that -- appropriately called "the long conference" -- in which the justices review the thousands of legal petitions that have been filed over the summer months. When they do, they'll find no fewer than seven raising issues about gay marriage. Six of them relate to the Defense of Marriage Act, which prohibits gay couples from receiving Federal benefits, even if they live in one of the six states (plus the District of Columbia) that recognize gay marriage. The 1st Circuit struck down that provision of DOMA in May, and three other District Courts have done so; several of the petitions seek direct appeal from those latter decisions. The seventh petition is an appeal on Proposition 8, the California referendum which repealed gay marriage in that state, but which was struck down by the 9th Circuit. Perhaps the best indication of the sea change in attitudes toward gay marriage is the fact that DOMA was passed in 1996 by overwhelming margins -- votes of 85-14 in the Senate and 342-67 in the House -- and was signed by President Clinton.

One of the petitions the Court will not have to consider is in the case of Tibbals v. Carter; it already granted the petition in March, and the case is scheduled for oral argument the second week of October. We're all familiar with the fact that a defendant can't be tried as long as he's mentally incompetent, and the Supreme Court has long held that he can't be executed, either, a ban they extended to the mentally retarded in 2002. Tibbals raises the issue of whether an individual has the right to be competent in order to take part in Federal habeas review, or to have the case put off indefinitely.

No opinions from the Ohio Supreme Court last week, but the justices weren't on summer vacation: they heard oral argument in nine cases, three involving sex offender registration. I'll discuss those on Wednesday. The court will be back in session the week after Labor Day with oral arguments in seven more cases. Alas, it appears that the rate of miscreancy -- and don't look at me that way, it is a word -- among the bar seems to be on the uptick: five of the seven cases involve lawyer disciplinary actions.

So in the meantime, let's wander over to the courts of appeals, where nobody was on summer vacation; one of the busiest weeks in a while...

Ah, the perils of digital recordings: In State v. Robbins, the defendant claims that his plea is invalid because the transcript indicates that his response to the court's questions about the maximum penalties he faced on his plea was "(inaudible)." The 6th District holds that the rest of his statements indicate he understood what was going on and validly waived his rights, and besides, the appellant has the burden of providing a transcript, and "although the transcript does not record a response to the court's inquiry affirming his understanding, it also does not record a response indicating a lack of understanding." The court also holds that the indictment formed a sufficient factual basis for the plea... A trial court need not hold a hearing on the defendant's competency, even though it's ordered him to be evaluated for competency, the 8th District rules in State v. Fhiaras; a hearing is only required where the competency issue is raised and maintained, and here defendant and counsel raised no objection to proceeding with trial. Another factor might have been that the defendant refused to submit to evaluation... In State v. Stegall, the bailiff advises the judge that the defendant called the judge a "bitch," and so the judge imposes a 30-day jail sentence for contempt of court. No can do, says the 1st District: that's indirect contempt, and the defendant is entitled to a hearing before a different judge...

Even where parties stipulate to admission of medical records, the trial court can exclude them if she believes that expert testimony would be necessary to allow the jury to understand them, the 8th District holds in State v. Belle... You're not going to get very far in claiming that your statements to a polygraph examiner should have been suppressed as being involuntary when you drive yourself to the examination, and leave when it's over, the 9th District says in State v. Jackson... The 4th District affirms the dismissal of an aggravated vehicular assault charge on double jeopardy grounds in State v. Hicks; the defendant had previously been convicted of OVI in the same incident, and proof of the OVI would have been required for conviction of that section of the aggravated vehicular assault statute. Interestingly, the defendant did not raise the double jeopardy issue until after jeopardy had attached in the second trial, and the State argued that the defendant was required to raise the issue in a pretrial motion. The appellate court rejected the argument, because the State had indicated in the trial court that a pretrial motion wasn't necessary...

A court can't increase restitution after sentencing the defendant, but it has no jurisdiction to modify restitution to a lower amount, either, says the 5th District in State v. Corbitt... In State v. Willette, the 4th District reverses the grant of a motion to suppress evidence. The police officer testified that after stopping a vehicle for a traffic violation, he spotted marijuana residue on the passenger's shirt, searched him further, and found cocaine. The trial judge had concluded that spotting the residue didn't give probable cause for a search, but the 4th District rules to the contrary. The officer testified that he'd seen marijuana residue "hundreds" of times over the course of his career. Must be some messy pot smokers down there...

Good case on pleas from the 10th District in State v. Black. The case law requires that a judge at a plea hearing inform the defendant of the maximum sentence he faces, but there are plenty of cases holding the defendant doesn't have to be advised that sentences could be imposed consecutively. The two are plainly inconsistent, and the issue is further complicated by the fact that some of the counts to which a defendant pleads guilty can later merge as allied offenses. The judge in Black apparently got sidetracked by the merger issue, and never told Black that he could be sentenced to 33 years (what he eventually got) or more. There are some special circumstances in Black, and the opinion tries to limit itself to "the totality of the circumstances" presented by the case. But there's good language indicating that the failure was to "inform Black of how long his sentence could be if the periods of incarceration were ordered to be served consecutively." In light of the Supreme Court's decision in Missouri v. Frye, Black gives you a good basis for arguing that a judge's merely reciting the maximum penalties for each offense at a plea hearing, without advising the defendant of the possibility of consecutive sentences, isn't enough.

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