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Case Update

The Briefcase continues its summer policy of using the Case Update to describe cases pending in SCOTUS' next term, and, when the Ohio Nine don't announce any decisions for the week, using the Update to describe case pending there.

Some cases wind up in the Supreme Court just because the law's so damned goofy, and Evans v. Michigan might be of that ilk.  Evans was prosecuted under a Michigan statute which prohibits "burning other real property," other than certain properties specified in another section; that other section includes dwelling houses.  After the state rested, Evans argued that the prosecution had failed to prove that the property in question wasn't a dwelling house.  After looking at the standard jury instructions, the judge agreed that proof that the property wasn't a dwelling house was an element of the crime, and dismissed the case.

The judge was wrong; the element of the property not being a dwelling house was only applicable where "burning other real property" is charged as a lesser included offense of burning a dwelling.  But what to do about it?  The Michigan courts held that the Double Jeopardy Clause didn't bar a retrial where an acquittal results from the judge's "error of law that did not resolve any factual element of the charged offense."  There are conflicting rulings from SCOTUS on this:  a 1977 case held that an acquittal, for double jeopardy purposes, involved "a ruling of the judge of some or all of the factual elements," but later decisions held that the clause precluded retrial even where "the acquittal results from erroneous evidentiary rulings or erroneous interpretations of governing legal principals."  The lower courts are similarly in conflict, so next term the Court will presumably iron it all out.

One of the biggest decisions on EvidR 404(B) evidence was the 8th District's decision last year in State v. Williams (discussed here), which held that the "common scheme or plan" exception under the rule was limited to proof of identity or situations in which the evidence was inextricably related to the case on trial.  That's made its way to the Supreme Court (docket page here), and in light of the court's ruling several months ago in State v. Morris (discussed here), I'm not too sanguine about the prospects for Williams.  We'll know more in about a month; the Ohio Supreme Court takes its show on the road about three or four times a year, and on September 25th it'll be holding oral argument on Williams at Case Western Reserve University, my alma mater.  I'll see if I can check it out, if only to take another look at the monument CWRU erected to memorialize my attendance there.

In the courts of appeals... 

In State v. Schwirzinski, the defendant filed a petition for post-conviction relief, arguing juror misconduct and attaching the affidavit of an alternate juror that one juror had received a phone call from a friend, who offered the opinion that the defendant was guilty, and another juror had told the rest of the panel that the defendant should be forced to testify.  But EvidR 606(B) - the aliunde rule - prohibits testimony by one juror of misconduct by another unless outside evidence of misconduct is first introduced, and the 6th District holds that applies to the testimony of alternate jurors as well... The defendant in State v. George contends that his identification process was unconstitutional because he was the only person in the photo array with cornrows in his hair.  That might have made a difference, says the 2nd District, except that the victim described the perpetrator as wearing a "dew rag" so that his hair wasn't even visible, and there's nothing to indicate that the fact George had cornrows contributed to his identification.  And a note to the 2nd District:  the preferable spelling is doo rag or do-rag...  A complaint charging a defendant only with "disorderly conduct," without the division, subsection, or description of the conduct prohibited by the statute, fails to state an offense, the 6th District holds in State v. Sallee... Lengthy discussion of the "aggressor" aspect of self-defense in the 10th District's decision in State v. Ellis.  The upshot is that a defendant can be deemed to be the aggressor even if he is acting lawfully; e.g., pursuing victim into parking lot to "smooth things out"...

Tick tock.  While the Supreme Court had held in Edwards v. Arizona that once a defendant invokes his Miranda rights, the police can't question him again unless he initiates the contact, two years ago, in Maryland v. Shatzer (discussed here), the Court held that a substantial break in custody ends the Edwards requirement.  Shatzer laid down a bright-line 14-day rule, and so the 2nd District in State v. Crawford has little trouble; in that case, the time lag between the two interrogations was 16 years.

There are still problems with the decision, though.  The court's on solid ground in holding that Edwards didn't apply, and that new Miranda warnings weren't required because the defendant wasn't in custody.  But the second interview was taped, and the trial court noted that "the audio of the interview reveals that in the first two and a half minutes of the encounter, Defendant stated three times that he wanted an attorney, but continued to converse with [the detective]."  Overlooked in the 2nd District's decision is that whether a person is in custody only goes to the issue of whether he should be advised of his Miranda rights; it doesn't eliminate his 6th Amendment right to counsel, which Crawford validly asserted.

Tick Tock #2.  In State v. Thress, the 11th district holds that, despite the defendant's claim that his trial attorney never informed him of his right to appeal, he waited a tad too long before filing a delayed appeal.  Twenty-three years, to be exact:  on June 14, 2012, he filed an appeal from his 1989 conviction of rape.

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