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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

Our country's long history of racial problems, and our attempts to resolve them, will bubble to the surface again in two cases before the High Court this coming term.  Fisher v. University of Texas raises the troublesome issue of affirmative action, a decade after the court last addressed the problem in two cases involving the University of Michigan.  Those decisions permitted a school to take race into account, so long as it was not the dominant factor, on the basis that diversity was a desirable goal in itself.  Fisher presents the same issue, but to a substantially different court; Sanda Day O'Connor wrote the opinions in the the Michigan cases, and she's been replaced by Samuel Alito.  Complicating the situation further for the Univerity is that Elena Kagan has recused herself.  Complicating the case for the Court is that it's a procedural mess:  unlike the plaintiffs in the Michigan case, Fisher sued only in her own name rather than bringing a class action, and subsequently enrolled in and graduated from Louisiana State University.  All that may be at stake is her $100 application fee; there's word that the University has offered to refund it, possibly making the case moot.

Efforts by Republican-controlled state legislatures to pass voter ID laws have raised cries that the ulterior motive is to suppress the votes of minorities, a contention that was hardly dispelled by the recent boast of the Pennsylvania Senate majority leader's that the state's new law made it more likely that Mitt Romney could carry the state in November.  Pennsylvania's defense of the law in court, that it was necessary to defend the integrity of the vote, was not helped, either, by its concession in those proceedings that it knew of no cases of voter fraud, and would not be contending that fraud was a justification for the law.  This term, the Court will be considering two cases which seek to invalidate Section 5 of the 1965 Voting Rights Act, which bars certain states and localities from changing their election laws without Justice Department or court approval.  The Act has been one of the most successful pieces of legislation in US history; in the 15 years after its passage, the number of black officeholders in the South increased from 12 to over 10,000.  The last time the Court looked at the law, though, it indicated that Section 5 may have outlived its usefulness, and don't be surprised if it concludes that this time around.

If you've ever debated the wisdom of doing the horizontal mambo with a client, you might want to check out the Ohio Supreme Court's decision in Disciplinary Counsel v. Hines.  Hines had started up a relationship with a female divorce client, and in the court's route to deciding what to do about this -- Hines wound up with a stayed six-month suspension -- it discusses similar cases in such number that one is compelled to conclude that whatever might be wrong with Ohio lawyers, a lack of testosterone isn't one of them.  So go read the case, and get on with your bad self.

No such randiness in the courts of appeals...

In State v. Dorsey, police responded to a call of theft of food items from a store.  When they attempted to stop Dorsey walking a few blocks away, he threw down a hammer and the food items, and they found him with two screwdrivers.  He was charged with possession of criminal tools.  Bewilderingly, at trial a police officer was allowed to testify that screwdrivers are pounded into steering columns with a hammer in order to steal cars, and that he'd arrested Dorsey two years earlier because he'd found him in a stolen auto with a stripped steering column.  The 1st District reverses his conviction, finding that the testimony of the prior incident was improper 404(B) evidence, and the evidence was insufficient, since there was nothing to indicate that the hammer and screwdriver helped Dorsey steal food... Another case on the Castle Doctrine... sort of.  In State v. Lampley, the defendant claims his attorney was ineffective for not asking for the instruction.  The 5th District rejects the argument, finding that although the victim leaned into the defendant's vehicle earlier, at the time he was shot he was just walking toward the car, so was not an "intruder" within the meaning of the statutory defense... Another breaking & entering/theft case on allied offenses in State v. Sludder, with the 3rd District holding that the former offense was complete before the latter was committed, and therefore the two don't merge... Good case on the factors for "course of conduct" in determining venue, where the defendant committed the offenses in a three-county area, in the 12th District's decision in State v. Ward-Douglas...

Damned if you do, damned if you don't.  So you're a cop following a car, and the driver isn't committing any traffic violations.  The three passengers aren't doing anything, either:  no furtive movements, no looking back at you, nothing; they're sitting up and looking straight ahead.  So what do you do?  If you're the cop in State v. Pressley, you stop the car anyway, on the basis that you considered the occupants' "failure to acknowledge him to be suspicious behavior."  The 2nd District fortunately notes that "a driver's failure to acknowledge or make eye contact with a police officer, in the absence of a traffic violation or suspicion of another criminal act, is not a valid reason to initiate a stop of a vehicle," but nonetheless upholds the stop, finding reasonable the officer's suspicion that the car had been involved in a burglary.


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