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Case Update

No decisions from SCOTUS yet, of course, and no more oral arguments until October 29, which marks the beginning of the "November sitting" (yeah, I don't understand it, either), so the big news came not from what the Court did, but from what it will probably be doing:  deciding the constitutionality of the Defense of Marriage Act, the law overwhelmingly passed by Congress in 1996 defining marriage as a union of a man and woman.  Seven Federal courts have held that Section 3, which provides that definition, is unconstitutional on various grounds, including lack of a rational basis, violation of the 10th Amendment, and lack of congressional power.  Last week the 2nd District became the eighth, but with added impact:  it held that discrimination against gays had to be judged under the "heightened scrutiny" standard applicable to cases involving gender discrimination.  Although the parties in the other cases have sought Supreme Court review, the 2nd District case might jump to the head of the line; because of her work as solicitor general, Justice Kagan would have had to recuse herself from the other cases, leaving the possibility of a 4-4 split.

In a post a month ago, I'd opined that one of the key qualities of judge was "temperament. Being fair means acting fairly, and that means keeping a tight rein on your emotions."   Massillon Municipal Court Judge Edward Elum apparently didn't place as much priority on that as I do.  Two years ago, Elum gave Cody Dunn probation for domestic violence and underage alcohol consumption, only to see him pick up another case.  He gave him probation again, but Dunn didn't pay the required fines.  Fool me twice; when Dunn showed up for a meeting with his probation officer, Elum asked the officer to take Dunn into the courtroom, where, according to the opinion in Disciplinary Counsel v. Elumhe berated him with the following remarks:

  • Cody, quit screwing up. * * * Quit fucking up.
  • You have a bad case of D.H. Dickheaditis.
  • You're screwing off. You can't keep continuing to screw off or you'll be like the rest of the dickheads at the Stark County Jail.

For that, and his intercession in a byzantine police investigation - something about a cop emailing nude pictures of himself to a woman he'd given a traffic ticket to - Elum earned a public reprimand.

No foul language In the courts of appeals...

In State v. Thompson, the defendant files a motion for new trial from his conviction of a 2nd-degree felony of endangering the infant son of his girlfriend.  Thompson attached affidavits from two doctors questioning the evidence which formed the basis for the conviction.  The 2nd District affirms the trial court's denial of the motion without a hearing, noting that the motion was filed three years after the conviction and that both doctors are well known in the field, and concluding that there is "a material difference between being unaware of certain information and being unavoidably prevented from discovering it"... In State v. Phillips, the defendant complains that there was insufficient proof of the value of the ring he'd stolen to support his 4th degree felony conviction.  While that might be relevant for restitution, the 8th District holds, it has no application here:  a plea of guilty admits all the elements of the offense, including value... A lengthy (37 pages) opinion from the 9th District in State v. Calise discussing the Daubert requirements for admission of expert testimony... Miranda warnings given on one day did not become "stale" before interrogation on the next day, the 11th District holds in State v. Anders, also affirming 15 years of consecutive sentences for Anders' 30 convictions of theft and breaking and entering... In State v. Hale, the trial court adds conditions to defendant's post-release control, after his conviction for gross sexual imposition, prohibiting him from any unsupervised contact with minors.  The 12th District holds that the trial court has no authority to impose conditions for PRC, strikes them from the entry, and affirms...

Talk about a good news/bad news joke.  In State v. Bell, the defendant argues that the heroin found in his motel room should have been suppressed, and that his five-year sentence was excessive.  The 2nd District agrees that the initial search - the cops had gone to the room while awaiting the warrant, and after removing Bell from the room, conducted a "protective sweep" - was bad, but holds that the warrant was based on sufficient other evidence, and that the sentence was appropriate, especially given that someone had died from an overdose of drugs Bell had given him.  But Bell does come up a winner on a forfeiture issue:  the specification for the money the police seized was contained in the first count of the indictment, which was dismissed, but not the second, for which Bell was convicted.  So he gets his money back.

It came to $122.

Job search.  In State v. Lewis, the defendant argues that he lacks the present and future ability to pay the $12,500 fine the trial court imposed upon for his conviction of manufacturing methamphetamine.  The 2nd District disagrees, noting that "Lewis' ability to manufacture drugs indicates that he is able-bodied and intelligent enough to obtain employment, perhaps manufacturing something legal."

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Recent Entries

  • May 25, 2017
    "Clarifying" post-release controls
    A look at the Supreme Court's decision in State v. Grimes
  • May 23, 2017
    What's Up in the 8th
    Allied offenses, and two search cases
  • May 23, 2017
    What's Up in the 8th
    Allied offenses, and two search cases
  • May 22, 2017
    Case Update
    Is SCOTUS looking for a forfeiture case? Plus, appellate decisions on expungement and restitution, plain error, and what a judge has to tell a defendant about sex registration
  • May 19, 2017
    What's Up in the 8th - Part II
    Decisions on lineups and prior calculation and design, and two out of eight (eight!) pro se defendants come up winners,
  • May 17, 2017
    What's Up in the 8th - Part I
    Taking a first look at some of the 8th District's decisions over the past two weeks
  • May 16, 2017
    Case Update
    Stock tips, Federal sentencing reform goes dormant, schoolbag searches, and the retroactivity of State v. Hand
  • May 8, 2017
    Case Update
    Death in Arkansas, a worrisome disciplinary decision, and appellate cases on speedy trial, arson registration, use of prior testimony, and the futility of post-conviction relief
  • May 2, 2017
    What's Up in the 8th
    Nothing but sex
  • May 1, 2017
    Case Update
    SCOTUS closes out oral argument for the Term, the Ohio Supreme Court has seven of them this week, and we report on a decision where you'll probably want to play Paul Simon's "Still Crazy After All These Years" in the background while you read about it