Carol Ann Bond's case may make it up to the Supreme Court a second time. As I explained two years ago, Bond had found that her best friend had slept with Bond's husband, the union producing a child, and had gotten even by spreading some chemicals on the friend's doorknob, car door handles, and mailbox, which gave her a rash. For that, Bond was convicted of possessing and using a chemical weapon, in violation of a statute Congress had passed under the 1993 Chemical Weapons Convention. She argued that this was a 10th Amendment violation, the Federal government intruding upon matters properly left to the states, but the 3rd District held, for reasons known only to them and their god, that she didn't have standing to raise the issue. The Supreme Court reversed that and sent it back to the 3rd for consideration of the merits of the claim, but last May the 3rd again affirmed her conviction. Her petition for certiorari is one that the Court considered on Friday, and we'll find it today whether it was accepted.
Up for oral argument tomorrow - assuming that Hurricane Sandy doesn't get in the way - is one dear to the hearts of those of us who remember paying outrageous prices for new college and law school textbooks, selling them back to the bookstores for ten cents on the dollar at the end of the term, only to see those same used textbooks offered the next term at 60% of the original price. That cheesed off Supap Kirtsaeng, too, when he came over here from Thailand to study at Cornell and USC. To defray expenses, he had his family purchase textbooks in Thailand and send them to him here, where he resold them, earning a hefty hundred grand in the process. Then legal publisher John Wiley & Sons got wind of it, sued him for copyright violation, and Kirtsaeng got hit up for a $600,000 judgment. It's a complicated legal issue - take my word for it - but I'll be rooting for Kirtsaeng.
But the real focus in the week's upcoming oral arguments is on Chaidez v. US, which raises the question of whether the Court's 2010 decision in Padilla v. Kentucky, reversing a defendant's conviction because of his attorney's failure to properly advise him of the immigration consequences of his plea, is to be applied retroactively. I'll have a review of the oral argument later this week.
Down in Columbus, the Supreme Court agreed to hear three new criminal cases, but two were accepted only to be held for decision in other pending cases. The other could prove interesting. The defendant had been convicted of selling alcohol to a minor. The judge excluded the report containing the analysis of the liquid sold because the person who prepared the report wasn't available to testify, but nonetheless convicted the defendant after taking judicial notice that Bud Lite is a beer, a decision probably shocking to those with a more nuanced palate. The 9th District held this was improper and reversed; the question the Supreme Court will determine is whether the improper taking of judicial notice on an element of the offense bars retrial under the Double Jeopardy Clause.
It should be noted that while the Supreme Court agreed to hear those three cases, as well as three civil ones, it declined to accept 72 cases.
In the courts of appeals...
What happens if a defendant's been ordered to pay restitution as a result of a conviction for aggravated vehicular assault, and the victim gets paid by the defendant's insurance company? That's the issue tackled by the 2nd District in State v. Watts. The defendant filed a motion to terminate the restitution order, which the panel analogized to a motion to vacate under CivR 60(B)(4), which allows relief from a judgment which has been satisfied, released, or discharged, or shouldn't have prospective application. It reverses and remands the case back to the trial court to determine whether the victim was fully compensated by the insurance settlement... In State v. Holloway, the defendant is charged with raping his 9-year-old stepdaughter, but she recants, so the State allows him to plead to aggravated assault. He complains on appeal that the trial court couldn't require him to be monitored by the sex offender unit as a condition of probation. Although the law is that the condition must be related to the offense, the 8th District holds that this means the trial court can consider the underlying facts of the crime...
The 9th District reverses a conviction for misdemeanor domestic violence in State v. Dowey, holding that the defendant didn't make a knowing, intelligent, and voluntary waiver of counsel because the trial court failed to properly advise him of the dangers of self-representation at trial... Nice decision from the 6th District in State v. Fraley. Fraley had been charged with inducing panic, which is a felony if the amount of loss caused is more than $500. The only testimony was an unauthenticated invoice from a cleaning company; the judge had excluded the document, but allowed someone to testify as to its contents. The court concludes that it wasn't prepared for purposes of litigation, and so wasn't testimonial under Crawford, but finds that the requirements of the business records exception weren't met, and holds that if the document didn't come in, the testimony should have been excluded as well... Rare grant of a post-sentence motion to withdraw a plea upheld by the 5th District in State v. Coffelt; the court found a manifest injustice because the defendant had been led to believe that his convictions would be expungible...
Yeah, that's frivolous. I've sometimes criticized the filing of Anders briefs, but it's hard to fault the attorney who begged out in the 2nd District's decision in State v. Schroyer. The judge agreed to let Schroyer out on bond the day he pled guilty to felonious assault, and told him that he'd get a 3-5 year sentence if he showed up for sentencing. He didn't, but filed a motion to withdraw his plea seven months later. At the hearing on that, Schroyer contended he had a learning disability which prevented him from understanding that he could get up to eight years. The hearing was continued because the prosecutor wasn't ready for that argument, and Shroyer failed to show up for that one, too. The judge finally overruled his motion, and the 2nd District affirms, probably because after all that, the judge only gave Shroyer five years anyway.
By the way, there were eleven criminal decisions handed down by the 2nd District last week. In four of them, counsel filed an Anders brief.