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Case Update

At ten this morning the nine justices of the United States Supreme Court will trundle into the courtroom to begin the 2012 term. The 2011 term ended with a bang -- the 193-page magnum opus that was the Affordable Health Care Act ruling -- and was followed by whimpering in various circles that Chief Justice Roberts had switched his vote at the last minute to uphold the Act, to the anger and consternation of his fellow conservatives.

Today's cases concern the issue of corporate civil tort liability under the Alien Tort Statute, and whether a houseboat constitutes a "vessel" under Federal maritime jurisdiction. On the offchance that a reader of this blog would be interested in learning more on those cases, I'd like to refer you to somewhere you could do that, but I wasn't sufficiently interested in them to look for such places, so you're on your own. Next week presents some criminal cases, so we'll talk about those when they come up. The end of the month holds more promise, as the two "drug dog sniff" cases are scheduled for argument on Halloween. Make of that what you will.

The Court's docket for the term, as of now, is only half filled, but major decisions on affirmative action, gay marriage, and voting rights are in the offing. The former, concerning the University of Texas' admission policy, comes up for argument on Wednesday, and you'll want long odds if you're picking Texas. The last time the Court tackled the issue of school admissions and affirmative action, in 2003, Justice O'Connor managed to cobble together a bare majority to uphold it. She's since been replaced by Justice Alito, whose previous writings on the subject of affirmative action show a clear hostility to it.

Down Columbus way, in another sign o' the times, the court held in Rowell v. Smith that the juvenile court had jurisdiction to allow temporary visitation to a non-parent; after the breakup of a lesbian couple, the biological mother of the child refused her ex-partner any contact with the child, despite repeated orders to do so from the trial, appellate, and Supreme courts. The court held that visitation could be allowed if found to be in the best interests of the child, rejecting Smith's argument that, as the child's parent, she had the unfettered right to decide that issue. The case is more complicated than that brief summary would indicate, and it's unlikely to be the last decision on that subject.

There was one criminal case of significance, State v. Billingsley, which we'll discuss on Wednesday. In the courts of appeals...

Big one on sex offenders from the 2nd District in State v. Harding. Harding had pled to unlawful sexual conduct with a minor, with the complaint alleging that he was at least 18, but less than four years older than the girl. In those cases, the statute specifies that the court is to hold a hearing to determine if the sex were consensual; if it found a lack of consent, he would be classified as a Tier I offender. Prior to the hearing, Harding asked that he be sentenced without the hearing, arguing that lack of consent was required to be found by a jury beyond a reasonable doubt.

The hearing, of course, is mandated by the Adam Walsh Act. But last year in State v. Williams (discussed here) the Supreme Court held that the AWA is punitive. That means that sex offender classification is now a punishment, and the 2nd District concludes that since the complaint did not allege lack of consent and the plea did not admit that, the Tier I status required a "factual finding" that could only be made by a jury under the Apprendi/Blakely line.

A puzzling case on diversion from the 9th District in State v. Bales. RC 2935.36 permits a prosecuting attorney to establish a pre-trial diversion program. The common pleas judges in Lorain County set up one of their own, and Bales, who was charged with felonious assault, was permitted to enter the program, and the judge dismissed the charges against him when he completed it. The State appealed, arguing that only the prosecuting attorney had the authority to establish such a program. The appellate court found that the judge erred in dismissing the case with prejudice, because such a dismissal can only be had if "the defendant has been denied either a constitutional or statutory right." The court then decided that it needn't rule on the issue of whether the judges had the right to establish the program in the first place. Presumably, that issue isn't going to be resolved until the prosecution reindicts Bales for the offense and then tries to bring him to trial. Yes, courts should avoid resolving issues unnecessarily, but this seems likely only to prolong litigation.

The 9th District makes up for it, though, in a search case. (Actually, two; we'll talk about the other one later this week.) As I mentioned, two of the cases for determination by SCOTUS this term involve dog searches, with Florida v. Harris concerning the issue of what evidence the state must introduce to show that the dog was sufficiently trained to permit an alert to constitute probable cause for a search. The law has been fairly lax on that issue, but the 9th District's decision in State v. Dixon might change that: the court found

there was no competent evidence to establish that the dog that conducted the drug sniff on Dixon's car was properly trained and competent to detect drugs. Accordingly, that this dog "alerted" to the driver's side of the car did not establish probable cause for the search of the car.

A lot of this was simply lack of preparation on the prosecutor's part: even though Dixon's motion raised the issue of the dog's competence, the dog's handler was not called as a witness, and the only officer who was called acknowledged he did not know how the dog had been trained, or even how to recognize an alert by the dog. Dixon may not establish anything more than that the state has to introduce evidence of the dog's training and certification, but at least it establishes that.

Sometimes it's better to keep your mouth shut. In State v. Vitt, the defendant appeals, claiming that his convictions for kidnapping and two counts of rape should've merged, and that the resulting 29-year sentence -- ten years on each of the rapes, plus nine on the kidnapping, all consecutive -- was excessive. The 9th District rejects those arguments, but does agree that the sentence is wrong: since the kidnapping included a sexual motivation specification and the victim was under 13, the minimum sentence on that charge was ten to life. It remands the case back to the trial court to impose that sentence.

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