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Case Update

The big oral argument last week before the U.S. Supreme Court was Fisher v. University of Texas, the affirmative action case. On the undercard were two habeas cases, plus one on the effect of a marijuana conviction on immigration status. The first two, on Tuesday, were Tibbals v. Carter and Ryan v. Gonzalez, concerning the question of whether a defendant's incompetency entitled him to a stay in his habeas proceedings. The defendants in both cases argued for an indefinite stay, but that wasn't happening. Back in 1967, the Court had granted a stay in a death penalty case involving an incompetent individual; the stay remained in effect until the man died in prison, 28 years later, and it became clear during oral argument in Tibbals that no one had the desire to repeat that. It's likely that some temporal limitation, such as a year, will be the Court's final formulation.

Moncrieffe v. Holder involved the Byzantine complexities of the immigration statutes, under which a person must be deported if found guilty of an aggravated felony -- felonies involving drugs or violence. Moncrieffe, who had been in this country since he was three, was found with 1.3 grams of marijuana, and pled to possession of the drug with intent to distribute. Under Federal law, which governs the immigration issue, possession with intent to distribute marijuana is a felony, but it's a misdemeanor if it's a small amount intended to be distributed with "no remuneration." That would seem to fit Moncrieffe, who was taking two joints to share with his friends at a party. The case turns on whether the courts can look to the individual facts or must simply analyze the elements that the state needed to prove in order to obtain its conviction. If that doesn't make much sense, the case didn't, either, so sue me.

Down in Columbus, two, count'em two, criminal cases. One involved the metaphysical question of exactly when is a person outside of a motor vehicle, and the other an issue of falsity of an affidavit for a search warrant. We'll discuss those on Wednesday. In the courts of appeals...

One good reason not to ask for a preliminary hearing, at least in domestic violence cases. When the wife didn't show up at trial, the judge permitted the prosecution to introduce her testimony from the preliminary hearing. In State v. Tabor, the 12th District affirms the conviction, holding that the defendant had the opportunity to cross-examine her at the preliminary hearing, and that solved any confrontation problems... Whacky case from the 2nd District in State v. Atkins. The defendant had led police officers on a multi-county car chase, sometimes exceeding 100 mph. For whatever reason, the State allowed him to plead guilty to a single count in an information charging him with attempted to failure to comply. He then applied to the trial court for intervention in lieu of conviction. The trial court denied it on the basis that ILC is precluded if the victim is a police officer, and that the officers were "victims" because they could have been hurt in the car chase. Coulda woulda shoulda; the appellate court reverses, holding that since they weren't hurt, they didn't meet the statutory definition of victims, and Atkins was eligible for ILC... The imposition of an additional sentence for a repeat violent offender specification isn't automatice, the 8th District notes in State v. Warren; the statute lists five factors, all of which have to met... In State v. Reavis, the 5th District rules that the change in the law prohibiting a speeding conviction based solely on a visual estimate of speed by the officer applies to any case tried after the date of the statute, even if the offense occurred before that... One of the changes wrought by HB 86 was moving the language requiring a court to impose sanctions that wouldn't unnecessarily burden state or local resources from RC 2929.13 to RC 2929.11, thereby elevating that factor into one of the "principles and purposes" of sentencing. The 2nd District tackles the impact of that change in State v. Wilson, providing a chief opinion and two concurring opinions. It's worth a read, but the short version is, don't get your hopes up about the change having any impact on sentencing review.

The criminal rules require a motion to suppress to be filed 35 days after arraignment or 7 days before trial, whichever is sooner, but allows the trial court to grant leave to file one out of time in "the interests of justice." In State v. Perry, the 3rd District upholds the trial court's decision not to grant leave. The defense attorney argued that he didn't file the motion sooner because he hadn't gotten a copy of the video of his client's arrest, but the opinion notes that he didn't file the motion for leave until a month after that, and then didn't attach a copy of the proposed motion to suppress to it. Unmentioned in the opinion is the significance of the fact that no trial date had been set at the time the motion for leave was filed. My belief is that in any matter regarding the untimeliness of a pleading, the controlling factor is the potential prejudice to the other party. I guess that's just me.

James Radcliff committed numerous crimes in his youth, then went straight: he obtained a position as a custodian with the Dublin schools, became head custodian there, then married and supported his disabled wife, their child, and her four children from a previous marriage. He was fired after 21 years of exemplary service when a local newpaper published an article noting the criminal records of various employees. Last year, the governor granted him a pardon, and he applied for expungement of his convictions. The state appealed, arguing that he wasn't a first offender, and in lengthy opinion in State v. Radcliff, the 2nd District "reluctantly" agrees; a governor's pardon doesn't make one eligible either for expunging the conviction or sealing the record of arrest. It's a sad case, and shows that sometimes the gap between what is legally correct and what is morally tenable can be a chasm.


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