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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

SCOTUS has come down with its first opinion of the term, holding in United States v. Bormes that the Little Tucker Act does not waive the government's sovereign immunity with respect to damages actions under the Fair Credit Reporting Act. If you read the opinion, or summaries of it (which is as far as I got), you'll find that the Little Tucker Act is apparently an offshoot of the Tucker Act. I haven't ascertained whether there's a Big Tucker Act. We've now spent more time discussing it than either of us feel necessary, so let's move on.

While Bormes was the first opinion of the term, it wasn't first decision. Last month the Court did a GVR - grant certiorari, vacate the judgment, and remand - in a case from California involving a life-without-parole sentence for a 17-year-old. The Court ruled last term in Miller v. Alabama that such a sentence was barred by the 8th Amendment. Miller, though, addressed only the question of whether such a sentence was unconstitutional if it was mandatory. In California, the sentence was discretionary, leaving the state courts to figure out exactly what Miller meant. There are a number of possibilities -- the state court could uphold the sentence, order a new sentencing hearing at which a life-without-parole sentence is deemed presumptively impermissible, among other options -- and it's likely that the issue will wend its way back to the Court in the next few years.

There are still a few oral arguments from earlier this month that I haven't talked about, and another one next week in a criminal case. After that, things taper off: the court has five oral arguments the week after that, none piquing my interest, and then takes the rest of the month off. The Court does have a conference this Tuesday to consider various cert applications, and there's some interesting stuff on tap. One case raises the issue of whether the constitution requires that an insanity defense be available in criminal cases - Idaho doesn't think so, and neither does Montana, Utah, Nevada, and Kansas, all of them having abolished the defense in the wake of John Hinckley's acquittal, by reason of insanity, of his attempted assassination of Ronald Reagan. Another presents the question of whether a state criminal conviction can be based upon a non-unanimous jury verdict. Only two states allow this, Louisiana and Oregon, and forty years ago, in Apodaca v. Oregon, a bitterly divided Court allowed the practice in a plurality opinion, with Justice Powell concurring only in judgment.

Down in Columbus, no decisions or oral arguments, as the court contemplates something its Federal counterparts don't have to worry about: election results. With the defeat of two incumbents, Yvette McGee Brown and Robert Cupp, coupled with the retirement of Evelyn Lundberg Stratton, the court's composition will change dramatically by the beginning of next year. How that will affect its rulings is unclear - McGee Brown was a Democrat, and Cupp a Republican, so that's a wash, and Stratton is a Republican who will be replaced via appointment by a Republican governor.

One thing the results proved is that Justice Terry O'Donnell is the 800-pound electoral gorilla in Ohio. Despite his status as a Republican in a mostly Democratic year, O'Donnell garnered 69% of the vote in his race, and the 2.7 million votes he received were the most of any candidate on the ballot in the state.

There were upheavals in the district courts of appeals, too, with favored judges losing their seats in the 9th and 11th Districts. But let's talk about the cases instead...

One of the problems with trying a case to a judge instead of a jury is that if you lose, you'll pretty much forfeit any evidentiary issues: even if evidence comes in that shouldn't have, there's a presumption that the judge considered only "relevant, admissible" evidence. The 8th District poked a hole in that presumption last April in In re C.T., (discussed here), holding that the presumption doesn't apply where the trial court admits the evidence over objection. Last week, the 2nd District came to the same conclusion in State v. Hubbs, reversing a conviction for violating a protection order after the judge overruled objections to the prosecutor's questions to Hubbs about his two prior convictions of the same offense. "We presume that the trial court considered this evidence in arriving at its verdict; otherwise, the evidence would not have been admitted over objection"... In State v. McCloud, the 9th District finds that evidence showing a killing was drawn out is sufficient to establish prior calculation and design... Technology's a two-way street: the 11th District reverses the denial of a motion to suppress in State v. Lisac, because its review of the cop's dash-cam video showed there was no marked lanes violation, which had been the justification of the traffic stop... The 10th District rules in State v. Lawson that applying the enhanced penalties in the Adam Walsh Act for failure to register is not unconstitutional as being "retroactive" for a defendant who was classified under Megan's Law. A number of other districts, including the 8th, have ruled the other way, and a Supreme Court decision on the issue could come at any time...

Tips for Criminals #22: From the 6th District's decision in State v. Baughmann, we learn that if you write a letter to your girlfriend telling her that "slaughtering some maggot bitches is my ultimate dream," that's going to go a long way in proving your guilt of the offense of making terroristic threats.


Recent Entries

  • November 15, 2017
    What's Up in the 8th
    Plea withdrawals (again), sexual predator hearings, and an appellate law question
  • November 7, 2017
    What's Up in the 8th
    Don't listen to prosecutors about the law, good new/bad news jokes on appeal, and the Byzantine course of a death penalty case
  • October 24, 2017
    What's Up in the 8th
    Trying to change the past
  • October 16, 2017
    En banc on sentencing
    The 8th District takes a look at what State v. Marcum means
  • October 13, 2017
    Friday Roundup
    Musings about the death penalty and indigent defense
  • October 11, 2017
    Case Update
    SCOTUS starts its new term, and the Ohio Supreme Court hands down two decisions
  • October 10, 2017
    What's Up in the 8th
    Collaboration by inmates, fun in Juvenile Court, the limits of Creech, and more
  • October 5, 2017
    State v. Thomas
    The Ohio Supreme Court reverses a death penalty conviction
  • October 4, 2017
    Russ' Excellent Adventure
    A juror doesn't like me. Boo-hoo.
  • October 3, 2017
    What's Up in the 8th
    What not to argue on appeal, waiving counsel, the perils of being a juvenile, and expert witnesses