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Case Update

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The big news out of SCOTUS was no news: in its conference on Friday, the Court took no action on the ten same-sex marriage cases it now has on its docket. There is no question that the Court will take up some of the cases, and while it might fritter around the edges - deciding, for example, whether federal benefits can be denied same-sex couples who are married in a state which permits gay marriage - it will have to confront the central question of whether gay marriage can be constitutionally prohibited, and probably sooner rather than later. Society is clearly moving in the direction of approving gay marriage: three states passed referenda permitting same-sex marriage this past election, and one other rejected a referendum banning it. In twenty years, it's likely that people will regard bans on same-sex marriage the same way we look back on the prohibition of interracial marriage, which wasn't struck down until 1967.

But that's twenty years from now; the question at present is whether the Court should enter the fray, or leave it up to society to resolve the issue through the legislative process. Either way, you can bet on the Court's eventual decision being both contentious and momentous; these are the kinds of cases that people will be studying a century from now, taking their place with Dred Scott, Plessy v. Ferguson, Brown v. Bd. Of Education, and Roe v. Wade: decisions which substantially changed the nature of the country.

If you're interested in the issue, SCOTUSblog has an excellent 4-part analysis; the final part is here, and gives links to the previous three.

Down in Columbus, two decisions of note. The defendant in State v. Moore is the victim of bad timing. Convicted of two drug cases and serving 22 years in prison, Moore latched on to the "void sentence" argument on post-release controls and extended it. There was a time, you'll remember, when the Supreme Court held that failure to properly impose post-release controls rendered the entire sentence void, and required a de novo resentencing. Several courts expanded that beyond PRC: a failure to impose the mandatory driver's license suspension for a drug case, for example, also resulted in a void sentence. Moore latched onto the language of RC 2929.18(B)(1), which requires a court to impose the mandatory fine in a drug case unless the defendant files an affidavit of indigency prior to sentencing. Moore hadn't, and so he claimed entitlement to a de novo resentencing. (How this would have benefited him is unclear; he'd agreed to the sentences in both cases.) Unfortunately, three months after Moore filed his motion, the Supreme Court decided State v. Fischer, which held that failure to properly impose PRC rendered only that portion of the sentence void. Resentencing was still required, but limited to the proper imposition of PRC. The court did the same thing to the license suspension earlier this year in State v. Harris, and follows suit in Moore: he will get his resentencing, but the only result will be the imposition of the mandatory fines. Be careful what you ask for.

Plenty of disciplinary cases this past week, but the most interesting one, especially for Ohio State fans, is Disciplinary Counsel v. Cicero. Back in April of 2010, the feds raided Edward Rife's house as part of a drug-trafficking investigation, and seized about $20,000 worth of Ohio State football souvenirs and memorabilia which, it turned out, he'd bought from players, in violation of NCAA regulations. Rife contacted Cicero, a well-known Columbus criminal lawyer, to discuss the case, and met with him again about ten days later to go into more detail about it. He never hired Cicero, but after each meeting, Cicero sent a summary of what Rife had told him to Jim Tressel, the OSU football coach. The issue is a lawyer's duty of confidentiality with regard to the confidences conveyed by a prospective client, one the court acknowledges is a question of first impression. It's not a hard question; Cicero's communiques to Tressel contained numerous requests to "keep our emails confidential," in the apparent hope that Tressel would do what Cicero could not. The only real dispute is to the sanction; Cicero gets a year suspension, but Lundberg Stratton and O'Donnell argue for a six months, stayed, finding that Cicero's motive was not self-aggrandizement, but "to alert the coach about misconduct by his players that could affect the team." That's the Buckeye spirit. Sadly, Cicero's suspension comes a bit too late; had it come earlier, he could have spent it watching Ohio State compile an unblemished 12-0 record this past season. And because the misconduct did affect the team, he can't even use the time off to watch them in a bowl game: they're barred from participating because of the NCAA sanctions.

In the courts of appeals...

In State v. Henry, the 6th District looks at RC 2933.83, the new law on the conduct of lineups and photo arrays. The statute sets up a complex procedure, using "blind administrators" and the like, and provides that a judge can take the failure to comply with the procedure into consideration in ruling on a motion to suppress the identification. To no one's surprise, the appellate panel decides that the "overriding analysis remains whether the procedure was 'impermissibly suggestive'" under the test laid down 40 years ago in Neil v. Biggers. As I've pointed out before, the factors that test uses have been largely discredited by subsequent research on identification... In State v. Brown, the 2nd District reverses the grant of a motion to suppress. The cops had observed Brown riding a bicycle without lights at night, a minor misdemeanor, and after stopping him asked if he had any weapons, eliciting a positive response. The court holds that the traffic stop was permissible, and that "a simple inquiry as to whether the person stopped has a weapon is not a search or a seizure"... In State v. Patterson, the defendant threatens the victim, then punches her in the face, and then grabs a knife and cuts her. The 8th District finds this "escalating" pattern sufficient to constitute a separate animus for aggravated menacing, domestic violence, and felonious assault, and holds that the offenses don't merge... The trial judge in State v. Gilbert gave the defendant 51 years of consecutive sentences for a series of robberies, apparently without making any of the findings now required under HB 86. No matter, says the 10th District, noting that no objection had been lodged below; citing the judge's extensive experience as a judge and criminal lawyer, the court concluded that "there is simply no reason to believe the judge would have reached a different decision as to sentencing," and rejected the claim on plain error review, as essentially harmless error...

Thanks for playing "Too Much Information." I'm a big believer in using headings in briefs and opinions to clarify arguments. The 2nd District is a big believer, too, but seems to have carried that a bit too far in State v. Blakeley. In the second paragraph, headed "An Eyewitness Sees Blakeley Expose His Private Parts," the opinion explains that an Blakeley was confronted by a police officer after someone complained that as they'd driven past Blakeley's stopped car, they'd seen him "nude and squatting down" next to it. The opinion also notes that "when questioned about brown residue on his car's bumper, Blakely stated that the brown residue was horse manure, not human fecal matter." Eeeewwww.

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