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Case Update

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This should've been posted last week, but wasn't.  You get two Case Updates this week; the other one will be tomorrow.

No decisions from SCOTUS -- in fact, the last one was three weeks ago -- and oral arguments don't resume until next Tuesday.  No criminal cases on tap for then; it's not until the following week that the Court takes on a couple of habeas cases, as well as Maryland v. King, testing whether requiring DNA samples from everyone arrested, not just convicted, violates the 4th Amendment.  The Court will be having a conference this Friday, and another the following Friday, to winnow out cert applications, and there are several cases it might accept which would give me something to write about, although that's probably not a factor that plays much of a role in the Court's decision-making.  We'll talk about it more, if at all, after the conference.

The Ohio Supreme had its conference last week, and accepted six cases, five of them criminal.  (And the "civil" one was with regard to imposition of costs by municipal courts in traffic cases.)  The most interesting is State v. Anderson, which raises the question of whether a trial court's denial of a motion to dismiss for double jeopardy is a final appealable order.  The court held that it wasn't twenty-three years ago in State v. Crago; the denial can't be appealed until after the second trial.  That doesn't make much sense, and defendants have largely avoided it by going into Federal court on a habeas claim and arguing the issue.  It certainly doesn't make any sense in Anderson's case:  he's facing his sixth trial, the previous five having resulted in a mistrial because of improper evidence coming out, a reversal because the same evidence was admitted in the second trial, two hung juries, and another reversal, this one because one of Anderson's lawyers fell asleep during voir dire.  Unfortunately, Anderson is not likely to resolve the issue.  The case comes up on the 7th District's denial of the State's motion to dismiss the appeal, and that's not likely to be viewed as a final order.

In the courts of appeals...

The statutory limits for bringing an accused to trial do not apply to a delay between a mistrial and a retrial, the 2nd District notes in State v. KrausInstead, the court must look to the factors in the U.S. Supreme Court's decision in Barker v. Wingo to determine whether there has been actual prejudice.  The 2nd District does just that, concluding that no prejudice was shown by the 6-month delay... The "mistake of fact" defense is adequately covered by jury instructions that the state must prove the defendant intended to commit the crime, the 6th District holds in State v. Griffin, finding that trial counsel wasn't ineffective for failing to request the instruction... In State v. Harris, the 1st District tackles the issue of whether the statements made by a defendant during a competency/sanity evaluation can be used by the State, in this case, that the defendant was malingering and feigning a mental illness.  The statute prohibits use of the statement "on the issue of guilt," and while that means the State can use the statements to "refute an assertion of mental incapacity," here the State used them in its case-in-chief.  Also of note in Harris:  the trial court conducted an ex parte hearing on the State's motion to certify non-disclosure of its witnesses, with only the prosecutor participating.  The court says that both parties should've been present, but finds no prejudice... Regardless of Johnson's same-act test for allied offenses, separate sexual acts -- in this case, vaginal penetration and fellatio -- remain separate offenses, and don't merge, the 9th District rules in State v. Daniels... For the umpteenth time:  running sentences concurrently does not solve the problem of failing to merge allied offenses, the 10th District reiterates in State v. Johnson... From the Department of Things We Were Pretty Sure About Already, an order denying a defendant's motion to terminate his counsel and appoint a new one is not a final appealable order, the 11th District says in State v. Anderson... You can't be guilty of obstructing justice by failing to tell the police your name if they've already decided to arrest you, the 6th District holds in Toledo v. Dandridge...

Even though the procedure for conducting photo array identifications specified in RC 2933.83 wasn't utilized, that doesn't require suppression of the evidence, the 2nd District notes in State v. Moon; the issue is still whether the procedure was so suggestive it violated the defendant's due process rights, and the court finds that here it didn't.  The bottom line?  Although evidence of a violation of the statutory requirements can be presented at trial, and the jury "shall be instructed that it may consider credible evidence of noncompliance in determining the reliability of any eyewitness identification resulting from or related to the lineup," it has no effect on the constitutional aspects of identification testimony.

You frequently find cases tossing confessions because of failure of the police to advise a defendant of his Miranda rights, but don't forgot that even if Miranda rights are given, or aren't needed because it's not a custodial interrogation, the confession still has to be voluntary.  That was the issue in the 12th District's decision in State v. Smith.  Smith, a doctor, went to the police station voluntarily to respond to a claim that he'd raped a patient.  After denying repeatedly that he'd had sex with the patient, he finally 'fessed up to having had consensual oral sex, after the police told him that wouldn't be a crime.  It is:  a doctor having sex with his patient can be sexual battery.  The 12th District affirmed the trial court's determination that the promise to the doctor that he couldn't be prosecuted "undermined his capacity for self-determination," and was thus involuntary.

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