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Case Update

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As I mentioned on Friday, in four days last week SCOTUS almost doubled its output of the last four months.  We talked about the two 4th Amendment decisions, Florida v. Harris (drug-sniffing dog) and Bailey v. US (detention for search warrant) last Thursday and Friday, and concluded that the pro-government decision (Harris) could've been worse, and the pro-defendant decision (Bailey) could've been better.  At least, I did; your mileage may vary.  Of the seven other decisions handed down, four were criminal:  Evans v. Michigan dealt with the Double Jeopardy Clause, Johnson v. Williams was another go at the deference to state decisions in federal habeas claims, Henderson v. US concerned the question of "plain error," and in Chaidez v. US, the Court held that Padilla v. Kentucky, which required that attorneys inform their clients of the deportation risks of guilty pleas, does not apply retroactively.  I'll have a fuller description of those cases on Thursday, by which time I will presumably have read them and have some better idea of what I'm talking about.  This week, the Court holds oral argument in Maryland v. King, concerning whether the state can require arrestees to submit to DNA testing for purposes of keeping the resulting profile in the national database, so we might discuss that, too. 

The Ohio Supreme Court didn't hand down any decisions, but it did grant review in a bunch of new cases, including five criminal ones.  Among the issues presented are whether the soliciting statute is overbroad, which we'll discuss below, and whether capital defendants have the right to effective assistance of the mitigation expert.  And there's one on HB 86.  The new law raised the threshold for theft offenses from $500 to $1,000, and there's no question that a defendant who steals, say, $600 before the effective date of the new statute, but is sentenced after it, is entitled to be sentenced as for a misdemeanor.  But is he also entitled to have the offense classified as a misdemeanor?  The districts are split on the issue, with the 8th holding he's not and the 2nd and 9th holding that he is.  The court will sort it out.

In the courts of appeals...

In State v. Mitchell, the 2nd District reminds us that an affidavit for a search warrant need not state that the confidential informant is reliable, as long as it provides sufficient facts from which reliability can be inferred... If you don't object to unsworn testimony by a probation officer at a violation hearing, you waive the issue, the 8th District holds in State v. Rogers... In State v. Smith, two eyewitnesses see the defendant's picture in the newspaper, and identify him as the perpetrator.  Smith claims that the identification was rendered under suggestive circumstances, which certainly may be, but the 8th District notes that only government action producing a suggestive identification is grounds for suppression... In denying an application for expungement, a trial court need do no more than say that the public's need in maintaining the record of the conviction outweighs the defendant's interest in having it sealed, the 12th District holds in State v. Byrum; no findings, and no further detail, are required...

One of the recent developments in police practice is the videotaping of interrogations, now required by Ohio law in all homicide and rape cases.  That this has been an immense advantage for the police, rather than defendants, is demonstrated by the 1st District's decision in State v. RobbinsRobbins claimed that despite being given Miranda warnings, his confession was involuntary because he hadn't taken his diabetes medication, and was sleep-deprived.  Ten years ago that might have had some play, but the panel goes to the video, and finds that it demonstrates Robbins "was coherent, and had no difficulty communicating" with the detective. 

R.C. 2905.05(A), the child enticement statute, provides that "No person. . . shall knowingly solicit, coax, entice, or lure any child under fourteen years of age to accompany the person in any manner, including entering into any vehicle or onto any vessel," unless the person has the permission of the child's parent or custodian, or is a police officer, medic, or firefighter.  In State v. Goode, the 9th District holds that the statute unconstitutionally overbroad, since it doesn't require any degree of ill intent; the court points out that "parents picking up their child from school would theoretically violate [the statute] merely by asking their child's friend if he or she wanted a ride home."  The 2nd, 8th, and 10th have rules likewise, and as noted above, the Ohio Supreme Court just accepted review of the question.  The best part about Goode?  The State argued that the statute wasn't a problem because "a police officer can distinguish between innocent behavior and criminal behavior under the statute."  The panel acerbically noted that this boiled down to an argument "to ignore the breadth of the statute because it can be selectively enforced."

Was this trip necessary?  In State v. Timothy, the defendant, who's on post-release control in three separate cases (no mean feat), pleads guilty to a 4th degree felony escape, doesn't show up for sentencing, and is finally apprehended by Violent Fugitive Task Force.  The judge gives him 18 months on the escape and 15 months for violating post-release control, and runs them consecutively, which is required by statute.  After pointing that out, the 8th District nonetheless considers whether judge made sufficient findings under 2929.14(C)(4), concludes that he did, even though he clearly didn't.


Recent Entries

  • February 23, 2018
    Marsy's Law -- Restitution
    How the Victim's Rights Amendment passed last November affects restitution
  • February 20, 2018
    What's Up in the 8th
    A search decision, more "policies," and why a seminar for muni court judges on taking pleas might be a good idea
  • February 14, 2018
    Two more to death row
    A couple of death penalty decisions from the Ohio Supreme Court
  • February 12, 2018
    En banc on sentencing
    The 8th looks at the appellate court's role in reviewing sentences
  • February 8, 2018
    SCOTUS and the Fourth
    A couple of upcoming Supreme Court decisions on search and seizure
  • February 5, 2018
    What's Up in the 8th
    The benefits of appealing muni court cases, lecture time, and when you absolutely, positively, cannot raise arguments about manifest weight and sufficiency
  • February 2, 2018
    Friday Roundup
    School specs and sovereign citizens
  • January 31, 2018
    A tale of three cases
    The Ohio Supreme Court decides one case, and decides not to decide two others
  • January 29, 2018
    What's Up in the 8th
    Getting rid of an attorney, no contest pleas, and probation conditions
  • January 26, 2018
    Friday Roundup
    Information society. Last week I did a post about Aaron Judge and the lack of hard data in the field of criminal law. We have mainly anecdotal information on what kinds of sentences judges hand down, we have no idea...