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Case Update

No decisions from SCOTUS, the pundits still pre-occupied with dissecting the oral arguments in the gay marriage cases a couple of weeks back.  Perhaps the best measure of the interest in those cases was the amicus briefs:  over a hundred were filed, some in both print and video format.  In fact, we seem to be coming to the Warholian point where everybody is not only famous for fifteen minutes, but files an amicus brief with the Supreme Court as well.  The haul included not only the usual suspects, like the California Council of Churches and the Lamda Legal Defense and Education Fund; Gary J. Gates filed one, and Jonathan Wallace, Meri Wallace, and Duncan Pflaster cooperated to produce their own.

Although the quantity was unusual, it's fairly common for amicus briefs to be filed, reflecting the importance of the Supreme Court as an institution which establishes policy.  But in order for the court to establish policy, it has to first agree to hear the case, and for that reason there's a lot more amicus activity in the cert stage than there used to be.  Adam Chandler has a nice article over on SCOTUSblog  about some of the big movers and shakers in this area, noting that in the past five years the number of cert-stage amicus briefs has increased by 35%.  In the last three years, nearly 1750 organizations filed amicus briefs urging the Court to accept (or not accept) a case.   The busiest were the Chamber of Commerce (54 briefs) and the National Association of Criminal Defense Lawyers (41).

The Court does resume oral arguments next week and the week after, which will be the last oral arguments of the term.  On tap are several criminal cases, including one on a judge's participation in plea bargaining, one on whether the Self-Incrimination Clause protects a defendant's refusal to answer questions before he has been arrested or read his Miranda rights, and another on the retroactive application of Michigan's abolition of the diminished capacity defense.  Later this week I'll have the long-promised post on the Court's decision in Chaidez v. US, on whether Padilla v. Kentucky applies retroactively.

The Ohio Supreme Court has oral arguments this week, and another spate of them two weeks after that.  Only two criminal cases are up, both out of the 9th District.  One concerns the interplay between a pardon and sealing of a criminal conviction, the other whether  a trial court could take judicial notice that a "lite beer" is a "beer" within the meaning of the statute prohibiting selling liquor to minors.  I'm thinking that you could come up with a pretty good drinking game for watching the oral argument in the latter one.

In the courts of appeals...

In State v. Tite, the defendant pleads to two offenses, and the State dismisses four others.  When Tite appeals, the State refiles the dismissed charges.  Tite not only loses the appeal, he loses the trial of the other four charges, and winds up with an additional 150 days in jail.  Good news for Tite this time:   while the State argues that Tite breached the plea argument by appealing, the 6th District finds there's nothing in the plea colloquy to substantiate that, and reverses his convictions... An anonymous tip that a house is being used as a marijuana grow, coupled with records from the electric company showing the house is using double or triple the amount of electricity comparable houses in the neighborhood are, is insufficient to establish probable cause for a search warrant, the 2nd District holds in State v. Liebold... A juvenile has the right to have a parent or lawyer present during all "proceedings," but that doesn't include police interrogations, the 6th District notes in State v. Fontenot...

The 8th District's been pretty good about holding judges to what they're required to do to impose consecutive sentences under RC 2929.14(C)(4), and that continues in State v. Dodson.  While in some districts the appellate panels will search the record to decide whether it supports consecutive sentences, regardless what the judge says about it, in the 8th the judge has to make the specific findings.  In Dodson, the panel finds that it "can construe" certain statements to equate to the finding about multiple offenses causing such harm that no single prison term is appropriate, but left missing were the findings that consecutive sentences were necessary to protect the public or to punish Dodson, and that they weren't disproportionate. 

If you've got a racketeering case, you need to take a look at the 2nd District's decision in State v. Beverly.  Beverly and another defendant were convicted of a series of thefts and burglaries.  The panel holds that proof of the "enterprise" necessary for a racketeering conviction is separate from the "pattern of racketeering activity"; while evidence regarding the two might coalesce, proof that two people engaged in a series of crimes does not prove that they were an "enterprise":  "an ongoing organization with associates that function as a continuing unit with a structure separate and apart from the pattern of corrupt activity."  The court also reverses Beverly's 66½ sentence, finding it be an abuse of discretion.

A matter of timing.  The defendant in State v. Colyer claims that his conviction for drunk driving should be reversed because of insufficient evidence that his car was operable.  The 1st District rejects the argument, because the reason it wasn't operable was because he crashed it into a tree.  And that wasn't the biggest stretch of an argument in the 1st last week:  in State v. Green, the defendant appeals his prostitution conviction, arguing that the Constitution's Due Process clause protects the act of consenting adults engaging in sexual activity for hire.

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