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Case Update

SCOTUS swings back into action this week, with opinions on Tuesday and possibly Wednesday as well.m and oral arguments in two criminal cases.   Today, in US v. Davila, the Court will consider whether a magistrate's participation in plea bargaining mandates reversal of a conviction.  The participation was notably unsubtle:  when Davila complained that his lawyer had done nothing other than advise him to plead guilty, the magistrate held an ex parte hearing with just Davila and his attorney, advising the former that "oftentimes the best advice a lawyer can give is to plead guilty," and that Davila should "come to the cross" to get the reduction for acceptance of responsibility.  Reversal is likely, because the 5th Circuit applied a per se rule without considering the harmlessness of the error (Davila didn't plead guilty until three months later, and when he tried to withdraw his plea at sentencing, he made no mention of the magistrate's admonitions), and the case is of limited applicability:  it's not a constitutional right at issue, but the Federal rule which prohibits a court's involvement in plea bargaining, a rule which many states (including Ohio) do not have.  Still, the opinion might provide some guidance on the issue.   Whether the scheduling of the case for April 15 was intended irony, given that Davila's conviction was for tax fraud, remains unknown.

Salinas v. Texas, due for argument on Wednesday, is of much greater import.  We know that the state cannot use a defendant's post-Miranda silence as substantive evidence of guilt.  One question never addressed by the Supreme Court is whether the Self-Incrimination Clause prohibits the state from using the defendant's silence before he's in custody and given his Miranda warnings.  I'll have more on that after the oral argument.

Down in Columbus, an oral argument last week on an expungement case, and I'll talk about that later in the week, too.  No opinions, and oral arguments don't pick up again until next week, and even then there's only one criminal case of the seven cases scheduled for argument.  So let's head over to the courts of appeals and see if anything significant bubbled to the surface there.  Not much, since surprisingly the 2nd District didn't hand down any decisions...

In State v. Marshall, the trial judge had placed Marshall on probation in 2008 for a third-degree felony burglary, and promised him a four-year sentence if he violated.  Marshall did, in 2012, and the judge was true to his word.  The problem?  HB 86 changed the sentence for most third degree felonies, including this one, to a maximum of three years, and the 6th District holds that's all the judge could give him... In State v. Phillips, the 8th District had originally sent the case back for merger of the attempted murder and felonious assaults in drive-by shooting that got Phillips a 92-year prison sentence.   This time, Phillips appeals, arguing that the four attempted murders should have merged, because he was firing shots at the car.  Res judicata prohibits that arguments, says the panel, since it could have been raised in the initial appeal; and besides, shooting at four people in a car creates four separate animuses (animi?).  In case you're wondering - and you know you are - Phillips got a 65-year sentence on the remand...  Aggravated burglary and kidnapping merge under the facts of the particular case, the 12th District finds in State v. Ozevin...

In State v. Cline, the 5th District upholds the trial judge's refusal to allow defense counsel to cross-examine the police officer at trial about his administration of the standardized field sobriety tests.  Failure to file a motion to suppress waived the validity of the FST's, and of the administration of the breathalyzer as well... The trial judge's telling a defendant that he intends to run the sentences concurrently creates a promise in a plea bargain, and a defendant is entitled to specific performance, says the 8th District in State v. Shelton, setting aside the consecutive sentences... Finally, Pyrrhic victory time:  in State v. Birt, the defendant appeals his 43-to-life sentence for rape and numerous other offenses.  The 12th District tosses his conviction for intimidation of a witness, holding that there was no criminal proceeding pending at the time he allegedly made the threats, but that leaves Birt to do a 40-to-life term.  

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