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Case Update

Finally, some decisions from SCOTUS.  The one engendering most of the discussion among the Talking Heads (or Writing Heads) is Kiobel v. Royal Dutch Petroleum, in which the Court unanimously held that the Alien Tort Statute did not permit a lawsuit based on conduct occurring wholly within a foreign nation.  (The plaintiffs, Nigerians who had moved to the US, sued several foreign companies for their alleged participation in Nigeria's violations of international law.)  I'm guessing that filing lawsuits along those lines isn't high up on your to-do list, so we'll focus instead on Missouri v. McNeely, another decision from last week concerning the 4th Amendment and blood draws in DUI cases.  We'll talk about that on Friday.

The Court's holding oral argument on Monday, Tuesday, and Wednesday of this week, the last ones of the term, and will probably also release opinions in several cases.  The only criminal case up for argument this week involves a habeas issue regarding Michigan's abolition of its "diminished capacity" defense, but last week the Court heard a case involving use of a defendant's pre-arrest silence, so we'll take a look at that one on Thursday.  You can fashion your week's schedule accordingly.

If you didn't already know that the bank sends a notice to Disciplinary Counsel in Columbus anytime you bounce a check to your IOLTA account, or that you shouldn't practice law if your license to do so has been suspended, you'll want to check out the Ohio Supreme Court's decisions in Disciplinary Counsel v. DeGidio and Disciplinary Counsel v. Fletcher, respectively.  A more worthwhile read comes in In Re M.M., a juvenile case where the State had argued that certain victim statements were admissible under EvidR 807, but the trial court had granted a defense motion in limine excluding them.  Instead of appealing that ruling immediately, the State proceeded with trial, and when the judge acquitted the juvenile, the State sought leave to appeal.  As I explained when I discussed the oral argument, this basically results in the appellate court issuing an advisory opinion:  the defendant, having been acquitted, has no reason to show up for the appeal.  There's a Supreme Court decision, State v. Bistricky, which seems to allow this, and there was some hope that the court would use M.M. as an occasion to overrule Bistricky.

The court didn't.  The case revolves around RC 2945.67(A), which grants the state the right to appeal certain decisions, and permits it to seek leave to appeal "any other decision, except the final verdict, of the trial court."  The language in Bistricky was broad - it held that the state could seek leave to appeal "evidentiary rulings and rulings on substantive issues of law" - but M.M. narrows that substantially:  the court finds that if the State had the right to appeal, such as from decisions suppressing evidence, it had to do so immediately, and couldn't fall back on the statute's allowance of a leave to appeal after trial.

Some interesting decisions from the courts of appeals...

In State v. Brown, the 6th District reverses the defendant's conviction for non-support because of the trial judge's obvious bias in asking the defendant questions; the trial court's interrogation took up eight pages of transcript, as compared to eleven pages for the state's cross-examination, and was pointedly hostile.  Notably, this was a bench trial... In State v. Loges, the 2nd District holds that the trial court erred by denying defendant's motion for treatment in lieu of conviction because she wasn't addicted to drugs; the statute requires only that drug usage be a factor leading to the offense... In State v. Barkley, the 8th District continues its policy of requiring the judge to explicitly make all the findings necessary to impose consecutive sentences.  Other districts have been more lax, some basically holding that if the record shows that the findings could have been made, it doesn't matter what the judge says.  Barkley shouldn't get his hopes up, though; the judge noted that Barkley had spent 22 of the previous 24 years in prison, so I'm pretty sure judge will figure out what he needs to say at the resentencing... A co-defendant makes a statement to a cellmate that he committed the robbery, but that someone besides the defendant was the accomplice.  Admissible under the hearsay exception for declaratins against penal interest?  No, says the 2nd District in State v. Rafferty; while the portion inculpating the co-defendant is admissible, the portion inculpating (or exculpating) others is not...

Fascinating decision from the 2nd District in State v. Smith.  During voir dire, one of the jurors, an immigrant who had lived in the country for 43 years, said she hadn't understood the meaning of the word "preponderance" when the judge had used it earlier.  The judge explained it, the juror said she understood, but the judge nonetheless granted the State's motion to excuse her for cause.  (One of the statutory grounds for excusal is that "English is not [the juror's] native language, and his knowledge of English is insufficient to permit him to understand the facts and law in the case.")  The 2nd District reverses and grants a new trial.  The interesting points:

  • The initial appellate lawyer had filed an Anders brief, and the court affirmed the conviction, then granted a 26(B) motion to reopen the case.
  • The trial was video-recorded, and while the video didn't show the jurors, the audio did allow the appellate panel to conclude that, contrary to the trial judge's determination, the juror did not speak with a "thick" accent, and that it had "no difficulty understanding every word she uttered."
  • There's a Supreme Court decision, State v. Sanders, which held that an erroneous excusal for cause (as opposed to the erroneous denial of a motion to excuse) isn't cognizable as error, because "a party has no right to have any particular person sit on the jury."  The 2nd District had to explain that away, and does so by holding that the exclusion violated the juror's right to equal protection (on the basis of national origin), and that the defendant had the right to raise that issue.
  • The trial judge was the one who brought up the "preponderance" issue, forgetting for a moment that it was the burden for civil cases, and incorrectly stating that the burden was "clear and convincing evidence" until corrected by a clerk. 

In State v. Mercer, the defendant appeals his conviction of child rape, contending that the prosecutor engaged in misconduct during closing argument.  The 9th District finds that the State's use of a slide during argument which "depicted Mercer as the devil" - the slide showed "a block-form man with horns holding the hand of a block-form little girl" - was "egregious" and "flagrant overstepping of the bounds of professionalism and decorum" which would "normally result in reversal of the conviction but for the existence of overwhelming evidence of Mercer's guilt."  By the way, the image of the block-form man was in red.  Guess the prosecutor didn't want to be too subtle, huh?


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