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Case Update

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The Potomac Nine handed down two decisions last week; rather, one decision and one non-decision, the latter coming in Boyer v. LouisianaBoyer had sat in jail for seven years awaiting trial for capital murder, a delay the state courts had found was caused by lack of funding for the attorneys appointed for him.  Upon closer review of the record, five members of the Court decide that the cause was delays sought by the defense - delays, the dissenting liberal bloc claims, which were sought because of the lack of funding.  The five hold sway, and the case is dismissed as having been improvidently granted, to resurface in another form on another day.  The one case decided by the Court was McBurney v. Young, in which the Court unanimously upheld Virginia's Freedom of Information Act, which limited access of government records to the state's citizens.  The Court noted that there is no constitutional requirement that a government open its records at all, a correct if troubling finding, and found that the limitation was not a violation of the Privileges and Immunities Clause, which is probably the last time in a while you're going to see any reference to that clause here, or anywhere else, for that matter.

Down in Columbus, the Olentangy Seven handed down several decisions in criminal cases - State v. Noling, which involves a death penalty case and DNA evidence, and State v. Deanda, the court's latest venture into the morass of law concerning lesser included offenses.  We'll discuss those at the end of the week.  The court also handed down a bevy of disciplinary cases, three of them showing what a randy lot attorneys appear to be.  The mildest was Cincinnati Bar Assn. v. Wieczorek, where the attorney's sexual dalliance with a client he was representing in a DUI case resulted in a public reprimand.  At the other end of the scale was the indefinite suspension meted out in Dayton Bar Assn. v. Greenberg, where the lawyer had sent video and pictures of himself masturbating to what he believed were 12- and 13-year old girls on the Internet, and which were, of course, undercover agents.  (I'm convinced there's a chat room on Yahoo where 12- and 13-year old girls pretend to be undercover agents.)  In the middle of the spectrum is Disciplinary Counsel v. Detweiler.  Detweiler had developed an interest in one of his divorce clients, but she proved unresponsive to his advances.  Apparently subscribing to the observation that not all poems are written with the pen, he sent her a picture of his erect penis.  The board had recommended that he be given a one-year suspension with six months stayed, but the court upped that to a full year's suspension, possibly prompted by the fact that Detweiler had been publicly reprimanded before for having sex with another divorce client.  Yo, dude, time to scale back on the Cialis.

Let's see which appellate court decisions, ahem, arouse our interest...

A trial court is not required to hold an evidentiary hearing on a motion for intervention in lieu of conviction, the 2nd District says in State v. Stanton... The 6th District is presented with an interesting question in State v. Boltz.  Boltz, charged with receiving stolen property of $650, didn't show up for his trial in September 2011, so he was charged with failure to appear.  That's a felony if you don't appear for a felony, but RSP of $650 became a misdemeanor in October of 2011.  The first question was whether Boltz was entitled to not only receive the penalty for a misdemeanor, but to have the crime classified as a misdemeanor as well.  The opinion contains a good recap of the split in the districts on that issue, and notes that the Supreme Court's accepted an appeal on it.  The court sides with those which have held that the defendant is entitled to have the offense classified as a misdemeanor, and makes the failure to appear a misdemeanor as well... The defendant tries to keep out a statement he made during a robbery, arguing that it's hearsay, but the 1st District in State v. Trowbridge correctly notes that a statement by a party isn't hearsay.  The statement?  Trowbridge had told the victim that she "had just gotten out of Marysville for doing the same thing"... In State v. Mullins, the 5th District rejects the defendant's claim of double jeopardy; he'd pled to a misdemeanor charge of receiving stolen property, then was indicted for breaking and entering in the same incident...

Isn't that why we have a court reporter?  In State v. Burchett, the defendant appeals the trial court's denial of his motion to withdraw his plea.  The court's opinion notes that "although the parties seem to remember having a hearing on the motion to withdraw appellant's guilty plea, neither the trial court nor any of the parties are able to provide a transcript of the hearing on the motion to withdraw appellant's guilty plea," so the 4th District reverses and remands the case back to the trial court to hold a hearing.

There's good news and bad news.  Well, good news not so much...  In State v. Rojas, the 6th District rejects each of the assignments of error arising from Rojas' conviction for multiple armed robberies and ensuing 71-year prison sentence, but notes that "the state has brought to our attention the fact that the trial court erroneously sentenced appellant to serve a nine-year prison term for Count 6, complicity to commit felonious assault, a second degree felony when the maximum sentence for a second degree felony is eight years," and so the case goes back for resentencing on that count.  The opinion also notes that before trial, Rojas was offered a deal where he would be allowed to plead to a single count, with the remaining charges dismissed, but Rojas declined, stating that "I would like to go to trial on all counts for interest in justice."  Indeed.

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