Three decisions from SCOTUS this past week, one involving Federal pre-emption of state laws, another on patent exhaustion, and a third on bankruptcy defalcation. I'll wait right here while you scramble off to read them. Or, more likely, look up what "defalcation" means.
Back already? Okay. The more interesting news, in the now-you-tell-us category, was former Justice Sandra Day O'Connor's rumination that perhaps the Supreme Court shouldn't have taken Bush v. Gore. O'Connor's certainly not the first Supreme Court justice to publicly lament earlier decisions. Lewis Powell cast the deciding vote in the Court's 1986 decision in Bowers v. Hardwick, which upheld Georgia's sodomy law; Powell retired a year later, and told a reporter in 1990 that "when I had the opportunity to reread the opinions a few months later, I thought the dissent had the better of the arguments." And there's a fairly lengthy list of justices who came to have second thoughts about their votes in death penalty cases.
No second thoughts any of the justices down in Columbus, or at least none that they're sharing with us. The only criminal decision was State v. Athon, which we discussed on Friday. Some interesting cases in the court of appeals, though...
In re M.K. presents the question of whether the concept of allied offenses applies to juvenile court delinquency proceedings. There's a lot of case law which holds that it doesn't, on the basis that juvenile proceedings are not really "criminal" in nature, but are intended to help and rehabilitate the juvenile. M.K. argues that those cases were decided back when that was actually true: with mandatory bindovers, serious youth offender (SYO) sentences, and the ability of the trial judge to convert an SYO sentence into an adult sentence, the system is now more punitive, and should recognize allied offenses. The 6th District grudgingly rejects the argument, but leaves for another day the question of whether allied offenses analysis would apply if the judge did indeed impose an adult sentence.
One of the problems in plea withdrawal hearings is figuring out precisely what the role of counsel is: does the attorney argue in favor of allowing the client to withdraw the plea that the attorney just worked out? And what happens when the client claims that the attorney pressured him into taking the deal, or didn't adequately explain it? The attorney can hardly be expected to take his client's side and throw himself under the bus, but if he doesn't advocate for the client, who does? The 9th District takes a look at that in State v. Oliver. When Oliver made the claims about coercion and lack of explanation, the judge called his lawyer to the stand and asked him questions about it, and the lawyer denied Oliver's allegations. That obviously meant that Oliver was no longer being "represented by counsel," and both parties spent a large portion of their brief arguing about whether a motion to withdraw a plea hearing was a "critical stage of the proceedings," at which Oliver was entitled to counsel. (Like there should be any question about that.) The court sidesteps that question, deciding that Oliver was denied the assistance of counsel because he wasn't given an opportunity to cross-examine his lawyer.
In Parma v. Benedict, the 8th District rejects the defendant's argument that his attorney was ineffective for failing to tell him that a guilty plea to a DUI would result in the automatic suspension of his commercial driver's license. That brings up the issue of the lawyer's duty to advise his client of the collateral consequences of a conviction. The Supreme Court addressed that in Padilla v. Kentucky, holding that advice about the possible immigration consequences was required, but the Benedict court applies that decision very narrowly, limiting it to immigration. Whether that's the correct interpretation is another matter; the panel's claim that a CDL suspension "is a civil, collateral consequence that is of the type courts have excluded as the basis of ineffective assistance claims" is supported only by a reference to Alito's concurring opinion in Padilla. Part of the problem might be inadequate development of the argument; according to the opinion, the treatment of this in Benedict's brief consisted of a single two-sentence paragraph, without any reference to Padilla.
Imagine if he'd been from the IRS. Sometimes the Lexis headnote says it all. That certainly looked to be the case in the 3rd District's decision in State v. Hadley:
The trial court did not err by denying defendant's request to instruct the jury on the presumption of self-defense (castle doctrine) under R.C. 2901.05(B)(1) because no rational juror could have found that defendant's use of a baseball bat against the victim, a census taker, was reasonably necessary or proportionate to the apparent danger.
It turns out, though, that Hadley represents one of the most extensive analyses of the Castle Doctrine, and especially the methods of rebutting the presumption of self-defense that it creates. We'll talk about that more on Thursday.