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Case Update

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There are several cases that were argued before the Supreme Court back in January and February where we're still awaiting opinions -- cases on the application of Blakely to minimum sentences, whether DNA samples can be obtained from anyone arrested for a crime, a judge's participation in plea bargaining -- but the Court can work quickly when it wants to.  Just one month after argument, the Court hands down its decision in Metrish v. Lancaster.   Lancaster had been tried in Michigan for murdering his girlfriend in 1995, and the jury convicted him, rejecting his defense of diminished capacity.  The conviction was reversed, but by the time his second trial was to begin, the Michigan Supreme Court had declared that the defense could no longer be recognized.  He claimed this violated his rights; there is case law holding that the retroactive abolition of a defense by a court is a due process violation, akin to a legislature passing an ex post facto law doing the same thing.  The Court opted to write narrowly, Ginsburg's opinion for a unanimous Court saying little about retroactivity, and instead focusing on the fact that the state supreme court's intervening decision was based on its conclusion that the legislature had actually abolished the defense back in 1975.  The Ohio Supreme Court specifically rejected the defense back in 1982.

Speaking of the Ohio Supreme Court, back when I started this blog, I also did stuff on civil cases, like personal injury.  I was reminded of that by the only decision by the court last week, Marusa v. Erie Ins. Co., which was a sequel to the decision in Snyder v. American Family Ins., which I discussed when it came down back in 2007.  Snyder held that an insurance company could exclude from its definition of an uninsured motorist a tortfeasor who was exempt from liability on sovereign immunity grounds; Marusa holds that if the insurance company does include such a tortfeasor in its definition, it does have to pay.  That might seem self-evident, but the decision was only 4-3.  The majority opinion also served to remind me why I stopped writing about stuff on civil cases, specifically, this sentence: 

Fortunately, the long and tortured history of this court's jurisprudence regarding uninsured/underinsured-motorist ("UM") insurance coverage need not be retold for us to resolve the case before us.

By comparison, allied offenses or disproportionate sentencing is a walk on the beach.

Now, let's take a walk through the courts of appeals...

Ohio's drug laws elevate the crime one degree if the offense is "committed in the vicinity of a juvenile."  That's defined as being within 100 feet of the juvenile, and it doesn't matter whether the offender knows the age of the juvenile, knows the offense is being committed within one hundred feet of the juvenile, or even whether the juvenile actually views the commission of the offense; theoretically, a defendant could be convicted of the offense if, unbeknownst to him, there was a juvenile in the house next door.   Or if the "juvenile" hasn't even been born yet:  in State v. Brumbaugh, the 2nd District holds that an unborn fetus which was delivered sixteen days after the drug deal qualifies, based on the definition of "person" in the criminal code, which includes "an unborn human who is viable."

The 2nd District makes up for that in State v. Howard.  During a patdown, a police officer removed a small container and opened it, finding cocaine powder.  The trial court upheld the search based on the officer's claim that suspects sometimes hid razor blades in "small areas."  The 2nd tossed the search, correctly noting that if the police could use this to justify a search, "it reasonably could justify almost any search." 

An interesting decision in State v. Slane, where the 10th District reverses and remands because the trial judge imposed consecutive sentences without making a finding that they were not disproportionate to the seriousness of the offender's conduct and to the danger he poses to the public.   What's interesting about the case is that the State conceded the error.  Given the current state of the law on consecutive sentencing, I'm not sure there is any such thing as an error that should be conceded.

Most people charged with drunk driving would be happy if it got reduced to physical control, but not the defendant in State v. Taylor; after he tried the DUI case to the bench and the judge found him not guilty of that but guilty of physical control, he appealed, arguing that the latter wasn't a lesser included offense of DUI.  The 9th District agrees, finding that while one can be convicted of DUI for operating a bicycle, that wouldn't qualify under the physical control section; thus, it is possible to commit a DUI without also committing a physical control violation, and so the latter isn't a lesser included.  Note that this is only for trial; it doesn't preclude a court from accepting a reduction from DUI to physical control, because the courts have held that the defendant's agreement to the plea constitutes a waiver of any claim that the pleaded offense isn't really a lesser included of the original charge.

Yeah, that'd do it.  This week's "The Headnote Tells the Story" comes courtesy of the 5th District's decision in State v. Simon:

An OVI conviction under R.C. 4511.19 was supported by evidence showing that defendant had bought and consumed alcohol on night in question, that she backed up while people were near her car and turned her wheel in such a manner as to endanger people, and that she disregarded the many screams to stop after she struck the victim and drove over him.

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