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Case Update

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SCOTUS concludes the month of May by clearing the table for its annual sprint to the finish line of the term in June -- decisions on affirmative action, gay marriage, and, in the criminal area, DNA testing and mandatory minimum sentences -- by handing out two 5-4 decisions in habeas cases, McQuiggins v. Perkins and Trevino v. Thaler In the former, the Court revisited the "actual innocence"  (also called "miscarriage of justice") exception to the procedural requirements for habeas relief that it had adopted prior to Congress' passage of the Anti-Terrorism and Effective Death Penalty Act in 1996, which codified those requirements and tightened many of them.   One of the latter was the imposition of a one-year statute of limitations for habeas claims.  The 6th Circuit had reversed the denial of a habeas claim, finding that a claim of "actual innocence" was an exception to that.  Without going into detail about its ruling, the Court in a 5-4 decision rejected the state's view that the exception was limited by a "due diligence" rule -- that the limitations period ran from the date when the petitioner could have discovered the factual basis for his claim by the exercise of due diligence.  It does Perkins little good; the district court had found that his evidence didn't establish actual innocence, and instead of affirming the 6th Circuit, the Court vacated and remanded the case back for consideration of the District Court's decision, indicating the unlikelihood of any basis for the 6th Circuit to vacate that.  And to give you a more complete idea of the futility of habeas since passage of the AEDPA -- the rate of success in non-capital cases hover in the low single digits -- actual innocence isn't enough:  you've still got to prove some constitutional violation.

Thaler deals with the ability of defendants to present claims in habeas of ineffective assistance of trial counsel.  That poses some implications for Ohio law, so I'll deal with that separately on Wednesday.

The Ohio Supreme Court finally came down with a couple of decisions, both unanimous.  In Dunbar v. State, the court rejected Dunbar's claim for compensation under the wrongful imprisonment statute.  That statute prohibits compensation to someone who has "pled guilty" to the offense, for obvious reasons, but the circumstances in Dunbar's case were unusual:  he'd initially pled guilty to a lesser charge, but the 8th District vacated the plea because the judge had given Dunbar two years in prison after promising him probation at the plea hearing.  On the remand, Dunbar went to trial and was convicted, but that was vacated on appeal, too, for insufficient evidence.  In affirming Dunbar's award, the 8th had held that his initial plea was void.  The Supreme Court holds that the plea was merely voidable, not void, since "void" proceedings are limited to where the trial court entirely lacks subject matter jurisdiction.  (The discerning reader will note that this conflicts with the entirety of the case law on post-release controls, but that's another story.)  Just because the plea was vacated doesn't mean it never existed, and Dunbar gets no money.

The Brown County prosecutor apparently has little to do:  back in April 2010, she had her grand jury indict five upper-level officials of the Division of Wildlife for obstructing justice for failing to properly discipline another wildlife officer who'd allowed a wildlife officer from another state to obtain a hunting license use the Ohio officer's home address so as to pay the resident fee of $19, instead of the nonresident license fee of $125.  At issue in State v. Graham was the use of statements made by the five officials during an investigation.  In Garrity v. New Jersey, the Supreme Court held that statements procured from government employees under threat of loss of their job if they don't cooperate were barred from use in a future criminal trial.  (The rule applies both to the statements themselves, and any evidence derived from the statements.)  That the employee was compelled to make the statement by the prospective loss of his job is the key here, and the court in Graham examines the law concerning the situation where the threat of job loss isn't explicit.  It adopts the rule that an employee claiming compulsion "must have in fact believed his statements to be compelled on threat of loss of job and this belief must have been objectively reasonable," and then finds that the threat here was explicit.  Go figure.

In the courts of appeals...

In State v. Jones, the 2nd District considers the question of when a probation officer can conduct a search of a probationer's home.  A warrantless search is permitted if the officer has "reasonable grounds" to believe that evidence of a violation will be found in the home, which is a lesser standard than probable cause...  The requirement of the failure to comply statute that any prison sentence has to run consecutively to a sentence for any other offense trumps the requirement in RC 2929.14(C)(4) that a judge has to make certain findings in order to impose consecutive sentences, the 8th District holds in State v. Foster... The 10th District comes to the same conclusion with regard to the requirement that a sentence for a post-release control violation must be run consecutively to a new felony in State v. Sheehi... The trial court could not impose both imprisonment and a no contact order, the 3rd District says in State v. Walton; the latter was a form of community control sanctions, and the court can't combine sanctions and a prison term at the same time on the same count...

In State v. Fraizer, the defendant, a masseuse who allegedly went a bit too far with a client, appeals his conviction for sexual imposition, arguing that there was no corroboration.  The 6th District finds that corroboration need not go to all the elements of the crime, and finds that the victim's boyfriend's testimony that when he picked her up immediately after the session she was "sullen and uncommunicative," and then told him what happened, was sufficient corroboration, citing cases holding that corroboration is established by "reasonably prompt reporting of the incident to one's family, friends or police"...  Although a defendant cannot be prosecuted for mere speech under the disorderly conduct statute unless the speech constitutes "fighting words," that does not have to be included in the complaint, the 3rd District holds in State v. Getzinger; it's sufficient if the complaint recites the language of the statute, with the inquiry of whether they constituted fighting words to be determined at trial...

Back to the books for you. In State v. Brown, the prosecutor tells the jury in closing argument that not only does the defendant have to prove his alibi (he doesn't), but that he has to prove it beyond a reasonable doubt.  The 5th District decides that this didn't merit a mistrial, since the court immediately sustained the defense's objection and told the jury to disregard the comments.

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