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Case Update

The Supreme Court's not in session anymore, so the news on the Federal court level comes not from Washington, D.C.  It comes from right here in Cleveland.  The other day, a friend of mine called the Federal Defender's office about the annual seminar they put on in August.  She got a message saying that the woman she called was on furlough last week.

She wasn't the only one.  A year ago, after the latest budget debacle, the people who pretend to govern us decided that the best way out of the impasse was to put six Democrat and six Republican congresscritters in a room, with the threat that if they didn't agree on a budget, there'd be an automatic across-the-board cut.  Everybody figured that Republicans would agree to tax cuts because they didn't want to see reductions in the defense budget, and Democrats would agree to smaller tax cuts because they didn't want to see reductions to social spending.  Of course, this scenario depended upon the participants having a collective maturity greater than what would be normally found in a first-grade classroom, so the cuts went into effect.  The EPA, the Pentagon, the Transportation Safety Administration, all of them felt the axe.

And so did the judiciary system.  Back in April, a judge in New York City delayed the terrorism trial of Sulaiman Abu Ghaith, one of Osama bin Laden's top propagandists, until next year because the budget cuts required all Federal public defenders to be furloughed for more than five weeks by the fall.  The death penalty habeas proceedings for Keith Nelson, who killed a 10-year-old in 1999, have been halted because Nelson's Federally-funded lawyers don't have the money to pay for travel and witness fees for a key hearing this month.  And that's this year.  The Federal Defenders' Office has been informed that their budget for next year will be cut by almost a quarter, causing the layoff of between a third and a half of the staff.

Hopefully, there will be fewer cases to defend.  A bi-partisan panel selected by the House Judiciary Committee is studying the overcriminalization of Federal law, and unlike the bipartisan panel previously mentioned, seems to be finding some areas of agreement.  They should:  conservatives can't be happy about the intrusion of the Federal government into areas of criminal law which are traditionally the bailiwick of the states, and liberals can't be happy about many of the Draconian penalties found in the Federal criminal statutes, particularly in drug laws.

We talked about the sole decision of the Ohio Supreme Court on criminal law last week, State v. Lalain, on Thursday, so let's get to the appellate court decisions.

Normally, a police officer would need a warrant to enter a hotel room and search it.  But not when the officer reasonably believes that the room holds a meth lab, the 9th District holds in State v. ArmbrusterThe outcome is largely based upon RC 2933.33, which declares that "the risk of explosion or fire from the illegal manufacture of methamphetamine causing injury to the public constitutes exigent circumstances," thereby dispensing with the need for a search warrant.  It might seem a bit unsettling for a legislature to flatly declare that a certain situation automatically creates exigent circumstances exempting a search from the usual strictures of the 4th Amendment, but a number of other states have reached the same result by judicial decision.  The key is that there's an active lab on the premises; seeing people simply taking the ingredients for meth into a house isn't sufficient.

Sometimes you can push too hard.  In State v. McComas, the defense attorney gets the detective to acknowledge on cross-examination that McComas offered to take a polygraph exam.  No objection was made to that, but the lawyer pursued the subject for several more questions, finally eliciting an objection when he asked whether a polygraph would have been helpful.  The prosecutor didn't request a curative instruction, but the next day moved for a mistrial, which the judge granted.  Deciding whether to grant a mistrial is one of those things that are reviewed for abuse of discretion, and the 5th District rejects McComas' contention that the judge abused his discretion here, leaving intact the result of McComas' second trial:  a guilty verdict, and a 25-to-life sentence. 

Things you may not have known.  As the 5th District explains in State v. Hare, the Supreme Court's decision in State v. Johnson, creating a new test for allied offenses, is not retroactive; if the defendant's conviction became final before Johnson, he's out of luck... A judge doesn't have to advise a defendant during the plea hearing that there's a presumption of imprisonment for a 1st or 2nd degree felony, the 8th District holds in State v. Raymond.

Every pound of flesh.  The issue in State v. Campbell is the trial judge's decision whether to impose the mandatory fine for 3rd degree felony drug trafficking, given the fact that Campbell had diabetes, high blood pressure, nerve damage, a torn rotator cuff, anxiety, and acid reflux, and was taking Metformin, Glipizide, Celexa, Presidone, Lisinopril, Clonidine, Hydroxyzine, and Ranitidine.  The judge decided not to impose the fine.  The State appealed.  The 12th District affirmed. 

Here's some good times at a medical malpractice deposition.


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