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Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Case Update

Among the Supreme Court cases to anticipate next term are several dealing with the detritus left over from past decisions.  One, Schuette v. Coalition to Defend Affirmative Action, seeks to challenge Michigan's Proposal 2, which amended that state's constitution to prohibit any public government or institution from "discriminating against, or granting preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin."  That's pretty close to the language found in several portions of the Civil Rights Act of 1964, but the 6th Circuit struck down the Michigan amendment by an 8-7 en banc vote, along purely party lines.  The 6th has become a co-punching bag for the Court, along with the 9th - since the 2008 term, the Court has reversed the 6th in 24 out of 25 cases - and I don't imagine this case will break that mold.  The Court will also decide whether to hear Liberty University v. Lew, a challenge to the Affordable Health Care Act's mandate that employers provide a minimal level of health insurance for their workers; Liberty University is contesting the requirement that the insurance provide contraceptive coverage, claiming that violates its religious beliefs.

Freedom of religion is also at the forefront of Elane Photography v. Willock.  Willock had sought to have the shop do the photographs of her wedding, but when the shop found that Willock's intended was another woman, it backed out, the couple who run the company claiming that taking photographs of the wedding would conflict with their religious beliefs that marriage is union of a man and a woman.  The New Mexico Supreme Court rejected the argument, finding that refusal would have violated New Mexico's "public accommodations" law, the same way that a refusal to take photographs of an interracial marriage would.  There are some interesting First Amendment issues, and not only on religious grounds.   Elane Photography contends that there's a free speech issue here, too:  their work is a form of artistic expression, and requiring them to photograph the wedding is compelled speech.  We'll see if the Court takes it. 

Nothing new in the Ohio Supreme Court, so let's head over to the courts of appeals.

In State v. Richards, the defendant seeks a petition for DNA testing regarding his 1987 murder conviction, but the judge denies it in a journal entry simply stating that he finds that the DNA results would not be outcome-determinative.  Not good enough, says the 8th District:  while that's the requirement for testing, the judge has to explain his reasons for concluding that it wouldn't change the outcome of the case.  A couple more takeaways:  If an indigent defendant is entitled to an evidentiary hearing on a post-conviction relief petition, he's entitled to representation by the public defender if the public defender decides the issues raised have arguable merit.  And you can't appeal the denial of a motion to recuse a judge; the exclusive remedy is to file an affidavit of disqualification with the Supreme Court.

In State v. Byrd, the 6th District takes up the issue of disqualification of retained counsel.  Byrd's attorney had initially signed on to represent Byrd and two other defendants charged with multiple counts of rape, but withdrew from representing Byrd and one of the others when it became likely that a conflict of interest would arise.  Subsequently, the lawyer called Byrd and encouraged him to fire his new lawyer so that the defendants could provide a "unified" defense.  The 6th holds that the State had standing to seek disqualification, and that disqualification was warranted because counsel's violation of the rule prohibiting contact with a represented party undermined the integrity of the trial court's proceedings.

You can run sentences consecutively, but there's no statutory provision for running driver's license suspensions consecutively, says the 2nd District in State v. Stephens; the court had imposed a two-year suspension for a drug trafficking conviction, and another three years for failure to comply, and ordered them to be run consecutively... In State v. Bork, the 6th District becomes the latest court to hold that Supreme Court's new test for allied offenses announced in State v. Johnson in 2010 doesn't apply retroactively; the defendant had argued that his 2007 convictions for rape and abduction should have merged under Johnson... The purchase of lye and a vehicle registration in a different county didn't provide reasonable suspicion of criminal activity -- meth production -- for a traffic stop, the 9th District holds in State v. Taylor... The 10th District finds in State v. Evans that a trial court abused its discretion in granting an expungement of a misdemeanor conviction for patient abuse, because the trial court didn't make a finding that the defendant had been rehabilitated...

Beam me up, Scotty.  In State v. Gunnell, the 10th District rejects Gunnell's "sovereign citizen" argument that the trial court which found him guilty of failing to register his car lacked subject-matter and personal jurisdiction over him, and summarizes Gunnell's argument:

Appellant cites to a Uniform Commercial Code ("UCC") filing (a UCC-1 financing statement) in which the name of the debtor is listed as "KEVIN BRIAN GUNNELL" and the name of the secured party is listed as "Kevin Brian Gunnell." Appellant refers to the all capital letters "KEVIN BRIAN GUNNELL" as an "[a]rtificial [p]erson," separate and distinct from "Kevin B. Gunnell, secure party creditor, natural man, sovereign." In his motion to dismiss, appellant argued that "Kevin B. Gunnell, secure party creditor, took control of the ALL-CAPS strawman name, KEVIN B. GUNNELL, by recording a lien against it, that's superior to the lien that the corporate government had against the strawman name."


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