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Case Update

Phrase for the day:  "link rot."  According to this article from the New York Times, that's a current problem with Supreme Court opinions:  since 1996, the Court has cited to materials found on the Internet a whopping 555 times.  (Although it would certainly be more interesting to the tinfoil hat crowd if the number were 666.)  Half those links no longer work.  Like the one in a 2007 opinion which ruled against a driver's claim that the police had used excessive force in stopping him from fleeing the scene of a crime by ramming his car.  There was a video of the police pursuit submitted to the Court, and the opinion links to the video.  Scalia called it "the scariest chase I ever saw since the 'The French Connection,'" and Breyer suggested in a concurrence that readers watch it.  It's not there anymore.  Thank goodness, a consortium of law libraries is working on creating a permanent link that can be used by writers and courts, so it's quite possible that future generations will be able to read my musings here.

The Supreme Court kicks off the 2013 Term on October 7, and Burt v. Titlow is the lone criminal case scheduled for argument that week.  As I mentioned when I did my preview three weeks ago of the criminal cases on the Court's docket so far this year, Titlow presents a reverse-Lafler issue:  instead of claiming, as the defendant in Lafler did, that his lawyer was ineffective for recommending that he go to trial, Titlow contends that his lawyer screwed up by allowing Titlow to withdraw his plea, resulting in Titlow getting 20-40 years instead of 7-15.  It should be an interesting oral argument.

The Ohio Supreme Court handed down a couple of decisions last week.  In his dissent from the 4-3 decision in State v. Pariag, Pfeifer argues that the court should have never taken the case, and it's hard to quibble with that.  Pariag had been arrested after a traffic violation when a search of the car revealed marijuana and drug paraphernalia.  The drug charges were dismissed when Pariag pled no contest to the traffic offense.  When he sought to have the record of the drug cases sealed, the State countered that he couldn't do that because RC 2953.61 provides that when a defendant is arrested on multiple offenses, he can't move to seal the records of any of the cases until all of the cases can be sealed.  The logical purpose of that is to prevent a defendant from sealing the records of one of the offenses while others are still pending.  But traffic offenses can never be sealed -- because, as Pfeifer notes, nobody cares about your traffic offenses -- so, the State argues, neither can Pariag's drug offenses.  Six judges rejected this argument, while only five bought it.  Four of those five, though, sit on the Supreme Court.  This will have little consequence for most people, and the people for whom it will be of consequence will probably develop blisters from scratching their heads when their lawyers try to explain it to them.

State v. Kareski was the "lite beer" case (post on oral argument here):  The State charged Kareski with selling a lite beer to a minor, but didn't bother to bring in an expert to testify as to an element of the crime, namely that the item contained more than 1.5% alcohol.  The 9th District found that the trial judge was wrong in taking judicial notice of this, and remanded for retrial.  By a 6-1 vote, the Supremes decided this was a no-no.  Four years ago in State v. Brewer, the court held that an appellate court could consider evidence which was wrongly admitted in deciding whether there was sufficient evidence to support the verdict, but here it decides that this doesn't apply to matters taken by judicial notice, and thus double jeopardy bars Kareski's retrial.  Pfeifer cements his standing as one of my favorite opinion-writers by beginning the majority opinion with, "A confidential informant and two Ohio Department of Public Safety ("ODPS") agents walk into a bar."  What, no rabbi?

In the courts of appeals...

Things we learn from the 2nd District's decision in State v. Johnson:  A guilty plea waives a statutory speedy trial argument, and some districts (the 1st) have held that it waives a constitutional speedy trial argument, but others (the 8th) have held that it doesn't.  But, the 2nd (which has decided the issue both ways) says, there's a catch:  a constitutional speedy trial claim is not waived if the defendant claims that the ineffective assistance of counsel in failing to raise the claim is what caused him to plead guilty.  Doesn't do Johnson any good; the court decides that the record doesn't support a claim that his counsel was ineffective for not raising the claim, because the claim was bogus.

The trial court sentences your client to consecutive sentences without making the necessary findings.  Should you object?  And if you don't, does that waive the argument? 

Up until last week I would have recommended that you enter a general objection, something along the lines of, "for the record, your Honor, we object to the imposition of consecutive sentences."  Then I was reviewing the transcript of a sentencing for an appeal I was handling and got my hopes up when I saw that the judge imposed consecutive sentences without making the findings.   The defense attorney, one of the best I know, then made the very same general objection which I would have recommended, at which point the judge then proceeded to read verbatim the findings required by the statute.

What happens if you don't object?  That's raised in the 10th District's decision in State v. Hunter, with the State claiming that the failure to object means the appellate court should apply a plain error standard.  While that standard requires a showing of manifest injustice, the 10th skipped over that part, noting that it had held that failure to comply with the requirement of findings for consecutive sentences was plain error as a matter of law.  I haven't seen a court uphold consecutive sentences on grounds that a defendant waived the issue by not objecting, and so at this point I'd tentatively recommend that you keep silent if the judge hasn't made the necessary findings.

The admission of a statement documenting the inspector's certification of a breathalyzer machine was non-testimonial under Crawford, the 3rd District says in State v. Dial... In State v. Chisolm, the defendant was arraigned on December 20, 2012, and had no contact with his public defender until the pretrial on February 29, 2012.  The 9th District finds a speedy trial violation, although by a 2-1 vote; the dissent says that defense counsel was responsible for the delay, and her neglect should be imputed to the defendant, so that entire period counts against him... Dueling courts:  the defendant caused a fatal accident in Paulding County, and was taken to a medical center in neighboring Defiance County.  The police asked a judge in Defiance County for a warrant to seize the defendant's blood samples, but he refused, saying that the accident happened in Paulding, so the police got a warrant from a judge in Paulding.  No good, says the 3rd District in State v. Dulaney; the judge in Paulding County had no jurisdiction to sign a warrant authorizing a seizure in Defiance County, and the panel holds that the judge was thus not a "magistrate" for 4th Amendment purposes... 


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