The justices of the Supreme Court hold their first conference today; opening arguments scheduled for next Monday, marking the formal beginning of the 2013 Term. Maybe; the Court issued an announcement last Friday that, in the event of a government shutdown caused by the Congressional impasse over the budget, it will continue its normal operations through October 4; after that, it's up in the air.
There's a bit of irony in the fact that one of the cases scheduled for oral argument on Monday is Town of Greece v. Galloway, which features the question of the constitutionality of prayers before legislative sessions. The genius of Madisonian democracy is the balancing of powers, essential to the prevention of tyranny. But it requires compromise; otherwise nothing gets done. The hyperpartisan nature of politics today precludes that, and anymore it feels like only divine intervention will prevent our political system from descending further into dysfunctionality.
We now return to our regular programming.
One nice thing about having Ohio's having both the legislature and the governorship in the same party's hands - perhaps the only good thing - is that we don't have to worry about a government shutdown. The Ohio Supreme Court will have oral arguments next week, too, with two criminal cases on tap. State v. Anderson concerns the issue of whether a denial of a motion to dismiss based upon due process and double jeopardy principles after a hung jury is a final appealable order. The Ohio courts have customarily held that a defendant in such cases has to endure another trial before having the issue resolved, but a few years ago in State v. Chambliss the court made an exception for cases involving removal of an attorney. We'll see if it extends that exception. State v. Romage seeks to resolve the conflict between the districts over the constitutionality of RC 2905.05, the criminal child enticement statute. The statute provides that "no person, by any means and without privilege to do so, shall knowingly solicit, coax, entice, or lure any child under fourteen years of age to accompany the person in any manner." That arguably would make helping a 10-year-old across the street a crime, and several courts have held that it is unconstitutionally overbroad. We'll talk about it some more next week.
In the courts of appeals...
In Crawford v. Washington, the Supreme Court held that "testimonial statements" - essentially defined as statements made to law enforcement agents for purposes of investigation and prosecution of the crime - could not be admitted at trial unless the person who made the statement was subject to cross-examination. In subsequent decisions, the Court has suggested that this doesn't apply to statements which were admissible as hearsay at common law. In State v. Kennedy, the 1st District holds that one statement which is not testimonial under Crawford is a dying declaration, and there's a substantial body of case law to support that.
One of the exceptions to the "mandatory probation" feature of RC 2929.13(B)(1) is that the defendant violated a condition of bond. In State v. Hughey, the 10th District affirms an 11-month sentence for a felony five conviction of heroin possession because the defendant overdosed on heroin while he was awaiting sentencing. Yes, I guess that would do it. Word to the wise: The court also notes that since defense counsel didn't object to the imposition of a prison sentence, it's reviewed for plain error.
The 10th District's ruling in State v. Radovanic is a bit more troubling. Radovanic filed a motion to vacate her plea, claiming that she did not know that her plea to theft by deception would impinge upon her ability to work in the home health care field. The court finds that this was amply discussed at the plea hearing, and that's fine. The part I have difficulty with is the court's conclusion that the trial judge had no duty to advise Radovanic of thecollateral consequences of her plea. The trial judge may not have had a duty to do that, but in light of Padilla v. Kentucky, it's at least an open question of whether her attorney had a duty to do it.
A nice result in the 5th District's decision in State v. Bays. Bays, who was indigent, was charged with the sale of various synthetic drugs, and the trial court denied his motion for appropriation of funds for a defense expert. He was convicted after a prosecution expert testified as to the nature of the drugs and their potency. The appellate court reverses, finding that refusal to fund experts for Bays' defense denied him due process of law. Especially when the state had an expert, yeah, that's a tad unfair.
A guilty plea waives a claim of ineffective assistance based on failure to file a motion to dismiss for speedy trial, the 2nd District holds in State v. Bateman... A magistrate has no authority to impose a sentence, even if the defendant agrees to it, says the 8th District in Berea v. Collins... In State v. Nieves, the 9th District finds that the judge erred in granting a judgment of acquittal in a rape case on the basis that there was no penetration; the victim's testimony was that the defendant put his penis between the victim's labia, and that's all the law requires. Of course, this doesn't affect the outcome of the case; a retrial would be barred by the double jeopardy clause...I guess it was crowded. In State v. Onunwar, the defendant seeks to reopen his appeal three years after the court affirmed his conviction of murder, claiming as justification for his failure to file the motion within the 90 days allotted by the rules the fact that his access to the law library was limited. The 8th District proves unsympathetic, noting that better excuses, like a prison riot or lockdown, have been rejected.