Case Update
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...
Comments