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Case Update

The only nondysfunctional branch of government begins its 2013 Term this morning.  The Federal courts have enough money to run through October 10, and it'll be longer than that before they shutter the Supreme Court.  But with the shutdown fight merging into the debt limit fight, there's that possibility.

There's an argument that the Supreme Court isn't functional, either, that it's far exceeded the role contemplated by the Framers.  There's no little truth to the observation that for the past 25 years, America has been a country run first by Sandra Day O'Connor and then by Anthony Kennedy.  Dahlia Lutwick has a superb article in Slate, outlining how O'Connor's replacement in 2005 by Sam Alito has shifted the court sharply right on five major areas of constitutional law:  abortion, affirmative action, campaign finance reform, church/state relations, and congressional power to remedy discrimination.  You could make a pretty good argument that 2016 will be one of the most important presidential elections in our lifetime, if only because the winner will very probably get to select the person who replaces Anthony Kennedy, who will be 84 when that presidential term ends.

And it's likely to get worse, assuming that a supposed democracy being run by nine people appointed for life is "worse."  The Framers spent little time on the judiciary branch; perhaps the best indication is that the simple question of whether the Supreme Court can declare a law of congress unconstitutional seems to have escaped them.  They were far more worried about the Executive branch seizing power, so they set up a complicated system of checks and balances with Congress to make sure that couldn't happen.  But that means to get anything done, both sides have to work together.  That's not happening, and barring some major event, I don't see that changing.  Politics, like nature, abhors a vacuum; if the other two branches don't do anything, the Supreme Court, to the extent that it can, will step into the breach.

Nothing out of Columbus, so let's see what the courts of appeals have wrought over the past week.

Last spring, in Bailey v. US, the Supreme Court tackled the issue of the right of the police to detain occupants of a house while executing a search warrant, when the occupants have left.  In Bailey, the occupant had driven away from the home and was stopped about a mile from the scene.  As I mentioned when I discussed the case, the district court had found the stop justifiable as a Terry investigative stop, but it was never addressed by the courts after that.  (Probably because it went far beyond what a Terry stop would've entailed.)  The 2nd District notes that distinction in State v. Burdette.  When the police went to execute a search warrant for drugs, they observed Burdette go into the house and come out a short time later, then loiter around the premises, talking to other people as they came and went.  The 2nd District finds this created reasonable suspicion for detaining Burdette, and concludes that, although both sides briefed Bailey, it was unnecessary to consider it. 

In State v. Crawford, the police had come to a residence to execute a search warrant; when Crawford saw them approaching, he yelled, "police" and slammed the door.  The 2nd District finds this insufficient evidence to convict Crawford of obstruction of justice.  That offense requires an affirmative act, and the court decides that Crawford's acts "amounted to no more than a refusal to cooperate with the officers."  That's one of those cases it's real nice to have if you get a case like this.  Whatever your client did, you start with the bar being that yelling "police!" and slamming a door isn't an "affirmative act."

RC 2907.323, which prohibits the possession of any material showing a minor in a state of nudity, doesn't specify a mens rea element, so the Supreme Court has held that the degree of culpability is recklessness.  But recklessness as to what?  In State v. Thomas, the defendant argues that the State has to show recklessness both as to possession and to knowledge that the person portrayed was a minor.  The trial court had prevented Thomas from making that argument to the jury, but the 12th District concludes that he should have been allowed to.  Most sex offense statutes explicitly provide that mistake as to age isn't a defense, and I wouldn't be surprised to see changing this on someone's legislative agenda.

Something that's sure to come up, oh yeah:  In Mayfield Heights v. Brown, the 8th District holds that if a defendant's conviction is reversed and she's convicted on the retrial, she can't be charged with costs for the first trial... In State v. Milby, the 12th District rejects the argument that the trial court should have held a Daubert hearing on Shaken Baby Syndrome, finding that while there is disagreement on the diagnosis, it is "an accepted theory in this state and others"...

Much ado about nothing.  I'm not sure what qualifies as the most ridiculous case I've seen on post-release control, but the 10th District's decision in State v. Wilcox is certainly in the top ten.  The court spends five pages deciding that Wilcox is entitled to a resentencing, the sole purpose of which will be to impose post-release controls.  This, after we learn in paragraph 2 that

On August 31, 2005, the trial court entered a judgment in which it found appellant guilty of six counts of aggravated murder, one count of attempted aggravated murder, two counts of kidnapping, one count of aggravated burglary, and one count of aggravated robbery, and sentenced appellant to two life sentences without parole plus an additional 43 years of incarceration, to be served consecutively.


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