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Case Update

No decisions from SCOTUS so far this year, but arguments in several criminal cases.  One was in Burt v. Titlow, which I discussed here.  The other was three weeks ago in Kaley v. US, which involves the increasing use of an "asset freeze":  if a defendant is charged with offenses which can result in criminal forfeiture, the judge can enter an order restraining the defendant's assets.  When the Kaleys, husband and wife, were indicted in a complicated case alleging that they planned to steal and then resell prescription medical devices, the judge froze their $500,000 certificate of deposit.  The Kaleys argued this prevented them from hiring the lawyers of their choice, and the issue is whether the trial court was required to hold a hearing to determine if there was probable cause for the indictment, and thus the restraining order.  The issue is more difficult than it might appear, because it allows the judge to essentially overrule the grand jury's finding of probable cause, and would also allow the defendants a shot at the government's case.  No clear outcome emerged from the argument, but Breyer's suggestion of a hearing of limited scope might find five justices in favor of it.

The Court granted cert in one other case, which should have substantial impact in death penalty cases.  Six years ago In Atkins, the Court held that executing the mentally retarded violated the 8th Amendment, but left it largely up to the states to implement the decision.  That's been an uneven process; Georgia, for example, requires the defendant to demonstrate retardation beyond a reasonable doubt.  Hall v. Florida, the case accepted two weeks ago, involves Florida's decision to implement a "bright line" rule:  the death penalty isn't prohibited unless a person's IQ is 70 or below.  Perhaps the most telling aspect of Hall's case, though, is not the issue of his mental capacity, but the fact that he's been in prison since shortly after the crimes were committed - 35 years ago.

The Ohio Supreme Court was also busy, handing down a decision last week in State v. Clark, involving the question of whether a 3-year-old's statements to his teachers about child abuse were testimonial under Crawford.  We'll break that down on Wednesday.  In another decision, State v. Wesson, the post-release control silliness raises its head again.  Wesson was convicted of aggravated murder with the specification that the crime was committed while the defendant was under detention, in this case, post-release control.  The conviction for which Wesson was placed on PRC was burglary, a second-degree felony, which would have required a mandatory three years of PRC.  Horror of horrors, the judge imposed a discretionary three-year period.  This meant that PRC wasn't validly imposed, which rendered its imposition void.  Last year, in State v. Billiter (discussed here), the court vacated the defendant's conviction for escape for failing to report to his parole officer because PRC had been improperly imposed.  The same logic applies to Wesson's case:  since Wesson's PRC was void, the specification that he committed the crime while under detention had to go, too.  Doesn't do Wesson any good; he was convicted of two other capital specifications, and the court affirmed his death sentence.

We've got about three weeks of appellate decisions to work through, so let's take a look...

In State v. Fischer, the defendant takes a small arsenal - an AK-47 and a 40-caliber pistol, each with multiple clips of ammo - into a Walgreen's to rob the pharmacy.  As he's leaving, a police car pulls up.  Fischer pumps six rounds into the car; when the officer exits the car, Fischer fires a few shots at him.  The 2nd District finds these two latter events sufficiently separate to support convictions for vandalism and felonious assault.  To add insult to injury, the court rejects Fischer's argument that he shouldn't have been ordered to pay restitution and costs because he was indigent, finding that Fischer "should be able to pay some portion of the $6,025.18" over the course of his 50-year prison sentence.

In State v. Swihart, the defendant is convicted of aggravated vehicular homicide, and at sentencing, defense counsel objects to a statement in the presentence report that Swihart laughed during the trial.  The court doesn't address this in imposing a 54-month sentence, and the 3rd District vacates the sentence.  Why?  Because when a defendant asserts that an allegation in the presentence report is inaccurate, the judge must do one of two things:  make a finding as to the allegation, or determine that no finding is necessary because the judge won't take the allegation into account at sentencing. 

A trial court can't order restitution to a government agency for the money it spent on drug buys through an informant, the 6th District holds in State v. Williams... While RC 2935.03 prohibits an officer making a warrantless arrest and detention of a person outside his jurisdiction, his doing so isn't a constitutional violation, and isn't subject to suppression on those grounds, says the 10th District in State v. Wilson... In State v. Thompson, the 8th District notes that it takes more than pointing a gun at a person to constitute felonious assault, but it doesn't take much.  Shooting the gun will do, of course, but so will verbal threats, in this case, "I'll bust you"... RC 4513.263(F)(1), which bars evidence of failure to wear a seat belt except for a charge of failing to wear the belt, prohibited the defendant from introducing evidence in an aggravated vehicular homicide of whether the victim was wearing a seat belt at the time of the accident, the 3rd District rules in State v. Fetter...

The headnote says it all.  The Lexis summary for the 2nd District's decision in State v. Willis:

Evidence was sufficient to find defendant guilty of unlawful restraint under R.C. 2905.03 as he had no privilege to restrain child because he had no custodial rights; and, even if he had custody rights, he exceeded any privilege to restrain child when he obtained and maintained custody without mother's consent by shooting at her and her family.

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