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Case Update

There's a tendency among criminal lawyers to focus on how substantially the US Supreme Court's decisions have affected their practice, but the Court's grant of certiorari in eight cases last week serves to remind us of the breadth of the Court's jurisdiction:  two patent cases, one involving Argentina's default on its debt, and one involving Internet streaming of television shows.  The closest thing to a criminal case is one involving whether a Federal Court has to hold a hearing to determine if the IRS can demand tax data by issuing a summons.   

In fact, the month ahead isn't going to offer much in the way of criminal cases, either.  There's one to be argued on Wednesday, US v. Castleman, about the Federal statute's bar on gun ownership by one convicted of a misdemeanor offense of domestic violence.  The statute defines a misdemeanor crime of domestic violence as one which has as an element "the use or attempted use of physical force."  As those of us who have handled such cases know, the "force" necessary for conviction can be minimal; as the district court in Castleman put it, many such statutes use "force as a scientific concept relating to the movement of matter."  That court, and the 6th, held that the statute requires "force in the sense of violent contact."  Haven't read the briefs, haven't heard the argument, but I'm taking the government and giving the points.

The Ohio Supreme Court had oral argument last week in State v. Johnson, which I very briefly previewed thusly in last Monday's Case Update:  the case "addresses the question of whether an appellate attorney is allowed to see the presentence report."  Yeah, I know:  you mean there's an argument that he shouldn't?   Well, the State apparently thought so, but that was an opinion apparently not shared by any of the justices.  You can catch the oral argument here, and I'd suggest you skip ahead to the 18:25 mark.  That's where the State's attorney tries to explain why the defendant's trial attorney, the defendant, and the court of appeals is allowed to see the presentence report, but the defendant's appellate attorney shouldn't be.  I watched the whole thing, and it sounded like something out of a Joseph Heller novel.

The 9th District's decision in State v. Furman demonstrates the significance of the presentence report on appeal.  Furman, a home health-care aide, was taking care of James Allen, an elderly man, and told a friend, Louthian, how he could enter Allen's house and where he could find items of value.  Louthian did so, assaulted Allen, and stole some property.  Furman pled guilty to aggravated robbery and aggravated burglary, and notwithstanding the fact that it was Furman who contacted the police and told them of Louthian's role, she was sentenced to 18 years in prison for her part in the scheme.   The panel rejects her argument on appeal that the offenses should have merged, noting that the pre-sentence investigation report would have contained facts by which the appellate court might make that determination.  Furman, though, hadn't sought to have the PSI included in the record on appeal; the court decided that it was her burden to do so, and her failure meant that the court had to presume the validity of the trial court's determination.  So if you're handling an appeal, make sure the PSI is included in the record.

Everybody knows that a prosecutor can't comment on a defendant's exercise of his right not to testify, but prosecutors often try to skirt that by telling the jury that the victim's testimony is "unrefuted."   That's generally been allowed, but in State v. Barnes, the 2nd District notes an exception:   a prosecutor can't claim that evidence is uncontradicted where only the defendant could contradict it.  That's what happened in Barnes:  he was accused of gross sexual imposition for touching a 12-year-old, and there were no witnesses or evidence to the incident other than Barnes and the girl.  The panel found that the prosecutor's statement that the girl's testimony was "unrefuted" was improper, and reversed.  Oh, silly me, what was I thinking?  It held that the comment, while improper, didn't rise to the level of plain error because the judge instructed the jury not to consider Barnes' decision not to testify for any purpose, and they surely followed the instruction, so that's that.

In State v. Betz, the 6th District tackles the problem of third-party contacts with jurors.  Shortly before Betz was to present his defense, one juror observed Betz's daughter and daughter-in-law watching her, then later taking down the juror's license plate number.  During deliberations, she relayed this to the other jurors; an hour later, they returned a verdict of guilty.  The panel reverses, finding that the trial court erred in not questioning the jurors about their ability to be fair and impartial after the contact.  Interestingly, the defense had apparently acquiesced in the failure to inquire, out of fear that examination might increase the prejudice to Betz.

If there's any lingering doubt about the pointlessness of resentencing for purposes of properly imposing post-release controls, the 5th District's decision in State v. Miller pretty much disposes of it.  Miller was convicted of burglary in 2005 and sentenced to eight years in prison, but the court brought him back in 2013 because he hadn't been properly notified of PRC.  Well, it didn't bring him back; it conducted the resentencing by video.  CrimR 43(A) requires that the defendant be physically present at sentencing unless he waives that and agrees to appear by video.  Miller didn't, but the appellate court decides it doesn't matter:  since the only purpose of the hearing is to perform the utterly perfunctory task of imposing PRC, there's no way that the outcome would have been different had Miller been physically present, so his absence is harmless error. 

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