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Case Update

It's the last month for oral argument in the Supreme Court's 2013 term, and next week features a big 4th Amendment issue:  in two cases, the Court will consider whether police need a warrant to search the contents of a cellphone incident to the owner's arrest.  This week features argument in ABC v. Aereo, Inc., where the Court will consider the copyright laws to see if Aereo can offer streaming of TV shows to people who pay them a fee, without Aereo having to pay the broadcast companies anything. Could be huge, at least for couch potatoes.

Down in Columbus, a big victory for the defense bar, especially those who defend drunk driving cases.  We'll talk about that one in detail on Wednesday.  In the meantime, let's head over to the courts of appeals, where several interesting cases are on tap.

I've often felt that ninety percent of ineffective assistance claims are Monday morning quarterbacking, and that's on display in a couple of cases.  First up, we have the 1st District's decision in State v. Dangerfield, where the lawyer gets no respect:  the claim on appeal is that his failure to request a pre-sentence report was deficient performance.  No matter that that's generally a tactical decision, immune from review for ineffective assistance.  No matter that it was definitely a tactical decision in this case, because the attorney specifically stated that he didn't want one.  The kicker is that the defendant had pled guilty to aggravated murder.  Almost as bad is State v. Patterson, where the 8th District rejects the claim that "defense counsel exercised poor judgment in his attempts of humor and references to personal experiences" in voir dire, and that he could've cross-examined the DNA analyst more effectively.

The 3rd District does find ineffective assistance in an unusual situation in State v. LomanLoman was charged with breaking and entering, and pled guilty.  He was released on bond, with the condition that he "contact his attorney once each week."  At the sentencing, the judge inquired whether Loman had contacted his attorney as required, and the attorney, not knowing the answer, called his receptionist as a witness, and she testified to only two contacts in eight weeks.  The judge sent Loman off to prison.

Loman argues ineffective assistance on appeal, but instead the panel decides that the applicable case is the Supreme Court's decision in US v. Cronic, which created a narrow exception to the Strickland requirement that a defendant had to show his attorney's deficient performance prejudiced him:  where there has been a complete denial of counsel.  The court holds that the putting the receptionist on the stand - the attorney didn't cross-examine her - created just that situation.  I'm not sure why that analysis is necessary, because Loman had no prior felonies, making the prejudice obvious:  violating the conditions of his bond was the only way the judge could have sentenced him to prison.

I've suggested in the past that it is impossible for a child under six in the State of Ohio to say anything that is not an excited utterance, and the 5th District puts the lie to that in State v. FoxThe 10-year mentally disabled child had told her mother about an incident three weeks after it happened.  I've seen appellate courts apply the "excited utterance" hearsay exception to this sort of situation, on the grounds that the "excitement" was not the incident, but the telling of it.  To its credit, the 5th District avoids that, noting that while the girl might be under stress at the time of the revelation, "it was not while she was still under the stress or excitement from the original event."

So the case gets reversed, huh?  Oh, to go back to those halcyon days when I, like you, had an unjaundiced view of the law.  The panel throws the excited utterance exception under the bus, noting that "the possibility of unreliability due to the passage of time is lessened in this case due to the fact the victim is a ten-year old with mental retardation," a claim that has no known empirical basis, and for good measure does the old "arguendo" routine, concluding that even if it was error - wait for it - the error was harmless.

What's the rush?  Toledo v. Burns presents an interesting issue:  whether Burns' blood-alcohol test, on which he scored an impressive .29, should be admitted.  He'd been taken to the hospital after the accident, and initially resisted attempts to administer the test, but "relented" after various drugs rendered him semi-conscious.  Would've been an interesting issue, except that the court never gets to the motion to suppress, because the trial judge took four years to rule on it.  The court finds this delay to be "inexplicable," and kicks out the conviction for a speedy trial violation.


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