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Case Update

Looks like this will be 4th Amendment Week at The Briefcase.  Not as much fun as Happy Hour at Tiffany's Cabaret, but the food is better.  SCOTUS came down last week with its decision in Navarette v. California, holding that an anonymous tip can serve as the basis for a traffic stop for drunk driving.  Tomorrow, we have oral argument in the cases involving whether the police can search a cell phone without a warrant.   We'll talk Navarette on Wednesday, and the cellphone cases on Thursday.  That's a big week, so we'll take a break on Friday, and actually do some work.

The Court also decided Paroline v. US, on restitution for child porn victims.  As I explained a couple of years ago, the 2004 Victims Rights Act passed by Congress requires courts to award victims of child sex abuse "the full amount of the victim's losses."  "Amy," the nom de litige (yeah, I know, I just made it up, but it sounds good, no?) of the "Misty" series, a compilation of the girl taken by her uncle when she was 8 to 10, has been filing restitution claims against anybody who's caught with her pictures on his computer.  She's claiming a total due of $3.4 million, and she claimed that she was entitled to an order of the full amount from Paroline, who had only two of her pictures on is computer.  The 5-member majority decided that the district court should calculate how much to assess against each defendant personally, while expressing hope, probably unfounded, that the district courts can come up with a way to do this.  Three justices - Roberts, Scalia, and Thomas - wouldn't have made any award against Paroline, arguing there was no valid formula set forth in the law.  Sotomayor dissented, arguing that the full amount had to be awarded against each defendant.

Down in Columbus, the Ohio Supreme Court took a third look at State v. Davis, a capital case, and for the second time affirmed.  The case has a tortuous history.  Davis committed the killing thirty years ago and was sentenced to death by a three-judge panel.  The Supreme Court reversed, finding that the panel hadn't properly weighed one of the mitigating factors, and sent it back down.  In 1989, the original three judges reviewed it again and issued the same sentence, but refused to consider any mitigating evidence not initially introduced in 1984, such as Davis' adjustment to prison.  The Supreme Court affirmed, but in 2007 the 6th Circuit reversed on a habeas claim, holding that the post-sentencing period should have been considered. 

So back it went, but of course by this time one member of the original panel was dead, and the other two had retired, so a new three-judge panel was convened.  They decided, too, that Davis should be killed.  The Supreme Court affirms, but considering it's now going into a second round of habeas, if Davis dies with a needle in his arm, it's a lot more likely to be an IV than one filled with whatever drug cocktail the State comes up with by that time.

Down in the courts of appeals, in State v. Saunders, the defendant claims that the bag containing marijuana found in his car wasn't his, a contention made difficult by the fact that it was found underneath another bag containing $16,943 in cash, which Saunder claimed was his.  More notable is the court's treatment of the age-old issue of whether a defendant waives his right to claim insufficiency of the evidence on appeal if his lawyer didn't make a Rule 29 motion.  The State argues that the failure means the issue can only be reviewed for plain error, but the court holds that "the difference between a review for legal sufficiency and a review for plain error is largely academic and, if the evidence is insufficient, regardless of whether we review for plain error, the conviction must be reversed."  One less thing to worry about.

In State v. Floyd, we find the ultimate exaltation of form over substance.  The defendant files a notice of delayed appeal, some four months after his plea of guilty to aggravated murder.  The court finds that the motion requires a valid reason for why the appeal wasn't appealed within the 30-day time limit, and "where the movant fails to state a valid reason, this court is without discretion to allow a delayed appeal."  Floyd's motion doesn't cut it.  The written plea agreement's statement stated that he was waiving appeal on all issues which might have arisen in a trial, and he should have known that meant he could appeal the guilty plea.  And although he claimed that he didn't get the final journal entry until sometime later, his motion doesn't say when he got it.

Hey, I'm all for rules, but there's no reason to apply this one with a vengeance.  All you have to do is show excusable neglect to get out of a default judgment.  You're talking about the only direct appeal this man will have from a life sentence, and you're going to foreclose it because he didn't dot the i's and cross the t's? 

Finally, I'm seen numerous cases of rape or sexual battery where the perpetrator took advantage of the victim while she was asleep, but in State v. Hiser, the defendant tries role reversal:  he defends the charge of unlawful sexual conduct with a minor by claiming that he is afflicted with sexsomnia, a disease which causes him to have sex in his sleep.  He argues that the judge should have granted a continuance to allow him to find an expert to support this, but the case had been pending over a year by the time Hiser asked for the continuance, just a week before trial.  


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