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Case Update

Another death penalty case took center stage in the Supreme Court this past week, with the Court granting a stay of the execution of Russell Bucklew until the 8th Circuit has an opportunity to rule on his 8th Amendment claim.  Bucklew was sentenced to death for killing his ex-girlfriend's new boyfriend, and taking her captive and raping her.  During the time he's spent on death row, though, he's developed a rare disease known as cavernous hemangomia.  His lawyers allege that the condition, which results in vascular tumors, creates a "substantial likelihood" that the drugs used in the execution process will result in Bucklew suffering "hemorrhaging, choking, obstruction of his airways, and suffocation."  That's certainly no way for the State to kill someone, so the lower courts will sort it all out, and five gets you ten that before they do, Bucklew will have succumbed to cavernous whatever.

Down in Columbus, only a couple of decisions on disciplinary matters, but the court hears two oral arguments.  On Tuesday, the court will tackle the definition of "enterprise" in Ohio's Corrupt Practices Act (the state's counterpart to the federal RICO statute) in the appeal from the 2nd District's decision in State v. Griffin.

On Wednesday, I take to the podium to argue State v. Castagnola.  The facts of the case were immortalized in my post three years ago.  Basically, the police got a warrant to seize Castagnola's home computer after he told a wired informant that he'd egged a prosecutor's car after he'd found the prosecutors' address "online."  (And yes, they used a wired informant in an egging case.)  Trouble was, Castagnola had never said the word "online"; that was the invention of the detective who prepared the affidavit for the warrant.  The case poses interesting questions about the warrant process and the requirement of particularity, and we'll probably have an opportunity to discuss it further, unless I bomb in the argument, in which case it will never be heard of again.  I'm thinking of accompanying my argument with a PowerPoint presentation entitled, "Your Friend, the Fourth Amendment," but I confess to having second thoughts.

While I'm pondering that further, let's check out what happened in the courts of appeals...

Lockland v. Plotsker is unquestionably a minor case - it's an appeal from a speeding ticket - but it's an interesting decision nonetheless.  The court rejects Plotsker's claim that his attorney was ineffective, noting that Plotsker was charged with a minor misdemeanor, and thus had no right to counsel, and accordingly couldn't claim that his counsel was ineffective.  I've got some issues with that:  while one doesn't have a right to appointed counsel for a minor misdemeanor, one certainly has the right to hire an attorney to represent him at the trial, and so the quality of the attorney's representation should be a subject on appeal.  The court points to a US Supreme Court case and one from the Ohio Supreme Court, which held that failure to file a discretionary appeal couldn't be the basis of an IAC claim, since one had no right to assigned counsel for a discretionary appeal.  I'm thinking there are differences, but if the upshot is that I don't have to read appeals from minor misdemeanor convictions arguing ineffective assistance of counsel, I'm not going to get too upset.

In State v. Mills, the 8th District clarifies the requirements for proper imposition of post-release controls:  the trial court must notify the defendant orally at the sentencing hearing of the consequences of violating PRC, and must include that warning in the journal entry.  That helps Mills:  his conviction of escape for not showing for his meetings with his parole officer is vacated, because if PRC was validly imposed on his underlying conviction, it couldn't be imposed after he got out of prison, and there was nothing for him to "escape" from.

In State v. Davis, the 12th District points out one of the recent major changes in the law on intervention in lieu of conviction.  While the former statute wasn't clear on what happened if the trial court found that the defendant to be in violation with the terms of his treatment under ILC, the new one is:  the judge "shall enter a finding of guilty" and impose an appropriate sanction. 

There are three interesting points in the 6th District's decision in State v. Whitaker.  The cops had received an anonymous tip that two women with some kids in a red car had been drinking at a certain bar.  Upon arriving at the bar, the police saw a red car with two women and some kids leaving the lot.  Before it could do so, three cop cars pulled up alongside her.  The court reverses the trial judge's denial of the motion to suppress, first finding that the encounter wasn't consensual; although the cops denied blocking the defendant's car in, the court found that when three police cars pull up around you, you're not going to feel free to leave.  Secondly, the court found that the anonymous tip wasn't sufficient to create a basis for a stop. 

The third interesting thing?  The court never mentions Navarette v. California, the SCOTUS decision from just three weeks ago, which concerns - ahem - anonymous tips in drunk driving cases. 

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