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Case Update

No oral arguments anymore in SCOTUS' 2013 term, and the only case decided last week was the 5-4 decision permitting prayer at the outset of town hall meetings.  The justices will be getting together for a conference on Thursday to pick cases for next term - 15 are already on the docket - and it's likely that at least one Crawford case will emerge.  No fewer than 11 of them are in the certiorari phase, with the issue centered on whether one person can testify about forensic results achieved through testing by another person.  That takes various forms, such as coroner's reports, DNA tests, and blood/alcohol readings.  The Court's been building toward a decision on that since Melendez-Diaz v. Massachusetts five years ago, so we'll see how that plays out, and talk about it more in the coming weeks.

There's no question that Calvin Neyland murdered Douglas Smith and Thomas Lazar in 2007 at the job site at Liberty Transportation Co. in Perrysburg, just before they were to tell him that he'd been fired for falsifying his truck driver logs.  There's also no question that Neyland was nuts; while the shrinks lined up 3-1 that he was competent to stand trial, all of them agreed that he had severe mental issues.  (At the time, he was living in his truck because he was convinced that people were breaking into his home and listening to his answering machine messages.)  In an exhaustive opinion in State v. Neyland(and exhausting; it clocks in at over 50 pages), five justices of the Ohio Supreme Court decide that he deserves to die for his crimes. 

He might, but after the fiasco with the executions of Dennis McGuire here in Ohio and Clayton Lockett in Oklahoma, the smart money is that by the time Neyland finally has a definite date with the gurney in another couple of decades, there won't be one.  Prosecutors are increasingly unwilling to seek the death penalty, and juries are increasingly unwilling to impose it.  Regardless of whether you believe that someone like Lockett deserves to die - he raped a 16-year-old girl, then helped bury her alive - the prospect of having executions play out like the climactic scene in Braveheart is a bit much for a society that deems itself civilized.

In the courts of appeals...

The purpose of HB 86 was to reduce Ohio's prison overcrowding:   it supposedly made it harder for judges to send people to prison in the first place, and to make it harder for them to impose consecutive sentences.  The 6th District's decision in State v. Mathis shows the illusory nature of that supposed achievement.  The judge had imposed consecutive prison sentences of 11 months for Mathis' two fifth-degree felony drug convictions.  Mathis first claimed that he shouldn't have been sent to prison at all, since he hadn't been convicted of a felony in the past two years.  (That was the law at the time of Mathis' sentencing; the statute has been subsequently amended to permit the judge to send a defendant to prison on a 4th or 5th degree felony if he's got a prior felony conviction, regardless of the date.)  But Mathis had showed up a half-hour late for his trial on two days, so that was a violation of his bond, which took him out of the "mandatory probation" feature.

Much worse was the court's treatment of the consecutive sentencing issue.  The explanation the trial court gave for imposing consecutive sentences was Mathis' record - he'd had 11 previous convictions of misdemeanors and felonies, only one since 2006 - was this:

Based on his past record, based on the type of drugs and the event, this Court runs -- finds that it's necessary to protect the public from future crimes by this individual...

The 6th District found this to be enough:   the trial court "found that the type of drugs involved and the event itself posed danger to the community, it found that there was a need to protect the public from Mathis' behavior."  Notably absent from anything the judge said was the second finding required by the statute:  that "consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public."  Oh, and the "type of drugs involved" that posed such danger to the community that it required consecutive sentences?  The total haul was 51 oxycode pills and seven of buprenorphine.

Not to pick on the 6th District, but its decision in State v. Gaines is equally puzzling.  The day before trial, the State notified the defense that it was calling two additional witnesses.  The defense asked for a continuance to investigate the witnesses, but the trial court denied it, admitting that it had created an "appealable issue."

There were a number of witnesses, and if the panel had held that the judge didn't abuse its discretion, or that there was no showing that a continuance was needed (the defense knew of one of the witnesses), or that any resulting error was harmless, I wouldn't have a problem.  But it held that there was no discovery violation.  The case had been pending for seven months, and I appreciate the need for the prosecution to keep investigating the case.  But if we're going to hold that turning over names of witnesses the day before trial doesn't even implicate the discovery rules, we're going to run into some problems. 

More than a thousand words, in this case.  Keeping out autopsy photographs in a murder case is a daunting task, and in State v. Smith, the 1st District shows just how daunting that task is.  The syllabus prepared by the court tells it all: 

The trial court did not err in admitting autopsy photographs depicting the child victim with his skin removed:  the state alleged that the defendant had caused the child's death by inflicting internal injuries, and the photographs were relevant to demonstrate the nature of those injuries.

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