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June 2014 Archives

Case Update

While it wasn't a good week at SCOTUS for President Barack Obama - his position on recess appointments was unanimously rejected, and the Massachusetts law establishing a 35-foot buffer zone around abortion clinics, which the administration had defended in an amicus brief, met the same fate - it was a good week for the 4th Amendment:  also by unanimous vote, the Court held that police needed a search warrant to look through a cell phone seized from the defendant at the time of his arrest.  (And that might provide further bad news for the administration; some of the language in the opinions may augur ill for the administration's NSA eavesdropping program.)  We'll talk about those decisions on Wednesday.  Only two decisions left for this term, both of which will be coming out today.  That includes the big one on whether a corporation can be compelled to offer contraceptive coverage to its employees. 

No decisions from Columbus, but the court did have oral arguments in several cases.  One, State v. Rodgers, hopes to address the question of when the trial court has to consider whether offenses are allied, especially where the defendant fails to raise the issue.  The State insisted this constituted a waiver of the issue, but the better view is that any review is limited to plain error.  The question persists, though:   does the trial court have a duty to inquire even when there's no evidence raising the issue?  In a decision last year, the 8th probably had it right:  you can't review for plain error when there's nothing in the record indicating an error even occurred.  We'll see what the Supremes do.

The more interesting case, though, was State v. Laber.  Laber, upset with an incident at work, had a conversation with a co-worker in which he ruminated over how he might redress his various employment grievances with management.   Laber's thoughts on this ran to the darker side:  he said he would start by shooting a particular manager, then a human resources employee, and then would use "three bombs," starting with the front office.  For that, he was convicted of making a terrorist threat under RC 2909.23.  While that might pose a good First Amendment challenge, but that was never raised in the lower courts, leaving only the issue of sufficiency of the evidence.  Given the court's motto that "We don't do error correction," why the court even took the case is a mystery, unless it was to provide an opportunity to bash a defendant's attorney; O'Donnell was particularly merciless in eliciting the damning details of Laber's nihilistic fantasy.

In the courts of appeals...

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Questions from the mailbag

One of the things about writing a law blog is that it makes you the Answer Grape for legal questions.  Other lawyers ask me all kinds of stuff.  Sometimes I even learn something.  Here are three questions I got this week.

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DNA retesting

DNA is unquestionably one of the greatest innovations in the history of crime investigation.  You're certainly not going to get an argument about that from Anthony Johnson.  Last week, the 8th District reversed the denial of his application for DNA testing, and gave him another shot at proving he didn't rob three women back in 2000.

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What's Up in the 8th

Last week, the 8th District handed down a big en banc decision on consecutive sentencing (discussed here), which I suggested was an effort to forestall any more tedious posts by Your Faithful Correspondent on the subject.  Certainly, a decision joined in by eleven of the twelve judges would settle the issue once and for all. 

Not so much, it turns out.  There are still some things to be worked out.

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Case Update

The Supreme Court's term ends a week from today, with the two cases on searches of cellphones the only criminal ones still awaiting decision.  That's not to slight the others; usually, the blockbusters come at the end of the term, and this year should be no different:  cases on greenhouse gases, TV broadcast rights, and whether corporations can refuse to offer coverage for contraceptives in their health insurance plans because of religious beliefs will be decided this week.  There was a significant decision last week on patent rights for software, but that is not, shall we say, in my wheelhouse, so any curiosity you might have about that will have to be sated elsewhere.

The Ohio Supreme Court's decision in In re A.G. last week provides Reason No. 112 for Why I Don't Do Divorce Work Anymore.  The (very) short version is that Patrick met Lolita, a Russian citizen, while he was there, the two were married, and returned to America, where they gave birth to a daughter, A.G.  They were divorced three years later, and much of the ensuing decade featured a custody battle in which kidnapping and parental alienation figured prominently.  The issue was whether A.G. was entitled to be present for the custody trial; the trial court held she was not, and the Supreme Court affirmed.  Frankly, I would have paid money not to see it.

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State v. Vega revisited

Six years ago, the Ohio State Controlling Board spent $6.4 million to purchase 700 Intoxilyzer 8000's, supposedly the new generation of machines designed to measure alcohol in the breath of those suspected of drunk driving.  The purchase was done at the behest of the Department of Health, which has the legislative authority to prescribe what machines will be used in that effort.

The acquisition was not without controversy.  Dean Ward, the Department of Health official who drew up the specifications and recommended the purchase, was a friend of the owner of the company which made the Intoxilyzer 8000; among the 17 companies invited to bid for the contract, Ward's specifications fit only the 8000. 

The controversy deepened when questions emerged about the accuracy of the device, and judges in municipal courts began throwing out the tests.  Those cases ran into a roadblock on appeal, though; appellate panels reversed in reliance on the Supreme Court's 1984 decision in State v. Vega, which held that the grant of legislative authority to the Department of Health meant that a defendant couldn't attack the general reliability of the machines.

Last week, the battle over the machines culminated in the oral argument before the Supreme Court in City of Cincinnati v. Ilg.  

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A Federal case and old age

I ran across a 6th Circuit decision last week, and found it interesting for a couple of reasons.  First, it amply portrayed the differences between the Federal system of sentencing and Ohio's.  Second, it might actually be useful in state courts here.

Back in 1996, the Ohio legislature passed a big sentencing reform bill.  In addition to creating "flat time" sentences and eliminating parole, it implemented a system of "guided discretion" in sentencing:  the judge's sentence should reflect his consideration of various factors.

 "Discretion" is the key word.  Everybody understands that the potential combinations of offenses and offenders is infinite, and you have to give a judge discretion to fashion a sentence which appropriately reflects the situation in that particular case.

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What's Up in the 8th

The 8th handed down only about half as many decisions as usual last week, most of their efforts having gone into the en banc decision in State v. Nia, where the court acted with a single purpose:   to get me to stop writing posts about how consecutive sentencing law is such a mess. 

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Case Update

Here I sit, preparing the Case Update, sipping on my Minute Maid Pomegranate Blueberry Juice, only to find that the product (marketed by Coca-Cola) contains only 0.3% pomegranate juice and 0.2% blueberry juice, the remaining 99.5% consisting of apple, grape, and other juices.  This knowledge comes courtesy of the Supreme Court's unanimous decision last week in POM Wonderful v. Coca-Cola, holding that the Lanham Act gives POM Wonderful, which makes its own pomegranate-blueberry juice, a private cause of action against Coca-Cola for false and misleading advertising.  My dismay is deepened to learn that when my daughter inherits the vast sums in my retirement accounts, she can't shield them from bankruptcy, as the Court determined in its other decision last week in Clark v. Rameker.

Hmmm.  Much more of this and you, gentle and hopefully non-litigious reader, may have a cause of action under the Lanham Act against me for advertising this as a blog on criminal law.  Well, you take what you can get.  About the only criminal decisions left before the Court's term expires at the end of the month are the two on search of cell phones incident to arrest.  For those of you whose hunger for civil cases has not been sated by the lead paragraph, you can wonder over to SCOTUSblog, where there's an in-depth article on a case headed for the Court involving the default by Argentina of some $81 billion in bonds back in 2001.  The article's wildly optimistic title, "The Argentine bond saga, made simple," seems tailored for another suit under the Lanham Act.

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Mandatory minimums

One of the many, many little quirks in Ohio criminal law is in the gross sexual imposition statute.  In cases involving children under 12, the judge has to impose a mandatory prison sentence if he finds the victim's testimony was corroborated by other evidence.

Yesterday, the Columbus Seven suited up for oral argument in State v. Bevly, and when the dust settled, it was pretty clear that little quirk is destined for the dustbin.

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Wednesday Roundup

Sometimes it's better to quit while you're ahead.  Not my words, but the opening sentence in the 1st Circuit's opinion in U.S. v. Sevilla-Oyola.

I had an appeal once for a guy we'll call Jamal.  He'd pled out to kidnapping and rape with a 3-year gun spec, and was sentenced to 13 years.  I had a good argument that the plea had been coerced:  the judge had held a hearing four days before trial where he invited the prosecutor to recount the evidence against Jamal, commented on the strength of that evidence ("you want to go to trial without any explanation for your DNA being there?"), told Jamal that "I certainly think you should consider pleading," and finally promised him a sentence of 13 to 15 years if he pled, as opposed to the 33 years he was facing on conviction.

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What's Up in the 8th

While decisions of the U.S. 6th Circuit Court of Appeals, even on issues of federal constitutional law, aren't binding on Ohio courts, one of them, the 2005 decision in Valentine v. Konteh, has had a profound impact on the way child rape cases are prosecuted in Ohio.  That might be coming to an end after the 8th District's decision last week in State v. Schwarzman.

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Case Update

If you wanted to argue about the Federalization about criminal law, Carol Bond would be Exhibit "A."  Initially joyous over her best friend's announcement that she was pregnant, Bond soured appreciably when she learned that her own husband was the father.  Her attempts on revenge bordered on the pathetic:   obtaining some chemicals from the lab she worked, and others through Amazon, on twenty-four occasions she spread the mixture on the other woman's mailbox, doorknob, and car.  On twenty-three the woman avoided contact; she got a mild rash from the twenty-fourth, relief coming by way of a rinse with soap and water.

The case took decided turn from the typical Lifetime Movie Network plot when Federal prosecutors charged her not only with tampering with a mailbox, but with a violation of a Federal law implementing the Vienna Chemical Weapons Convention.  Last week, in Bond v. U.S., the Court unanimously found this as ridiculous as it sounds, deciding that Congress could not have intended the law to reach this conduct.  A good result; any other would have left everyone with a bevy of chemicals under their kitchen sink a harborer of more "weapons of mass destruction" than we found after invading Iraq.  In so ruling, however, the Court eschewed the opportunity to address how far Congress can go in implementing a treaty, and the even larger question of how far the Federal government can go in prosecuting conduct which should be left to the states.

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Two good decisions

So you're doing an appeal on ineffective assistance of counsel for failing to object to evidence at trial.  Or you're claiming that the judge shouldn't have admitted certain evidence in a bench trial.  Eager lad or lass that you are, you log on to your favorite search engine to begin your research.

And the first thing you learn is that there are a hell of a lot of appellate decisions saying that failure to object is a tactical decision which appellate courts won't review, and there are a hell of a lot of appellate decisions saying that a judge in a bench trial is presumed to consider only relevant, admissible evidence.

Over the past couple weeks in State v. Pawlak and State v. Schillo, the 8th District has written two opinions that don't say those things, and reverse convictions. 

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Conflict resolution

The nice thing about the Supreme Court resolving a split between the district courts is that it's very clear who won and who lost.

In last week's decision in State v. Straley, the prosecution lost.

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What's Up in the 8th

Let's play Guess the Sentence.  Defendant A has a particularly nasty stash of child porn:  4,400 images and 55 videos, some including "children as young as babies being vaginally raped, anally raped, being forced to engage in fellatio, cunnilingus and being forced to engage in bestiality."  Defendant B has four cases involving seven separate armed robberies, with an attempted murder count thrown in for good measure, all with three-year gun specs, and some with five-year "drive-by" specs.

Who got 16 years and who got 24?

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Case Update

Freddie Lee Hall has spent more than half his life - 35 years - awaiting execution.  That's a bit much, but only a bit; as Justice Kennedy pointed out during oral argument in Hall v. Florida, the last ten people executed in Florida have spent an average of 24.9 years on death row.  Hall will spend more; last week, the Court sent his case back to Florida to reconsider whether he's mentally capable of being killed, finding that Florida's rigid cutoff score of 70 on intelligence tests, with no accounting for measurement error or impaired functioning, isn't compatible with the ban on executing mentally retarded defendants.  Hall might be warping the temporal curve, but the delay in his case represents a trend that's been going on for some time.  In 1985, the average time between sentencing and execution was six years; now it's more than 16.  Probably contributing to that is the many inmates who've spent a decade or so on death row only to be exonerated -- twenty-four of those in Florida alone.

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Recent Entries

  • January 17, 2018
    What's Up in the 8th
    When not to decide cases on allied offenses and pre-indictment delay
  • January 11, 2018
    Case Update
    Three new decisions from the Ohio Supreme Court
  • January 10, 2018
    To the barricades!
    Why I'm a threat to the Ohio state government
  • January 5, 2018
    Search and seizure in the digital age
    Do the cops need a warrant to get cell phone data?
  • January 3, 2018
    What's Up in the 8th
    We talk about me a lot, but there's some other stuff, too
  • January 2, 2018
    He's baaaack
    So I thought I'd start my first post in six weeks by explaining why it's my first post in six weeks. Ever run into somebody and ask the obligatory question, "How are you doing?" And they proceed to tell you...
  • November 15, 2017
    What's Up in the 8th
    Plea withdrawals (again), sexual predator hearings, and an appellate law question
  • November 7, 2017
    What's Up in the 8th
    Don't listen to prosecutors about the law, good new/bad news jokes on appeal, and the Byzantine course of a death penalty case
  • October 24, 2017
    What's Up in the 8th
    Trying to change the past
  • October 16, 2017
    En banc on sentencing
    The 8th District takes a look at what State v. Marcum means