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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.

No decisions from Columbus, but several oral arguments on tap this week.  Three cases, all consolidated, will determine whether a probate judge can issue search warrants, and another with whether a juvenile delinquency adjudication for drunk driving, when the juvenile didn't have an attorney and didn't waive one, can be used to elevate a subsequent adult drunk driving conviction.

Two others raise more interesting issues.  The gross sexual imposition statute regarding children provides that a prison sentence is mandatory when there's evidence corroborating the victim's testimony, and that raises various constitutional issues in State v. Bevly:  is there a rational basis for making the distinction between cases where testimony is corroborated and cases where it isn't?  And since the finding of corroboration is made by a judge, not a jury, is that a Blakely violation? 

A few years back, the Department of Health adopted the Intoxilyzer 8000 as its weapon of choice in combating drunk driving.  Alas, the machine has been besought with problems of accuracy.  But when defense lawyers try to point that out, they're shut down by State v. Vega, a heavily-criticized per curiam decision by the Supreme Court in 1984, which essentially held that you can't make a general challenge to the reliability and validity of a breath-testing machine chosen by the Department of Health.  State v. Ilg challenges the 1st District's decision to allow substantial discovery on the 8000, the State arguing that this violates Vega.

I'll have more on those oral arguments this week.  In the meantime, a few cases from the courts of appeals.

In State v. Edwards, the defendant pled to two third-degree sex felonies, and the judge imposed two 54-month year sentences and ran them consecutively.  The defendant successfully appealed on the argument that the sentences should have been in years, not months, and on remand the judge gave him 4 years on one and 5 years on the other.  Edwards appeals again, arguing that this resulted in increasing one sentence (from 4 ½ to 5 years), and thereby violating the vindictive sentencing principles in North Carolina v. Pearce.  The State argues that Pearce wasn't violated because the total amount of the sentence was the same, but Ohio doesn't follow the "sentencing package" doctrine:  each sentence has to be considered individually.  So the judge can only impose two four year sentences, and Edwards saves himself a year.  Pearce has taken a real beating over the years, and basically stands for the rule that the judge has to say something on remand as an explanation for why he gave a greater sentence.  The judge here didn't do that.

An interesting situation occurs in State v. Schwarzman:  the defendant was convicted of assaulting A, and there's plenty of evidence he did, but it's not helpful because he was actually charged with assaulting B.  The trial attorney failed to ask for a Rule 29 acquittal on that charge, so the court has to review it for plain error, but the 8th District finds that test is met:  if you've convicted of a charge when there's no evidence to support it, that's the correction of a "manifest injustice" required under plain error review.  The net result?  You don't really have to sweat it if you forget to make the motion; either way, the court is going to review it, and if the evidence isn't there, they're going to reverse.

State v. Martinez presents the pitfalls in pursuing a Padilla claim.  The State argued that Martinez's motion to vacate his plea the basis that he hadn't been properly advised of the immigration consequences of a conviction should be denied, because the judge gave him the appropriate warnings.  As I've mentioned before, giving the statutory warnings shouldn't preempt a Padilla claim:  while the judge warns you that a plea could have an impact on your status, the lawyer should advise you what that impact is.  The problem?  Defense counsel didn't introduce evidence at the hearing, nor submit an affidavit from his client, that the lawyer failed to warn him of the consequences, and that he wouldn't have pled if he had. 


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