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Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


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...

The new open discovery rules permit prosecutors to refuse to disclose names of witnesses if they file a certificate of nondisclosure with the trial court, explaining their reasons for not providing the information.  It's de rigueur for prosecutors in Hamilton County to file a certificate in all murder cases, but in State v. Davenport, the 1st District finds that the certificate was lacking in "specific articulable facts."  No problem, though; at the hearing on the issue, the lead detective provided sufficient information to warrant the granting of the certificate, and the witnesses' names weren't disclosed until the day of trial.

In State v. Altunar, the defendant seeks to vacate his plea under RC 293.031, which requires the trial court to advise a non-citizen of the possible ramifications of a plea on his immigration status.  The good news for Altunar:  the 10th District agrees that the trial court erred in applying a "manifest injustice" standard.  That's the requirement for a post-sentence motion to vacate.  But subsection (D) of the statute has its own provision for vacating a plea:  the plea must be vacated if the judge failed to give the advisement.  The bad news for Altunar:  he was advised of the immigration consequences, both in the written plea form and at the time of sentencing.

The "gee, I didn't know that was in my pocket" defense to a drug charge gets a workout in the 10th District's decision in State v. Hackett, with Hackett claiming he was unaware that there was a packet in his pocket, and further lacking in the information that it contained cocaine.  His ignorance did not prove blissful, however; the panel noted that under the definition of "knowingly," Hackett "had only to be aware that such circumstances probably existed," and concluded that "it seems most unlikely that Hackett did not know he had the packet in his pants pocket and seems unlikely Hackett did not know the packet he had control over contained cocaine."

Goofy Laws, Volume 74.  Did you know that one of the obligations of a trial judge at sentencing is to "require that the offender not ingest or be injected with a drug of abuse and submit to random drug testing. . . and require that the results of the drug test administered under any of those sections indicate that the offender did not ingest or was not injected with a drug of abuse"?   As Casey Stengel said, you can look it up; it's contained in RC 2929.19(B)(2)(f).  We find this out courtesy of the 1st District's decision in State v. Haywood, where we also learn that the requirement that the judge inform someone he might not be eligible for good-time credit, introduced in HB 86, was subsequently removed.


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