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Case Update

Much of the talk about the Supreme Court's 2013 term continues to center around the Hobby Lobby decision, in which the five of the Court's male justices, all Catholics, decided that corporations have souls which might face eternal damnation if forced to allow their health insurance companies to provide certain contraception coverage to women, at no cost to the company.  On the other hand, my many California readers can take comfort in the fact that the Court might soon redress the Golden State's citizens' inability to get goose liver; in Association des Éleveurs de Canards et d'Oies du Québec v. Harris, the plaintiffs are asking the court to address the state law which bans importation of foie gras because of the manner in which it is produced.

On Thursday, I'll do my annual Supreme Court recap of the past term.  No force-feeding involved.

Down in Columbus, a couple of criminal decisions.  Well, one; in State v. Osie, the court affirmed Osie's death sentence for killing a business acquaintance who'd threatened to go to the cops because Osie's girlfriend had stolen from him.  The affirmance comes despite a finding that a three-judge panel erred in failing to merge duplicative death specifications.  The court cured that error by its "independent review," just like it cured the error of a prosecutor's misconduct in closing argument in the penalty phase a few months ago in State v. Kirkland (discussed here), despite concluding that the argument "prejudicially affected Kirkland's substantial rights."

The non-decision was in State v. Belew.  Belew had been convicted of shooting at two police officers and sentenced to 27 years.  (Belew was shot in the chest by the officers' return fire; the officers weren't hit.)  The focus of the case was Belew's status as a veteran and diagnosis of post-traumatic stress syndrome; the evidence pointed to him having tried to commit "suicide by cop."  Two years ago, the legislature added subsection (F) to RC 2929.12; it requires a court to "consider the offender's military service record and whether the offender has an emotional, mental, or physical condition that is traceable to the offender's service in the armed forces of the United States and that was a contributing factor in the offender's commission of the offense or offenses."   By a  4-3 vote, the court dismisses the case as having been improvidently granted.  Two justices believe that the case offers an excellent opportunity to clarify the law on this issue, but nonetheless would have affirmed the sentence; O'Neil would have reversed, as he would have in Kirkland and Osie. 

Some falloff from the holiday in the courts of appeals; fewer than 80 decisions.  Let's take a look.

The defendant in State v. Drager pleads guilty to OVI with two prior convictions within six years, but attacks the two prior convictions, bringing in his attorney in those cases to testify that neither of the pleas were made by Drager personally appearing before the judge in open court, as required by the traffic and criminal rules.  "His attorney in those cases" is the operative phrase there:  as the 2nd District notes, the courts have consistently held that the only way you can collaterally attack a prior conviction used for enhancement purposes is by showing that it was uncounseled.

The ubiquitous "marked lane violation" provides the basis for so many of the Bullshit Traffic Stops of the Week™ featured in this blog, but State v. Maxwell doesn't make the cut.  The officer testified that he saw Maxwell  "straddle" the center line for a second or two while changing from the left lane to the right, and then kept his right turn signal on for another 300 yards before turning right.  By a 2-1 vote, the 2nd District reverses the denial of the motion to suppress, noting that what Maxwell did wasn't a traffic violation.  The dissent nonetheless argues that it demonstrated "erratic driving," which, like beauty, is in the eye of the beholding police officer.

The 5th District does a nice job with another search case in State v. Fisher.  Called to the scene of a domestic violence call, the police were told by the victim that the defendant and her brother could be found in the defendant's apartment, and that the brother had a warrant for his arrest in another matter.  The police went to the apartment, saw Fisher and the brother inside, and, when they wouldn't come out, went in and arrested them.  The basis for the entry was the warrant for the brother, and the policy of arresting someone when a domestic violence complaint is signed.

The policy argument goes nowhere; although the emergency aid exception to the warrant requirement might allow the police to enter if they find an ongoing altercation, that's not what happened here; there were no exigent circumstances allowing entry.

The arrest warrant is a little trickier.  The law on this is that the police need a search warrant to enter the home of a third person in to make an arrest of the subject of a search warrant.  There's an exception:  the subject of the warrant can't complain about the warrantless entry, but the homeowner - in this case, Fisher - can.

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