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Case Update

If you're jonesing for some news from SCOTUS, now that it's out of session until October, SCOTUSblog lifts that monkey off your back by advising us that there are fifteen new books on the Supreme Court in the works, including The Enigma of Felix Frankfurter.  Frankfurter was the counterpart to David Souter:  a staunch liberal when appointed by FDR, he became decidedly conservative on the bench, refusing, for example, to apply the Constitution to the states.  Probably his most egregious opinion was Minersville School District v. Gobitis, which upheld the expulsion of Jehovah's witnesses from school because they refused to say the pledge of allegiance, a decision the Court overruled just three years later.  Frankfurter also refused to hire Ruth Bader Ginsberg as a law clerk because she was a woman, despite the recommendation of the Dean of the Harvard Law School, where she had graduated at the top of her class.

I think I'll wait for the movie.

Down in Columbus, the court was busy spewing out decisions in criminal cases.  One case that didn't make the cut was State v. Laber, which involved the issue of whether "terroristic threats" under RC 2909.23 - in Laber's instance, speculating to another coworker about which fellow employees he would shoot, and where he'd position bombs in the workplace - implicates the First Amendment.  Well, it would have involved that issue, had it been raised in the lower courts.  It wasn't, leaving only the issue of sufficiency of the evidence.   After the oral argument, I wrote that "why the court even took the case is a mystery," and it proved a mystery the court couldn't solve, either; last week, it dismissed the case as having been improvidently allowed. 

But the court did hand down three decisions.  State v. Limoli deals with the application of the sentencing provisions of HB 86 to crimes committed before its passage, and, I believe, provides further support for my argument here a couple weeks back that HB 86 governs sentences in "cold cases," and thus a defendant convicted of a 1994 rape faces a 3 to 11 year sentence, rather than 10 to 25 years.  In State v. Amos, the court resolved a split between the 8th District and the 8th District:  two different panels had come out with on the same day, one holding that a judge had to get a presentence report before placing a defendant on community control sanctions, and one holding that she didn't.  Spoiler alert:  she does.

The last decision was probably the most significant:  in State v. Bonnell, the court sought to clarify the requirements for imposition of consecutive sentences.  Spoiler alert:  they didn't.  In any event, we'll talk about Bonnell on Wednesday, and Limoli and Amos on Thursday.

In the courts of appeals...

State v. Brown involves one of the little-known aspects of Miranda:  the public safety exception.  That doctrine "allows the police, under certain circumstances, to temporarily forgo advising a suspect of his Miranda rights in order to ask questions necessary to securing their own immediate safety or the public's safety."  This almost always involves the location of a weapon, and it did here:  Brown supposedly tossed a gun away as he was being chased by the police, and the question was the admission of his statements regarding the gun before he was Mirandized.  The trial court allowed them, and the 2nd District affirms.  Brown pled no contest to tampering with evidence to take the Miranda issue up to the appeals court, but it's not clear why he didn't try the case instead:   his statements weren't incriminating -- he denied having a gun -- and the police didn't find one.

There's been a dispute among the lower courts as to whether a stop based upon a police officer's mistake of law is invalid, and the 9th District comes down on the "invalid" side in State v. Drushal.  The case provides the Bullshit Traffic Stop of the Week™:   Drushal failed to stop his car before the "clearly marked solid stop bar" on a particular street.  The trial court found that the local ordinance required the driver to stop "at" the stop line, not before it, and suppressed the evidence resulting from Drushal's arrest.  The 9th District affirms.

Here and there...  The 10th District in State v. Jordan holds that a discussion between court and counsel as to how to answer a jury question was not a "critical stage of the proceedings" at which the defendant was entitled to be present...  The police don't have to tell a defendant he has a right to refuse to provide a urine sample in a drugged driving case, the 12th District rules in State v. Ossege... Good news, bad news:  in State v. Ferguson, the 10th District upholds Ferguson's first-degree felony conviction for trafficking in cocaine, but says the trial court erred in ordering him to pay restitution for the buy money...  A rare reversal of a conviction for failure to establish venue occurs in State v. Sullivan.  The 1st District notes "the words 'Hamilton County,' 'Cincinnati,' or even 'Ohio' were never mentioned" at trial, and that the references to the intersection where the incident occurred weren't enough to establish venue...

State v. Bodyke, which held that the Adam Walsh Act can't be applied retroactively, and the burgeoning number of "cold case" rapes, has led to the revival of sexual predator hearings.  The 8th District's decision in State v. Gray spells out the different standards in the trial court and on appeal for that issue.  While the trial judge has to determine that "clear and convincing" evidence supports the classification, the appellate court reviews it under a civil manifest weight standard:  the decision will be affirmed as long as it is supported by some competent, credible, evidence.

Finally, those bemoaning America's moral collapse find added ammunition in the 8th District's decision in State v. Paster, where we learn that Craigslist has a "casual encounters" section.  Paster desires one with someone he believes is a 14-year-old girl; Paster was surprised to find out it was a cop, but you aren't.  The upshot of the decision is that driving to meet a person you believe is a 14-year-old girl and pulling into the parking lot where you're supposed to meet her is a sufficient step toward the commission of the crime of attempted unlawful sexual misconduct with a minor.  Word up.

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