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Case Update

Other than a summary reversal of a 9th Circuit case which had granted habeas relief, the Court hasn't issued any decisions so far this term.  But oral arguments have proceeded apace, including one last week about whether a state dental board could preclude non-dentists from offering teeth-whitening services.  The "dental board" consisted of practicing dentists elected by other dentists.  For those of you conversant with economic terminology, this would be found under "barriers to competition," and explains why you need to have a state license to put makeup on people.

There was also argument in one quasi-criminal case of note, Jennings v. Stephens.  Jennings had been sentenced to death, but won a new sentencing hearing when a Federal judge found for him on two of three ineffective assistance claims.  On appeal, Jennings argued that the judge should have also found for him on the third claim.  The 5th Circuit held that the judge was wrong in granting relief on the first two, and that it couldn't consider the third because Jennings hadn't cross-appealed on that issue.  Jennings now argues that he didn't need to cross-appeal, following the general rule that victorious party need not cross-appeal unless he wishes to expand the judgment below.  (For example, in a civil case you win a judgment but the trial court denies your request for attorney fees, and the other side appeals.  If you simply want to defend the judgment, you don't have to cross-appeal, but if you want to take up the fee issue, you do.)  My take is that Jennings will win, adding a bit of clarity to the law.

Down in Columbus, John Johnson is rebuffed in his latest attempt at relief from his conviction nearly half a century ago.  Johnson was convicted of aggravated murder and sentenced to death in 1976, but the Ohio Supreme modified that to life imprisonment when SCOTUS declared Ohio's death penalty scheme unconstitutional.  This represents Johnson's third effort at claiming that he should get a new sentencing hearing, not just a modification of the sentence, and it proves no more successful than the previous two.  Johnson will have his next parole hearing in two years, and we'll see how that goes.

Not much going on in the courts of appeals, either; only about 80 cases.  Let's see what we can find.

The State appeals the denial of a continuance and the dismissal of the indictment with prejudice in State v. Jones.  The trial court had denied Jones' motion to dismiss for lack of speedy trial on December 18, then set the case for trial for the 23rd, the day it calculated the time would run.  The State filed a motion to continue the next day, which was denied, and renewed the continuance request on the day of trial, stating that one of its police officers was on vacation and that three others hadn't been subpoenaed because they were unavailable due to it being a "holiday week."  The 2nd District finds that the request for a continuance was reasonable, but nonetheless affirms, noting that "the fact that the grant of a continuance may be reasonable does not necessarily compel a conclusion that the denial of a continuance is unreasonable." 

The vagaries of sex offender registration law are on display in the 8th District's decision in State v. Miller.  Miller had been convicted in 2009 of gross sexual imposition for an event which occurred in 2007, and the trial judge labeled him a Tier II sex offender under the Adam Walsh Act.  That was wrong, everybody learned in 2011, when the Supreme Court held in State v. Williams that the AWA couldn't be applied to crimes committed before its effective date.  Miller then filed a motion asking that his registration requirement be amended.  The court held a hearing and classified him as a sexually oriented offender under Megan Walsh Act.  Miller appealed, arguing that since he had completed the sentence for the crime, the court was without jurisdiction to reclassify him. 

That borrows from the law on post-release controls, which does indeed hold that improper imposition of PRC can't be corrected once a defendant completes his prison sentence.  It's had to see how that applies to registration under Megan's Law; as the court notes, registration there is by operation of law:  Miller automatically became a sexually oriented offender by virtue of his conviction of gross sexual imposition, and no hearing was required.

There's case law which holds that the hearsay exception for medical diagnosis and treatment isn't as all-encompassing as many prosecutors would like:  it's not carte blanche for admission of anything said to a doctor or nurse.  But the 10th District's decision in State v. L.E.F. shows the illusory nature of the restriction.  The trial court allowed a videotaped interview with the child rape victim to come in, and the panel finds that some of the interview veered from the medical into the forensic.  No matter; the victim testified at trial to many of the same things she said in the interview, so L.E.F. (I assume his initials were used to disguise the identity of the victim) will serve his life without parole sentence with a better understanding of the concept harmless error.

Post-release control figures in a lot of sentencing cases, but it also figures in pleas, as it did in the 1st District's decision in State v. Jones, where the judge failed to mention it at all during the plea hearing.  Here's the quick and dirty:  PRC is a non-constitutional right, so the State has to show only substantial compliance.  If the judge says something about it, even if he gets it wrong - like saying it's discretionary when it's mandatory - that's partial compliance, and the defendant has to show prejudice to have the plea vacated; basically, he has to demonstrate that he wouldn't have entered the plea if he'd been correctly informed about PRC.  Good luck with that.  But if the judge doesn't say anything about it at all, that's noncompliance, and the plea gets vacated.

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Only three posts this week, unless one of my numberless horde of regular readers would like to do one of the five appellate briefs I've got due over the next month.

Didn't think so.


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