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Case Update

SCOTUS resumes oral arguments with this week, with most of the attention focused on Zivotsky v. KerryThe American parents of Zivotsky, a twelve year old boy who was born in Jerusalem, want his passport to show that he was born in Israel.  Preventing that is the US government's policy of neutrality with regard to which nation can claim Jerusalem for its own, and its belief that an official US document showing Jerusalem to be in Israel would complicate matters.  That runs up against a 2002 law passed by Congress which allows US citizens born in Jerusalem to have their passports show Israel as their birthplace.  Bush and Obama refused to do so, arguing that the law encroached upon the president's essentially exclusive power over foreign policy.  The Court doesn't often get involved in such matters, but it will here.

A couple of criminal cases are on tap, both of seemingly limited interest since they involve interpretation of Federal statutes, but which have attracted numerous amici to press issues beyond that.  One case will determine whether possession of a short-barreled shotgun is a violent felony under the Armed Career Criminal Act; that's attracted the attention of groups on both sides of the gun rights debate.  The other concerns the Sarbanes-Oxley Act, which makes it a crime to destroy "any record, document, or tangible object" with the intent to impede an investigation.  The defendant had destroyed three undersized fish in an attempt to avoid a civil citation.  That case has also attracted a flock of amicus briefs, mainly addressing the ridiculous overcriminalization of Federal law.

Down in Columbus, one criminal case on the corrupt practices act, which we'll discuss on Thursday, and a death penalty case gets affirmed in State v. ThompsonThompson had been stopped by a cop for playing loud music, and wound up killing the officer, shooting him four times, the last two with the gun pressed against his head.  Not much in the way of novel legal issues, although somewhere down the road some Federal court might find interest in an ineffective assistance claim.  The defense failed to hire an investigator, which the opinion dismisses, noting that there had been a mitigation specialist appointed; the opinion quotes the trial judge as saying that the latter "was supposed to be interviewing people and getting information," betraying a profound misunderstanding of the role of a mitigation specialist and that of an investigator.

The most notable thing about the opinion is the split:  a 4-3 vote, with three judges saying that the death penalty in this case was disproportionate.  O'Neill's vote is understandable; he's concluded that the death penalty is unconstitutional.  The vote of the other two is not necessarily surprising:  Thompson had no real criminal record, and Pfeifer and Lanzinger conclude that his "history, character, and background" make a death sentence unwarranted.  But even ten years ago, the murder of a police officer, especially with these facts, would have come out 7-zip for death.

Down in the courts of appeals...

Motions to withdraw a plea are extraordinarily futile endeavors, at least on the appellate level; I can think of only a couple of decisions I've read in the past several years where a court had reversed a trial judge's denial of a motion to withdraw.  About the only avenue is persuading the court that you were actually innocent, or at least had a valid defense to the charge.  The defendant in State v. Spurgeon tries to avail himself of that argument in a domestic violence case, claiming that recorded phone calls with his wife would exonerate him.  The 2nd District rejects the claim, noting that Spurgeon knew of the phone recordings before he made his plea.  We don't know if the phone calls were truly exculpatory, but if they were, the result seems harsh; sure, there's an interest in finality of judgments, but that should be trumped by actual innocence.

The defendant in State v. Orr tries to put the trial judge in a bind:  he refuses to accept the appointment of an attorney for him, but also refuses to answer the judge's questions regarding his waiver of counsel and his right of self-representation.  That only goes so far; the judge appoints an attorney for him, and the 8th affirms, holding that Orr had relinquished his right to self-representation by his conduct.  That was a pretty easy call; in one hearing, Orr announced that he was holding the trial judge in contempt, and called him a criminal. 

Looks like I'm going to have to start dispensing an award for the Bullshit Non-Traffic Stop of the Month.™  In State v. Moorer, the police observe Moorer and another male "walking diagonally across the street in a southbound direction toward the corner store located at the east side" of the street.  The cops drove the cruiser through an alley to come up behind the two men, then stopped them on "suspicion of jaywalking."  One had a gun, and the 10th District affirms the denial of the motion to suppress.

If you've got a rape/kidnapping case where you're going to be arguing allied offenses, check out the 3rd District's decision in State v. Johnson.  It not only finds that Johnson's taking the victim from an alley to underneath the porch of a nearby apartment building not an "act of asportation distinct from the attempted rape either in time or in function," it contains a wealth of citations to other cases to the same effect.

Important precedent comes in the form of the 4th District's decision in State v. Pierce, where the State appeals from the judge's grant of a Rule 29(A) judgment of acquittal, claiming "the trial court erred as a matter of law by holding that the State of Ohio must demonstrate, as an essential element of proving a violation of Ohio Administrative Code sections 1501:31-15-11(B)(1) and 1501:31-15-11(F)(14), that a deer is not a 'captive white-tailed deer' or a 'domestic deer' as those terms are defined in R.C. 1531.01."  Testimony you're unlikely to hear in a Cleveland courtroom:

The wildlife officer testified regarding the deer that were seized, describing the second deer in particular as a "world class deer," "Boone and Crocket status," "highest level that a deer could possibly rank," and a "once in a lifetime animal."

"Boone and Crocket status"?  Really?  Anyway, the 4th District affirms, nobody bothering to raise the question of how the State gets to appeal an acquittal. 

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