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Case Update

SCOTUS had oral arguments in two criminal cases last week.  One, Yates v. US, we'll talk about on Thursday.  The other was Johnson v. US, which presented the Armed Career Criminal Act, the federal statute that imposes a fifteen-year mandatory minimum prison sentence if the defendant has been convicted of three prior "violent" felonies.  More particularly:  does a state felony conviction for possessing a sawed-off shotgun qualifies under the ACCA's residual clause, which defines a violent felony as one that "involves conduct that presents a serious potential risk of injury"?  This is the fifth time in seven years that SCOTUS has had to tackle the residual clause, and even the justices lamented that the previous four had provided little guidance.  Those that bothered to comment at all; Scalia, who topped all justices with an average of 19.6 questions per oral argument last year, asked only two, and Kennedy slipped into Thomasonian silence.

The big news out of the Court, though, was the 6th Circuit's 2-1 decision upholding the gay marriage ban in Ohio, Michigan, Kentucky, and Tennessee.  It was the first victory for opponents of same sex marriage; the 4th, 7th, 9th, and 10th Circuits have all upheld lower court decisions striking down the bans.  A month ago, the Supreme Court denied cert in appeals from those decisions.  The 6th Circuit decision creates the split in circuits that will probably compel the Court to have the final say in the matter.

It's hard to make a living doing assigned criminal cases, given the ridiculous hourly rates.  The most the State will pay is $60 and hour for in-court and $50 an hour time spent out of court, and many counties pay less than that.  But Ben Swift figured out a way.  I kid about how I'm finding it easier to get things done now that I've gone to a 30-hour day, but Swift apparently made that a reality:  in 2008, he billed four Ohio counties 2,967 hours for court-appointed work, for a total of nearly $132,000.  If you're wondering how the math works out, it doesn't:  that would require someone to work an average of over eight hours a day for 365 days.  That earns him a two-year suspension, with one year stayed on conditions.  But barely; three justices would have imposed an indefinite suspension. 

The Ohio Supreme Court also handed down decisions in two criminal cases, which we'll discuss on Wednesday.  Let's head over to the courts of appeals...

There's case law holding that self-defense, and provocation for an inferior offense, like aggravated assault or voluntary manslaughter, are not necessarily mutually exclusive, but, as the 2nd District explains in State v. Elliott, you don't automatically get instructions on both, either.  McKee was the passenger in Elliott's pick-up truck, and the two got into fight, which continued after the truck crashed, with Elliott ultimately getting back into the truck and running over McKee.  The court correctly observed that Elliott, who contended that the fight started because McKee pointed a gun at him, never claimed to be acting out of rage or sudden passion, but testified only that he was in fear, which warranted an instruction on self-defense, but not aggravated assault.  The court also notes that provocation requires a two-step analysis:  the provocation must be objectively reasonable enough to incite the defendant to use violence, and the defendant must subjectively be acting out of rage.

If you've got a case involving a charge of driving while impaired on drugs, as opposed to alcohol, the 4th District's decision in State v. Husted is a must-read.  Husted was found sleeping in her car in a gas station, and gave confusing answers to the officer's inquiries, like saying that she had to check on her child in the passenger seat, when there was no child in the car.  A cut-off straw fell onto the seat when she got out of the car, and when the officer asked if she'd been snorting any drugs, she said she had, but specified it wasn't meth or cocaine.  And, of course, there was slurred speech, unsteadiness, bloodshot eyes...

Slam dunk, right?  Wrong.  Citing numerous other cases along the same line, the panel reverses.  Here's the money quote:

Precedent requires that in a prosecution for operating a vehicle or being in physical control of a vehicle while under the influence of drugs of abuse, the court must grant a Crim.R. 29 motion for judgment of acquittal if the state fails to present evidence that the defendant, even though impaired in some manner, was in fact under the influence of a drug of abuse.   This might occur in a case where there is no test conducted that demonstrates consumption of a drug of abuse and the defendant has not admitted to the consumption of any drug of abuse.

Is a defendant entitled to jail-time credit for the period he's in an inpatient drug treatment facility?  That question doesn't get answered in State v. Quarterman, because Quarterman has completed his prison sentence by the time the case gets up on appeal, so it's moot.  But the decision does note that there's been a change in the law.  Before, a trial court could reconsider its calculation of jail-time credit only if there was a mathematical error; if resolution depended upon a legal question, like in Quarterman's case, appeal was the only remedy.  But now a judge has continuing jurisdiction to decide both.

Of course, that leaves Quarterman's question unanswered.  My curiosity piqued - and this is why you guys pay me the big bucks - I looked it up.  According to the Supreme Court's decision in State v. Napier, it depends on whether residency at the treatment facility constitutes "confinement":  the degree to which an offender is "free to come and go," including whether express permission is required to leave, and the extent to which he is "subject to the control of the staff regarding personal liberties." 

Now you know.

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