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Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Case Update

'Tis the holiday season, and I'd love to report that nine judges judging have released one golden decision, but no.  Well, not quite true; although SCOTUS' decision last week in Warger v. Shauers involved a personal injury case, it has application to criminal law as well.  Details aside, it holds that Fed EvidR 606(b) prohibits the use of a juror's affidavit to show that another juror lied during voir dire.  The only other decision came in Integrity Staffing Solutions v. Busk, which provides the caveat that if you decide to supplement your law income over the holidays by taking a job at Amazon, you won't be paid for the 25 minutes or so at the end of the shift that it takes to screen you to determine you haven't stolen anything from the warehouse.  Word.

There will be more momentous decisions down the road:  last week the Court granted cert on the question of whether Miller v. Alabama, which limits life sentences without parole for minors, applies retroactively.  And although there are no oral arguments scheduled for another month, a big one comes at the end of January, in Rodriguez v. US, which presents the question of whether a completed traffic stop can be extended for a canine sniff without reasonable suspicion or other additional justification.  What I find scary is that there's actually a dispute over that question.

The only news from Columbus is that the Clients' Security Fund shelled out $209,490 to 37 victims of attorney misfeasance at its December meeting, bringing the total amount of awards to more than $19 million since the fund's inception in 1985.  The announcement notes that "Ohio has more than 45,000 attorneys engaged in the active practice of law, and less than one percent of those attorneys have been involved in claims for the security funds," so there's that.

Haven't really checked out the decisions from the courts of appeals, so let's head on over there. 

One of the worst decisions I've ever had in a case I handled was State v. Drake, where the 8th District held that Drake's attorney hadn't rendered ineffective assistance in a plea withdrawal hearing despite the attorney's arguing to the judge that the motion to withdraw the plea should be denied.  The flip side of that is the 2nd District's decision in State v. Strickland, where the court reverses the denial of motion to withdraw a plea, finding that the trial court's examination of defense counsel at the withdrawal hearing, without providing Strickland with new counsel, violated Strickland Sixth Amendment rights.  The case shows the value of issue-spotting for appellate attorneys; Strickland's first attorney had filed an Anders brief.

The 11th District continues its hard line on delayed appeals in State v. Curry and State v. Grant.  Both defendants filed their delayed appeals within six months after the date of conviction, but the court dismisses the appeals, holding to its precedent that a defendant seeking leave to appeal must show a valid reason for the delay.  And valid reasons do not include ignorance of the time limits for filing an appeal.  To be sure, neither Curry nor Grant provide much in the way of reasons:  Curry gives none, and Grant claims that he didn't know about his right to appeal, a contention belied by the written plea agreement.  And some of the court's earlier cases involved lengthy delays.  (One was over two years.)  Still, given that appellate counsel is rarely appointed in cases involving guilty pleas -- as both cases were -- something less than a hypertechnical application of the rule seems warranted.

In State v. King, the 12th District holds that King's petition for post-conviction relief arguing ineffective assistance of counsel in failing to prepare for trial is barred by res judicata because King didn't raise it on direct appeal. (In fact, King didn't appeal at all.)  That's questionable; whether King's lawyer adequately prepared for trial would almost certainly require evidence outside the record, and couldn't be presented on direct appeal.  Many Federal circuits, including the 6th, require that any claim of ineffective assistance be presented by way of post-conviction proceedings, and not on direct appeal.  This is why. 

In State v. Smith, the defendant goes to trial on six felonies, all of which include gun specs, and elects to try the weapons under disability claim to the bench.  The jury acquits him on all six counts, but the judge nonetheless convicts him of the weapons count.  On appeal, Smith relies on the "issue preclusion" branch of double jeopardy, arguing that the jury's "midtrial" acquittal necessarily constituted a finding that he didn't have a weapon, and the judge was required to accept it.   Not so, says the 10th District; issue preclusion applies only to serial prosecutions, not a single trial...

The Child Protection Police are out in full force in State v. PhillipsPhillips visits a Walmart with her five children, who prove unruly, to say the least.  (One of them, upset that she wouldn't buy him an iTunes card for his iPod, called her a cunt.)  Walmart employees saw her grab the boy around the neck and upper torso and walk him back to the family van.  Phillips returned shortly thereafter, and the children were well-behaved from that point on, but by that time the police had been called, and Phillips wound up with a conviction for child endangerment.  Noting that the evidence showed no injuries whatsoever to the child, the 5th District reversed, concluding that "the discipline meted out by Phillips fell within the established parameters of "proper and reasonable parental discipline." 

Bizarro case of the weekIn State v. Robertson, the trial court holds that an inebriated passenger's knocking a cigarette out of the driver's hand, causing a crash, constituted sufficient operation of the vehicle to convict him of OVI.  The 9th District decides to the contrary.  


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