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Case Update

The Supreme Court's original jurisdiction, in lawsuits between states, is usually exercised in cases involving water rights or some border dispute.  Not so with a case Nebraska and Oklahoma are asking the Court to hear, which seeks to block part of Colorado's legalization of marijuana.  The states contend that since marijuana is still illegal under Federal law, the Federal government should force Colorado to obey it.  Several commentators have called this "fair weather Federalism," noting that the attorneys general in Nebraska and Oklahoma had been rabid in their opposition to Obamacare, especially the requirement that states expand Medicaid.  Even though the Federal government would pay for expansion, the Supreme Court struck down the law as an invasion of state's rights.  Ilya Somin at the Volokh Conspiracy notes that if the two states prevail, they "will also have set a very dangerous precedent - one that conservatives are likely to rue in other areas." 

Only one criminal case up for argument this month, but it's a big one:  Rodriguez v. US presents the question of whether an officer can extend a completed traffic stop for a canine sniff.  We'll have more on that when it comes up.  Those playing the home version of "Can You Top This?" in the category of stupid immigration law enforcement will have added fodder on January 14, when the Court hears argument in Mellouli v. Holder.  Mellouli has been removed from the country and faces permanent banishment from his American fiancée, by virtue of hiding four Adderall tablets in his sock, which earned him a conviction of drug paraphernalia under Kansas law.  The Court has previously rejected removal for possession of a small amount of marijuana and a single tablet of Xanax, so there's some hope that reason will prevail.

Down in Columbus, the only news of consequence is the resolution of several cases in the wake of the court's November decision in State v. Johnson, in which it held that the good faith exception saved the use of a GPS tracker on a car prior to SCOTUS' decision in US v. Jones requiring a warrant.  The "resolution" consisted of sending four cases back to the courts of appeals for reconsideration in light of Johnson.  We'll delve more deeply into that on Thursday.  The court does resume oral arguments this month, but with the exception of a death penalty case next week, no criminal cases are on tap until February.

The latest episode in Lawrence Dibble's saga played out in the 10th District at the end of the year.  Back in 2010, two girls, one a minor, informed the police that a teacher had sexually assaulted the minor on school grounds.  The investigating detective got a warrant to search Dibble's reference, based on the girls' allegation that Dibble had taken digital photographs which might be on his computer.  The trial judge tossed the search, though, finding that the detective's reference to the older girl as a "victim" -- she was an adult when her interaction with Dibble took place -- constituted a false representation which invalidated the warrant.

The 10th District affirmed, but the Supreme Court made short shrift of that argument, reversing and holding that the trial court applied a hypertechnical meaning to the word "victim."  The trial court still found on remand that the warrant lacked probable cause, but upheld it under the good faith exception to the warrant requirement.  Last week, the 10th District reversed that.

The court first rejected the State's attempt to argue that the trial court erred in finding no probable cause.  While the State can appeal as a matter of right a decision granting a motion to suppress, here the trial court denied the motion, and the State was required to ask for leave to appeal the decision.

The more interesting aspect of the decision is how it treated the judge's analysis of the good faith issue:  the panel held that while the trial court considered the facial validity of the warrant, it did not consider whether the affidavit was so "bare bones" that the detective could not have had a good faith belief in its validity.

Dibble isn't out of the woods yet.  Rather than make its own determination, the panel remanded it back to the trial court.  Still, given that the judge had determined that "the information contained in the affidavit is insufficient to create a nexus between Defendant's home and illegal conduct that took place at the school," there's hope for him.

Habeas work is not for those with self-esteem issues; given the restrictions imposed upon the Great Writ by the 1996 "reforms" and subsequent Supreme Court decisions, the chances of prevailing make the Cleveland Browns look like a lock for the 2016 Super Bowl in comparison.  But the 6th Circuit's decision in Gumm v. Mitchell  breaks from that mold in a big way. 

The court reversed Gumm's 1992 aggravated murder convictions (his death sentence had been previously vacated on Atkins grounds), finding that the prosecutor had failed to disclose exculpatory evidence -- the opinion noted that a "small mountain" of it had been turned over in discovery during the habeas proceedings -- and had engaged in misconduct to boot, eliciting evidence of Gumm supposedly engaging in sex with horses and having a predilection for sex with children, and then arguing that to the jury.  You read that right.  The amazing part of the decision, to me, was what it takes to get Ohio courts to recognize prosecutorial misconduct.  "Well, yeah, the prosecutor told the jury the guy screwed animals and children, but what's the harm?"

The decision's treatment of Ohio's post-conviction relief statute also bears comment.  As the opinion notes, that statute contains "stringent" requirements, especially for second petitions or petitions following beyond the short 180-day period after the transcript in the appeal has been filed:  in most circumstances, the trial court has no jurisdiction to even consider the petition.  That's exactly what happened to Gumm.  Under the AEDPA, the 1996 law limiting habeas, state court decisions on the merits are entitled to great deference.  But the Gumm court holds that since the state court decided it didn't have any jurisdiction to hear the post-conviction claim, there wasn't a decision on the merits, and so it could review Gumm's claims de novo.  That's big for habeas practitioners in Ohio.


Recent Entries

  • January 17, 2018
    What's Up in the 8th
    When not to decide cases on allied offenses and pre-indictment delay
  • January 11, 2018
    Case Update
    Three new decisions from the Ohio Supreme Court
  • January 10, 2018
    To the barricades!
    Why I'm a threat to the Ohio state government
  • January 5, 2018
    Search and seizure in the digital age
    Do the cops need a warrant to get cell phone data?
  • January 3, 2018
    What's Up in the 8th
    We talk about me a lot, but there's some other stuff, too
  • January 2, 2018
    He's baaaack
    So I thought I'd start my first post in six weeks by explaining why it's my first post in six weeks. Ever run into somebody and ask the obligatory question, "How are you doing?" And they proceed to tell you...
  • November 15, 2017
    What's Up in the 8th
    Plea withdrawals (again), sexual predator hearings, and an appellate law question
  • November 7, 2017
    What's Up in the 8th
    Don't listen to prosecutors about the law, good new/bad news jokes on appeal, and the Byzantine course of a death penalty case
  • October 24, 2017
    What's Up in the 8th
    Trying to change the past
  • October 16, 2017
    En banc on sentencing
    The 8th District takes a look at what State v. Marcum means