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Case Update

One of the things we learned last week is that there is a Federal statute prohibiting making "a harangue or oration, or uttering loud, threatening, or abusive language in the Supreme Court building."  No, it wasn't Antonin Scalia who was the target of the law because of his latest biting dissent, but eight individuals belonging to 99Rise, who stood up in the gallery on Wednesday just after the justices took their seat and loudly declaimed the Court's 2010 decision in Citizens United, which removed limits on campaign donations by corporations and thus provided another waypoint on our glide path to plutocracy. 

The Court did manage to hand down two decisions last week, of no particular interest to me or presumably you (multidistrict litigation and whistleblower protections), but it also heard argument in yet another dog-sniff Fourth Amendment case, Rodriguez v. US.  We'll talk about that on Wednesday.  It also agreed to hear a challenge to Oklahoma's three-drug protocol the state now uses for executions.  Four inmates had contested the procedure, and two weeks ago the Court, by a 5-4 vote, refused a stay.  One inmate was executed, and the next is scheduled to be killed on Thursday.  No stay has yet been granted.  Well, that's one way to moot a case.

The Ohio Supreme Court was busy, too, coming down with a big case on the use of statement a defendant makes while being examined for incompetency or evaluated for his NGRI plea.  We'll talk about that one on Thursday. 

We haven't checked out the courts of appeals in a while, so let's do that now.

In State v. Brown, Brown is stopped for a traffic violation, and placed under arrest for marijuana possession.  He invokes his Miranda rights for further questioning, but when the officer asks if he has any other contraband on him and explains the consequences of conveying drugs into a jail, Brown relents and admits he has heroin hidden in his underwear.  So the Miranda violation gets those drugs suppressed, right?  Wrong; the 2nd District agrees with the trial judge in applying the inevitable discovery doctrine:  the drugs would've been found anyway during the booking search at the jail.

A nice search case out of the 9th District in State v. LovePolice stopped Love's car to arrest his passenger, who had outstanding warrants, and then began to question Love about whether he used drugs and had any in the car.  For reasons known only to him and his god, Love invited them to search the car, and sure enough, they found drugs.  The 9th tosses the search, though, finding that the cops had no reason to further detain Love to ask him questions, and for that reason his consent wasn't freely given. 

In State v. Frymire, the 12th District holds that to be convicted of complicity in an offense involving a deadly weapon, the jury has to find that the defendant had foreknowledge that a weapon would be used.  The panel relies on the Supreme Court's decision in Rosemond v. US (discussed here) and the 8th District's decision in State v. Shabazz (discussed here).  Shabazz is in front of the Ohio Supreme Court, so we'll see how that goes.

Another blood-from-stone experiment is rejected by the 6th District in State v. Jennings, where the trial court had ordered the defendant to pay costs of confinement and appointed counsel fees.  The panel found this to be error, noting that the Jennings hadn't graduated from high school and had never held gainful employment.  And then there was the little matter of him not being eligible for release from prison for forty years. 

A rare grant of an application to reopen an appeal comes in the 8th District's decision in State v. Eaton, where the court holds that the judge should have inquired whether the offenses of aggravated robbery and involuntary manslaughter should have merged, that trial counsel was ineffective for not raising the issue, and that appellate counsel -- who'd filed an Anders brief -- was ineffective for not raising the issue of trial counsel's ineffectiveness.  This comes just a week after the 8th had decided in State v. Velez (discussed here) that the two offenses didn't merge in that case.  Those aren't inconsistent results, though; whether the offenses are allied depends upon the facts.

Meanwhile, what's up with all the Anders briefs?  The 12th District handed down fourteen decisions last week.  Eight of them were resolved on Anders briefs.  One of the cases I reviewed for the update this week was the 6th District's decision in State v. Ahlers.  It's not a short opinion, running twenty-three paragraphs, and Ahler's basic claim is that the prosecutor breached the plea agreement in his robbery case:  it required the State to stand mute at sentencing, but instead the prosecutor spoke up and disputed Ahler's account of how he came into possession of the stolen property.  The panel gives thoughtful discussion to the issue, noting some prior case law which holds that an agreement to stand mute doesn't preclude the prosecutor from all participation in the sentencing hearing; it "merely restricts the government from attempting to influence the sentence by presenting the court with conjecture, opinion, or disparaging information," but does not prohibit them from providing "relevant factual information."

It wasn't Ahlers' attorney who made this argument, though, it was Ahlers; the attorney had filed an Anders brief, and Ahlers proceeded pro se.  Well, if a court takes twenty-three paragraphs to discuss a pro se brief, isn't it reasonable to assume that an attorney could have come up with an argument or two?

I've always had problems with Anders briefs; it's the appellate equivalent of getting up for opening statement at trial, telling the jury you've got no defense, and walking out on your client.  There's a difference between an argument that's a loser and one that is frivolous, and it's not a fine line.  Appellate lawyers need to remember that.


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