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Case Update

With most of the buzz from SCOTUS this week centering on the arguments a month from now on the Affordable Care Act (didn't we do this before?) and the gay marriage cases, an under-the-radar tidbit emerges from Justice Kagan's admission that goes hunting with Justice Scalia.  Well, better him than Dick Cheney, I suppose. 

The Court's argument docket has been filled for March, and one of the first cases up is Ohio v. Clark.  As my numberless legions of faithful readers know, the Ohio Supreme Court in Clark (discussed here), much to the astonishment of anyone who watched the oral argument, upheld the 8th District's decision that teachers' testimony about a child's statement concerning sexual abuse violated Crawford, because the teachers were "state agents" by virtue of their duties as mandatory reporters.  I explained the issues in Clark when SCOTUS accepted cert, I'll talk about the oral argument when it happens, and I'll favor you with my sage insights when the decision comes down.  Because that's the kind of guy I am. 

I'm not the kind of guy who's going to write about last week's Ohio Supreme Court decisions, because there weren't any.  Any that I'd want to write about or you'd want to read about, in any event.  There were four criminal cases argued last week, though, and we'll talk about one or more of them on Thursday.

In the courts of appeals... 

Ever have a misdemeanor case where you entered a no contest plea for your client with a stipulation to a finding of guilt?  Happens all the time.  Might not happen anymore, at least in the 6th District, after State v. Czech.  RC 2937.07 says a judge taking a no contest plea "may make a finding of guilty from the explanation of the circumstances of the offense."  While "explanation of the circumstances" isn't defined in the statute, it "necessarily involves, at a minimum, some positive recitation of facts," and a reference to the charge isn't sufficient.  And neither is the judge's saying that he had reviewed the complaint, as in Czech's case:  the plea gets vacated.

A horrible decision from the 2nd District in State v. MorefieldMorefield was convicted of two counts of aggravated menacing for having pointed a gun at two people.  He appealed the trial court's denial of an instruction on self-defense, but the panel decides that he wasn't entitled to one, because he denied that he'd pointed the gun.  While it's true that self-defense is in the nature of a "confession and avoidance" -- I admit the elements of the crime, but have justification for having committed it -- there's a boatload of case law holding that alternative defenses are permitted, even if they're contradictory.  Plus, last year, in State v. Wine, (discussed here), the Supreme Court rejected the idea that a defendant, in pursuit of an "all-or-nothing" defense, had the right to prevent the trial court from giving a jury instruction on a lesser-included offense.  That's not a perfect fit, but it affirmed the case law that a judge should give an instruction any time the evidence supports it, and that applies to self-defense as well. 

The State files a motion in limine seeking to exclude your expert's testimony, and, after a full hearing, the judge grants it.  You plead no contest to take it up on appeal.  But a ruling on a motion in limine is only preliminary, and you don't preserve any error unless you proffer it at trial, right?  Wrong; in State v. Johnston, the 2nd District holds that in some cases a motion in limine serves the same purpose as a motion to suppress, and appeal can be preserved on a no-contest plea. 

The defendant's family comes in, wanting to know if you can come up with a way to get him out from under the 18-to-life sentence he got after pleading guilty to murder five years ago.  You check the transcript and discover the judge didn't advise him of his rights to cross-examine his accuser, as required by Crim.R. 11(C)(2), so you file a motion to vacate the plea.  A slam-dunk, right?  Wrong; it's res judicata, according to the 10th District's decision in State v. Lowe, because although Lowe didn't appeal, it's an issue he could have raised on appeal. 

In Cleveland v. Thompson, the defendant files a motion for new trial after being convicted of domestic violence, and his attorney, a public defender, tells the court that he replaced the public defender initially assigned the case on the eve of trial, hadn't prepared for the trial, had never reviewed the discovery provided by the prosecutor, and didn't subpoena a witness to the incident.  The 8th District rejects the claim of ineffective assistance, noting that the attorney didn't tell the court at the beginning of the trial that he wasn't prepared.

The problem with that logic is that it would be one thing if Thompson was claiming the lawyer was unprepared, and the only evidence on that issue was the lawyer's statement at the beginning of trial that he was.  (And keep in mind that this wouldn't have been a response to a searching inquiry; it was probably an affirmative response to the simple question, "Are we ready to proceed?")  Here, there was ample testimony from the lawyer himself that he wasn't prepared for trial.  Why should the defendant be penalized for the lawyer's failure to 'fess up at the beginning of trial?

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