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Case Update

Ohio has contributed is fair share of significant Supreme Court decisions in criminal cases -- Mapp, Terry, and Roberts among them -- and it's slated to add to that collection with oral argument today in Ohio v. Clark.  If you put "'state v. clark' Crawford" in the search box on the right, you'll get my bloviations on the subject.  If you're not so inclined, the short version is that Clark's conviction for child rape was reversed because two teachers were allowed to tell the jury what the victim, who was declared incompetent to testify, told them about the abuse.  Both the 8th District and Ohio Supreme Court held that the teachers, by virtue of their statutory duty as mandatory reporters of abuse, were "government agents" for Crawford purposes, thus requiring that the child's statements be excluded as testimonial.  The Court's never ruled on the precise question of whether Crawford is limited to statements made to government agents, let alone who would be included as an agent.  I'll add to my bloviations with a post this week about the oral argument, and another when the decision comes down.  Your cup runneth over.

The Court did decide one criminal case last week, Yates v. US.  State and Federal wildlife officials had inspected Yates' fishing boat and found 69 grouper were too small.  They ordered him to port, but before he got there he tossed the fish overboard.  This resulted in is prosecution under the Sarbanes-Oxley Act, which makes it a crime to destroy "any record, document, or tangible object with the intent to impede, obstruct, or influence" a Federal investigation, even one that hasn't yet begun.  The case offered some opportunity to address prosecutor overreach and the Federalization of criminal law, but the Court, in a 5-4 decision, holds that Congress intended the phrase "tangible object" to include only an object "used to record or preserve information," and calls it a day.

In the past two weeks, the Ohio Supreme Court has issued three criminal decisions:  State v. White, State v. Brown, and State v. Black.  I am not making this up.  Black and Brown are simple:  the latter holds that a probate judge can't issue a search warrant (and I'm trying to figure out why anybody thought they should), and the former holds that the Interstate Detainer Act, which allows an incarcerated person to demand he be brought to trial on any pending charges, applies to a person held in a jail, as well as a state prison or correctional facility. 

White's a bit more complicated, and we'll talk about that later in the week.

On to the courts of appeals...

Sixty-seven cents an hour may be a fair wage in Thailand, but it doesn't cut it in Cleveland.  The judge in Cleveland v. Peoples had acceded to Peoples' request to be allowed to work off the $200 find in community work service, and the judge had ordered him to perform 300 hours of service to do so.  The court holds that "when community work service is ordered in lieu of the fine imposed, as opposed to a separate sanction or condition, the hours ordered should be commensurate with the fine."  Interestingly -- well, to me, anyway, but that's setting the bar pretty low -- the 8th has consistently held that felony sentences are not reviewed for abuse of discretion, but in Peoples it holds that misdemeanor sentences are.

Some judges don't penalize a defendant for going to trial, and some do.  That's not to say that the latter approach is necessarily wrong:  acceptance of responsibility is the first step toward rehabilitation, after all.  A judge just can't be explicit about it, as was the judge in State v. Noble:

You wasted this jury's time with this trial. There was absolutely nothing your attorney could do for you. You had no defense whatsoever. You committed every one of these crimes as clearly as could be.

The jury took every opportunity to look at it and scrutinize the evidence carefully, but this isn't a case where you had some legitimate defense to the claim, you just simply took a shot and hoped that the jury was dumb enough to buy some of these nonsensical arguments.

The 7th District holds that the trial judge "inadvertently" (???) created the impression "that the trial court imposed a different sentence upon Noble simply because he exercised his right to a jury trial," and remands for resentencing.

Kidnapping is a first degree felony, unless the victim is left in a safe place unharmed, in which case it's a second degree felony.  The 8th District explains how that works in State v. FisherWhether the victim is left unharmed is not an element of the crime, but in the nature of an affirmative defense, like proof of provocation in a voluntary manslaughter case; if the evidence shows it, the jury should be instructed on it.  "Releases" means an act of the defendant; the victim escaping doesn't count, but the defendant fleeing the scene does.  "Harm" does not include psychological harm.

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