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Case Update

A few years ago, I served as a moot court judge, and what I learned from the experience is that I don't want to be a moot court judge again.  The issue was whether a state which allowed private groups to buy a license plate with a special message could limit the plate's content, consistent with the First Amendment.  I wound up wading through about sixty pages of briefs and "background materials," although I do admit it was interesting stuff.  One of the judges on the panel did patent work, and the other had been retired for six years.  Go figure.

Maybe SCOTUS will ask us to sit in as guest justices for the oral argument this morning in Walker v. Sons of Confederate Veterans, which features that precise issue:  whether the State of Texas could refuse the group's request to issue a license plate featuring a Confederate flag.  With the special insight gained from my brief tenure on a pretend bench, I'll keep you posted.

Otherwise, the Court's gearing up for two momentous decisions:  the possible fate of Obamacare, in King v. Burwell, to be argued at the beginning of April, followed up at the end of the month with two cases on same-sex marriage, one on the power of states to ban it, the other on the power of states to refuse to recognize gay marriages granted in other states.  There'll be a total of two and a half hours of argument on those, one and a half on the former and one on the latter, with seven attorneys taking part.

No criminal decisions from Columbus, but one pertinent to appellate lawyers:  in Disciplinary Counsel v. Eisler, the attorney earned a two-year suspension, with one stayed, for making an oral argument in an appellate court when his license was under suspension for failing to comply with the CLE requirements.  Speaking of oral arguments, while the court has five cases scheduled this week, only one, In re D.S., presents anything resembling a criminal issue.  D.S. admitted to two sexual offenses, occurring when he was 13 and 14, and after he did a year in DYS, the juvenile court held a sex offender classification hearing and labeled him a Tier II offender, requiring him to register every 180 days for 20 years.  He's claiming that the juvenile court lacked jurisdiction to hold the hearing after he was released, and that application of the statute, RC 2152.83, in that manner violates his right against double jeopardy.

In the courts of appeals...

Marcus Turner went to trial on charges of aggravated murder, felony murder, felonious assault, and weapons under disability.  The jury found him not guilty of the first charge and guilty of the last, but hung on the middle two.  Turner claimed that retrial on those two was barred by the collateral estoppel aspect of double jeopardy:  the acquittal constituted a finding that he didn't cause the death of the victim, and that finding would carry over to a new trial.  The 9th District in State v. Turner concludes that the acquittal doesn't bar retrial:  the jury could have acquitted him of the aggravated murder because that crime required a purposeful mens rea, but felony murder requires only the intent of the underlying crime, in this case, knowingly. 

Prosecutors in domestic violence cases frequently find that the victim now claims the detailed account of the abuse she gave to the police abuse was false or that she "doesn't remember" what happened.  Calling her anyway and impeaching her with the statement is barred by EvidR 607, which prohibits a party from impeaching its own witness.  The remedy?  EvidR 614, which allows the court to call someone as a witness, in which case both parties can impeach.

That's what happened in State v. Brown, and the defendant complains that the State used 614 to circumvent 607.  The 11th District noted that it had held in prior cases that the "most prudent course" would be for the judge to determine that the witness was indeed varying from a prior statement, but that the decision is within the judge's discretion.  The opinion spends some time asserting that 614 can't be used as a "subterfuge" for circumventing 607, but it's hard to see how a defendant is ever going to mount a successful challenge to the judge's calling someone as a court's witness. 

In State v. Debrossard, the police had a tip that Debrossard was carrying drugs, stopped the taxi he was riding in, and discovered a large quantity of pills.  The 4th District finds that the stop was valid, and that the police could legitimately pat Debrossard down.  The problem?  The cruiser's dashboard camera showed the police immediately going through Debrossard's pockets, pulling out papers and examining them, and the cops were dumb enough to admit that they were looking for drugs.  A patdown's for weapons; if the police come across something they can immediately identify as contraband during the patdown, that comes in under the "plain feel" exception.  But you can't conduct a patdown for drugs from the start.

Another great search decision in State v. Eggleston, which provides the Bullshit Traffic Stop of the Week.™  The cops stopped Eggleston for a "loud noise" violation, then spent about ten minutes waiting for the K-9 unit to show up before even starting to write the ticket.  There's not a bright line on exactly how long the cops can detain a person while waiting for man's so-not-best-friend, and the issue becomes complicated because the detention can be prolonged if the cops develop additional suspicion after the stop, such as "nervousness" by the occupants, having an unusual number of air fresheners in the car, or the occupants giving inconsistent explanations of their travel.  The 11th District tosses the search, and here's the money quote: 

Once it is determined that a delay occurred for the sole purpose of conducting a K-9 "sniff," the question is not whether the delay was undue, but whether the delay was supported by a reasonable, articulable suspicion of drug activity.

The opinion contains a wealth of citations on other similar cases, and if you've got one involving a detention for a K-9 search, this is the place to start.


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