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Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Case Update

No decisions from SCOTUS last week, as everybody prepares for the oral arguments in the same-sex marriage cases two weeks from tomorrow.  SCOTUSblog reviews some of the amicus briefs which have been filed, including one from South Carolina which raises the absurd, albeit historically accurate, argument that since the Framers of the 14th Amendment intended to allow discrimination against women, they wouldn't have had any problems discriminating against gays.

SCOTUSblog has several interesting features, and one is the Petition of the Day:  each day, they highlight one of the ten thousand or so petitions for certiorari that the Court receives.  Friday's was Manzano v. Indiana, which presented the following issue:

Whether, when a criminal defendant seeks to vacate a guilty plea on the ground that defense counsel rendered ineffective assistance, in order to establish prejudice the defendant must show that but for counsel's errors he would not have pleaded guilty and would have insisted on going to trial (as this Court, all twelve federal circuits, and virtually all the states hold), or whether the defendant must also show that had he gone to trial he would have been acquitted (as the Indiana Supreme Court persists in holding).

Think somebody's pissed?

No decisions from the Ohio Supreme Court, and no oral arguments until May.  Not much on the criminal docket then, either.  One case of parochial interest is the disciplinary matter involving former Cuyahoga County judge Stephen Terry, who did five years in Federal prison for denying summary judgment motions in two foreclosure cases at the behest of county political majordomo Frank Russo.  Terry's contesting the recommendation of disbarment, arguing that an indefinite suspension would be appropriate.  It doesn't help that when the FBI tapped Russo's phone, it caught Terry calling him with the greeting, "Hey, it's your favorite judge!"

In the courts of appeals...

We all know that hearsay is something somebody said out of court, but is it also something somebody didn't say?  That's the situation in State v. Flannery, where Flannery appeals his conviction for aggravated menacing, arguing that the judge erred in not allowing him to elicit testimony from a witness that he didn't hear Flannery making a threat.  The judge concluded that this was hearsay, but the 1st District reverses, noting that the witness wasn't asked about a statement, but rather that "the question called for testimony about not hearing something."

The differences between a criminal trial and a probation revocation hearing are the subject of the 5th District's decision in State v. Boykins.  And differences abound.  The minimum requirements are

(a) Written notice of the claimed violations; (b) disclosure of evidence against him or her; (c) the opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses; (e) a neutral and detached hearing body; and (f) a written statement by the fact finders as to the evidence relied on and reasons for revocation.

But while the State has to prove guilt beyond a reasonable doubt, it only has to present "substantial evidence" -- less than a preponderance -- to prove a violation.  And the defendant doesn't have a right to allocution.  One more thing:  as the 4th District notes in State v. Johnson, the rules of evidence don't apply, so the court can allow otherwise inadmissible evidence. 

The police arrive at the door of an apartment to investigate a complaint of drug activity.  When the door is opened, they can smell burning marijuana.  Can they enter without a warrant?  That's the subject of the 2nd District's decision in State v. Striks, and it begins with the Supreme Court's decision in Welsh v. Wisconsin, where the Court found that exigent circumstances didn't exist for the pursuit of the defendant into his house for suspicion of driving while intoxicated, holding that "the exigent-circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense has been committed." 

That hinged largely, though, on Wisconsin law that made a first violation of its OVI law a non-criminal traffic offense that wasn't punishable by imprisonment.  What constitutes a "minor offense" has been the subject of numerous cases in Ohio, and there are some holding that a minor misdemeanor marijuana offense doesn't cut it.  The 2nd District finds, though, that the police had reason to believe that there was more than 100 grams on the premises, which is a fourth degree misdemeanor. 

There's a theory that the biggest casualty of the War on Drugs has been the Fourth Amendment, and you won't get an argument from me.


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