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Case Update

The good news for Samantha Elauf is that she gets to work at Abercrombie & Fitch, despite the company's turning her down for the job because she wears a Muslim headscarf.  That was the result of the Supreme Court's decision last week in EEOC v. Abercrombie & Fitch.  The bad news for Samantha Elauf is she gets to work at Abercrombie & Fitch, a company whose advertising method seems to embrace concepts of child porn, having some years ago run an ad campaign for thongs marketed to ten-year-olds, with slogans like "eye candy" and "wink wink" printed on the front.

The other decision was Elonis v. US, which I talked about on Thursday.  I'd suggested that the opinion was narrowly written, of little consequence, and with no application to Ohio law.  I got a call from my buddy John Martin telling me that I didn't know what I was talking about, and he may be right.  We'll find out when I take another look at Elonis later in the week.

The Ohio Supreme Court's effort to limit wrongful imprisonment awards continues apace with last week's decision in Bundy v. StateBundy had been classified as a sexually oriented offender under Megan's Law, with a requirement he register every October.  He was reclassified by the attorney General as a Tier II offender when the Adam Walsh Act took effect, and now had to register twice a year.  When he failed to show up for his March registration, he was convicted and sentenced to three years in prison.

He was released two years later after the Supreme Court held in State v. Bokyke that the AWA couldn't be applied retroactively, and promptly sued the State for wrongful imprisonment under RC 2743.48.  One of the requirements of the statute is what's called the "actual innocence" standard:  a common pleas court must determine that the offense "either was not committed by the individual or was not committed by any person."  The five-member majority concludes that just because an individual is convicted of an offense later found unconstitutional doesn't mean he's actually innocent of the offense.

One can debate the decision -- since Bundy was legally under no obligation to register at the time in question, one can certainly argue that no offense was committed -- but the upshot is clear:  you've got to be really, really innocent to qualify for compensation under the statute.

The court handed down one other decision this week, in State v. Anderson.  Anderson had been sentenced to 17 years in prison after his convictions for rape and kidnapping, and one would think the least of his problems would be that the trial court had also imposed a no-contact order with the victim.  The court finds that a no-contact order is a community control sanction, and you can't impose a community control sanction with a prison sentence.

In the courts of appeals...

The 1st District finds in State v. Jackson that the judge erred in not permitting the defendant to allocute before imposing a prison sentence for a probation violation.  While that might not seem a big deal, the 3rd, 5th, 7th, 8th, and 11th Districts all have held that a defendant has no right to allocution at a probation violation hearing; he had his chance to talk at the sentencing hearing.  I think the 1st District has the better of the argument:  the purpose of the allocution is to allow the defendant to argue in mitigation of his anticipated sentence, and that holds true as much at a probation violation hearing as it does at a sentencing hearing.

A reminder in State v. Dozier that just because the cops illegally enter a house you're in doesn't mean the evidence they find against you has to be suppressed:  you've still got to show that you've got standing to assert your 4th Amendment rights.  Dozier didn't testify, and the 2nd District finds that he failed to meet his burden of showing that he was a resident or an overnight guest.  Just being there doesn't cut it.

And a reminder in State v. Long that the U.S. Supreme Court's decision in Miller v. Graham doesn't mean that a juvenile can't be sentenced to life imprisonment without parole; it just means that the sentence can't be imposed automatically.  Long was given two consecutive LWOP sentences for killing two people, but the Ohio Supreme Court vacated the sentence, finding that the record didn't affirmatively show that the trial court considered Long's youth at sentencing. The 1st District concludes that at the resentencing hearing, the judge did precisely that.  The judge imposed the same sentence, and the court affirms.  Long was just shy of his 18th birthday when he committed the crimes.

The 9th District, which still reviews sentences under the standard established in the plurality opinion in State v. Kalish -- everybody else uses the standard set forth in RC 2953.08(G)(2) -- has a reputation for being hypertechnical, but it sure isn't when it comes to what a judge must say to meet the requirements for imposing consecutive sentences.  This quote from the opinion in State v. Barry should give you the flavor:

by stating that Mr. Barry "richly deserve[s]" a lengthy prison sentence and that Mr. Barry is "paying a very high price for" failing to rehabilitate himself following his previous convictions, the trial court makes clear that a consecutive sentence is being imposed in the instant case to punish Mr. Barry.

"Makes clear," huh?

Keep the change.  In State v. Ballard, the 12th District holds that the trial court erred in imposing an order of restitution for the return of the "buy money" the police used to get him convicted of trafficking in cocaine.  The court held that the police department wasn't a "victim."

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