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Case Update

Back in 2002, Congress passed a law allowing U.S. citizens who were born in Jerusalem to claim that they were born in Israel.  Pursuant to that law, Menachim Zitovsky's parents requested the U.S. State Department to issue him a passport stating that, but the State Department refused.  That led to a thirteen-year legal battle, and on Monday, the executive branch emerged with winner; in Zitevsky v. Kerry, SCOTUS held that the president retained the sole power to recognize foreign governments, and that included what to put on passports.  There was much wailing and gnashing of teeth from the chattering class, and if you're so inclined, you can read about it here.

scalia commencment.pngOnly one decision?  There's a reason for that.  SCOTUSblog kindly provides us with a map of the various commencement speeches and other endeavors the justices provided last week.  Those other endeavors included this:

On May 11, Justices Ruth Bader Ginsburg and Stephen Breyer served as judges at the Shakespeare Theatre Company Bard Association's 2015 Annual Mock Trial, where they heard arguments on whether the fictitious Family Court of La Mancha had properly deemed Don Quixote mentally incompetent and therefore in need of a guardian.

Don't know how that worked out, but if the Court Psychiatric Clinic here was involved, Quixote had clear sailing. Based on my experience, the Clinic's apparent definition of competence, at least in terms of standing trial, is the ability to distinguish the judge from a cabbage. 

The cupboard down in Columbus was equally barren, with not even a disciplinary or tax decision.  The only thing worth writing about there is two oral arguments coming up next week.  The first features State Shabazz, and 8th District decision (discussed here) which held that to convict someone of complicity in a gun crime, the State had to show that the defendant had some foreknowledge that a gun would be used.  It's based on the Supreme Court's decision to the same effect in Rosemond v. US (discussed here), and its potential effects are huge.

The second is State v. Klembus, another 8th District decision (discussed here), concerning a statute which provides that a sixth drunk driving offense within 20 years fourth degree felony with a minimum sixty day sentence, unless the prosecutor includes a specification; in that case, it's still a fourth degree felony, but now with a minimum sentence of one to five years.  The 8th tossed it for the due process violation, so we'll see how that goes.

In the courts of appeals...

A defendant is entitled to counsel at all critical stages of the proceedings, and one would certainly think that hearing to determine whether he should be allowed to withdraw his plea falls into that category.  Unfortunately, most courts allow the attorney to sit that one out if he feels that it's not in his client's best interests.  The 8th is particularly bad at this; I once had a case where they gave a pass to the attorney's arguing against the client's motion. 

The 1st District's decision in State v. Foreman, then, comes as a surprise.  One of Foreman's reasons for seeking withdrawal was his contention that his clients had not been honest with him.  As the panel noted, this created a conflict of interest for his lawyers.  The State argued that Foreman wasn't even entitled to counsel at the hearing, and the panel dodges that issue, instead holding that Foreman was represented, and that because of the conflict "the ineffectiveness of counsel is presumed."

The defendant breaks into a house and robs four people at gunpoint.  Four convictions for aggravated burglary, or just one?  The 7th District gives the correct answer - one - in State v. Burton.  The State relied upon the Supreme Court's recent decision in State v. Ruff (discussed here), and argued that offenses weren't of similar import if they caused separate, identifiable harms.  Numerous courts had held that a burglary was an offense directed at the dwelling, not the individual, and that the defendant could be convicted of only one count, regardless of how many occupants there were.  The panel holds that despite the harm to multiple occupants, the theory that "at the heart of an aggravated burglary is the trespass" survives Ruff.

The defendant in State v. Francis pled guilty to four child rape counts and was given two consecutive 20-to-life sentences.  He wanted to appeal, but his lawyer told him that his representation ended at the trial court level, and to get somebody else.  Francis got some assistance from the Ohio Public Defender's office in filing a pro se appeal, but it was one day late, so it was dismissed.  He tried to file a delayed appeal several months later, but that was denied.

So he filed a post-conviction relief petition, arguing that the lawyer's refusal to file an appeal constituted ineffective assistance of counsel.  The 7th District affirms the denial of the petition, holding that the lawyer was under no duty to file the appeal because he was retained only for the trial court proceedings.

Sometimes, courts get so caught up in the law that they ignore basic principles of justice.  Francis probably did some terrible things, but he's likely to spend the rest of his life in prison.  He was entitled to one appeal as of right, and he never got it.


Recent Entries

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    When not to decide cases on allied offenses and pre-indictment delay
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    To the barricades!
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  • January 3, 2018
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    We talk about me a lot, but there's some other stuff, too
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    He's baaaack
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  • November 15, 2017
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    Plea withdrawals (again), sexual predator hearings, and an appellate law question
  • November 7, 2017
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    What's Up in the 8th
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