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Case Update

Sure, your interests are directed at the fact that NFL teams have opened training camps, which means it's just over a month until I get the payoff for the $230 I spent on DirectTV's football season package.  (And I suppose the NFL could be an appropriate subject in a legal blog.  I'm not clear on the evidence in l'affaire Brady, but I'm guessing I wouldn't do so well in my appeals if they were heard by County Prosecutor Tim McGinty instead of the judges in the 8th District.)  But if you're like me, you're focused like a laser beam on the oral arguments when the Supreme Court starts its 2015 term the first week of October.  The Court just released its schedule, and five criminal cases are on the docket the first two weeks.  Three of them concern the constitutionality of the death penalty procedure - two cases from Kansas and one from Florida - and another considers the retroactivity of the Court decision in Miller v. Alabama, which limited the power to sentence minors convicted of murder to life without parole.  The last deals with the proof needed to convict a public official of corruption under the Hobbs Act.

SCOTUSblog has come out with its annual StatPack, where you can learn all kinds of fascinating things.  Like that 41% of this last term's cases were decided 9-0, while in 26% the vote was 5-4.  (The previous year, fully two-thirds of the decisions were unanimous, and only 14% were split.)  One stat which confirms the suspicion that the Court is moving to the left is how frequently the liberal bloc justices wind up in the majority in divided cases:  Breyer (86%), Sotomayor (82%), Ginsburg (77%), and Kagan (75%).  That compares to Roberts (66%), Alito (52%), Scalia (48%), and Thomas (34%).

Down in Columbus, while there weren't any decisions from the Supreme Court (none that I'd write about, or you'd read), the legislature was busy.  It passed HB 6, which extends the statute of limitations for rape from 20 to 25 years, and provides that if there's a DNA match to the perpetrator after the 25-year period has expired, the State gets an additional five years to prosecute.  If the DNA match is obtained within the period, then the State gets the longer of the 25 years or 5 years from the DNA determination.

Another law that slipped under the radar - and a hat tip to local attorney Mark Gardner for bringing it to my attention -- is new RC 2901.20.  Determining the culpable mental state in a crime has led to problems, and the new law takes aim at that:  it provides that every new criminal offense has to specify the degree of mental culpability required, and that if it doesn't, the statute is void.  That's opposed to the present approach, which is that if the statute doesn't specify a culpable mental state, it defaults to recklessness, or strict liability if the legislature clearly manifested an intent to do that.  (And "clearly" lies in the eyes of the beholder.)  It only applies to new criminal offenses, though.

In the courts of appeals...

I've often felt that the policy of videotaping police interrogations - now required in murder cases - is one of the worst things to happen to defendants, and that's borne out by the 2nd District's decision in State v. Griffin.  Griffin claims that his confession to molesting his daughter involuntary because, among other reasons, he didn't have his glasses and so couldn't read the Miranda waiver form.  The videotape shows Griffin mentioning that he didn't have his glasses, but not requesting them.  That's not so bad, but then he confirms that his social security number and date of birth are valid on the pre-interview form, and reads aloud from the rights form.  All without his glasses.

The 6th District provides a great search decision in State v. Kiser.  The affidavit for the warrant alleged that a confidential informant who'd provided information in the past "which Affiant has been able to verify as true" had told the cops that he'd made arrangements to purchase cocaine from Kiser, and that he'd been in Kiser's house, where Kiser showed him "large amounts of cocaine."  The court holds that something more than a blanket statement that the informant has given reliable information in the past is necessary, citing to a case where it upheld an affidavit where the informant had worked for the police for many years, and his information had resulted in warrants, arrests, and convictions.

The court also holds that the warrant was defective because the police hadn't confirmed any drug activity, such as by engaging in surveillance or doing a controlled buy.  That also serves as the basis for finding that the warrant isn't saved by the good faith exception:

In this case, there is nothing in the record evidencing any attempts at corroboration prior to the execution of the warrant. No other independent, objective basis for reliance on the warrant was demonstrated.

In State v. Osborne, the 2nd District upholds the maximum 12-month prison sentence for possession of .3 grams of crack, apparently based on Osborne's previous conviction for crack possession ten years earlier.  (And this was after a guilty plea.)  The majority finds this is all good because it's within the statutory limit, and the judge put the stuff about considering the sentencing factors in the journal entry. 

The dissent's having none of it, though; after noting that HB 86 indicated a preference for treatment over prison for low-level offenders, Judge Froelich writes

The judgment that he serve the maximum penalty of 12 months in prison will cost the taxpayers tens of thousands of dollars, and all but guarantees that he will never receive treatment or be a contributing member of society.  The law does not require an affirmance merely because the judgment entry contains the copy-and-paste mantra that the trial court considered the statutory purposes and principles of sentencing. The common sense medical axiom non nocere, "first, do no harm," is certainly implicitly incorporated in those purposes and principles.

Word.

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