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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

The Republican primary debates got off to a raucous start in Cleveland last week, garnering an audience of 24 million, the largest for a non-sporting cable television show in history.  They tuned in for the same reason NASCAR viewers watch car races:  to see a spectacular crash.  And they were amply rewarded; while Trump's latest bout of boorishness generated most of the post-debate chatter, several other candidates complained about the "gotcha" questions, to the point where some Republicans were claiming that Fox News wasn't "fair and balanced" after all.  It isn't, but the accusation is akin to charging Goebbels with being anti-fascist.

Our governor Kasich did well.  His explanation of his position on gay marriage, and his telling of recently attending a wedding of a gay friend, elicited heart-felt applause.  That just shows you how hard and far the pendulum has swung on the issue of gay rights.  In the first Republican debate in 2012, the audience booed a gay soldier

If there was a gotcha question to be asked, it would be:  "Senator/Governor/Whatever, what's your position on sentencing reform?"  It's likely that every one of them supports it.  It's a complicated issue, though, and I'm not sure any of the candidates would like the idea of having thirty seconds to explain to a conservative group why they think people shouldn't go to prison for so long, and that a fair number of them in there should get out.  It's something I haven't heard any of the candidates talk about, with the exception of Rand Paul, who's been a driving force in the Senate for reform.  But frankly, I've got as much chance of waking up on January 20, 2017 to get ready for my inauguration as the 45th President of the United States as he does.

That's probably the second most important issue of criminal law in the election.  The first is that by the time the 45th president is inaugurated on January 17th, 2017, four Supreme Court justices will be age 78 or older.  

No cases from Columbus, but the legislature was in action, passing a much-needed amendment to the post-conviction relief statute.  There are strict TIME limits for petitions, and while there's a way to get an untimely petition before the court, if you missed the deadline your hurdle requires proving that no reasonable fact-finder would have found you guilty.  That's the same standard as for insufficient evidence, and you know how those turn out.

The amendment increased the time limit from 180 days to a full year.  (The time starts to run from the date the appellate transcript was filed, or, if no appeal was taken, the last day on which that could've been done.)  I've had people who'd lost an appeal come to me to explore post-conviction relief, but by then the time had run; there aren't a lot of courts which get the briefing, argument, and decision writing done within six months.  I had a case in the 10th District where it took almost 10 months to come up with a decision - after oral argument.  So this is good. 

One point, though:  you can file a petition for post-conviction relief even while an appeal is pending.  If you're representing someone on an appeal, it's a good thing to advise them of the possibility of pursuing a PCR petition.  In fact, a few years back the 6th Circuit held that it was ineffective assistance not to do so.

In the courts of appeals...

Everybody recognizes that a conviction, especially for a felony, is extremely damaging to a defendant's work prospects and the ability to integrate himself back into the community.  Everybody, it seems, except for the courts who make decisions about expungement.  Last year, in State v. Aguirre, the Supreme Court denied expungement because the defendant still owed restitution of $14,000; under the expungement statute, a defendant must have "completed" his sentence, and the court ruled that included payment of restitution.  The 10th District takes that one step further in State v. Gainey, holding that Gainey's failure to complete 100 hours of community work service - she was 25 hours short - required the trial judge to deny her application.  Of course, completing those 25 hours and re-applying for expungement is an option, but there's a problem:  community control sanctions were terminated, the probation department closed its file, and it now claims that it can't help Gainey out with the work service requirement.

The 11th District rejects the defendant's claim that he was entitled to a voluntary manslaughter instruction in State v. Yates, but the concurring opinion makes an interesting point.  The law on jury instructions is that a party is entitled to have an instruction given if it is a correct statement of law and there is sufficient evidence to warrant it.  But there are innumerable cases holding that the standard of review is abuse of discretion.  You can't hold on the one hand that a trial court must give an instruction if it's warranted by the evidence, and on the other hold that the court nonetheless has the discretion to refuse to give it.  The concurrence basically suggests de novo review:  "Based on a review of the evidence in a light most favorable to the party requesting the instruction, the instruction must be given if there is sufficient evidence."

This also crops up frequently with evidentiary rulings, with courts invariably holding that the decision of whether to admit or exclude evidence is reviewed for abuse of discretion, coupled with statements that an abuse of discretion is "more than an error of law."  Well, all that's dicta; you won't find a single case where an appellate court held that some piece of evidence was barred by the hearsay rule, but the judge nonetheless had the discretion to admit it.  There's a bunch of new cases, like the 2nd District's decision in State v. Beechler, which correctly holds that "no court has the authority, within its discretion, to commit an error of law."  If you're doing a brief where abuse of discretion is the standard, make sure you include that.  


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