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Case Update

The Pew Research Center takes a poll at the end of each Supreme Court term asking respondents whether they have a favorable or unfavorable view of the Court.  The last tally, a month ago, was 48-43 favorable.  That's the first time there was less than a double-digit margin; nine years ago, the result was 63-27 favorable.

While being in positive territory makes the Court unique among the three branches - the number of people who have a favorable view of Congress is less than the number who believe Elvis is still alive - several commentators and politicians have taken aim at what they believe is the biggest problem with the Court:  lifetime appointments.  There's some merit to that, especially given the increase in longevity over the two-plus centuries since the Constitution was written.  The first ten justices served an average of eight and a half years; the average of the last ten was twenty-one and half. 

There has been no shortage of proposals to remedy this, such as that advanced by Republican presidential candidate Ted Cruz to have a justice face a retention election after eight years on the bench.  Others have advocated limiting justices to a single term of somewhere around twelve years.  That would take a constitutional amendment, though, and good luck with that.  So a group called Fix the Court has come up with another alternative:  each justice, during the nomination process, would promise to serve no more than eighteen years.

I wonder if not resigning at the end of that time would be an impeachable offense?

Ohio's Supreme Court justices are elected, of course, but unlike the members of the other two branches, they're not subject to term limits.  They are subject to the provision that judges can't run for re-election once they're past 70, and that arguably is the only meaningful restriction on their service.  Pfeffer's been on the court for 22 years, and O'Connor, O'Donnell, and Lanzinger have been there for over a decade.  Considering that O'Connor beat her opponent by a 2-1 margin each of the last two times she stood for re-election, and O'Donnell got more votes in 2012 than any other state-wide candidate, including Obama, that's likely to continue.  In fact, in the past decade only three sitting Supreme Court justices have lost elections, and two of those had been appointed to their seats and lost the first time they stood for re-election.

In the courts of appeals...

Last March, in State v. Ruff, the Supreme Court "clarified" the allied offense analysis.  Ruff had been convicted of aggravated burglary and rape, and the 1st District had held that the two offenses merged.  The Supreme Court reversed, announcing a "new test" for allied offenses, and remanded it back to the 1st for application of that test.  I was rather critical of the decision, and wondered why the court remanded the case rather than just rule on it, since it had all the information that the appellate court had; this wasn't a remand, for example, to apply facts to a new rule of law.

Well, good for Ruff that it did; last week, in State v. Ruff, the 1st District came to the same conclusion it had earlier.  The key issue was whether the harms caused by the burglary and the rape were separate and identifiable.  The court concluded that because the aggravated burglary was charged under the subsection of "causing serious physical harm," that was the same harm as the rape, and so the two merged.  The State had argued that the harm of the burglary was the invasion of the structure, while the harm caused by the rape was separate.  The court concluded that if the Supreme Court had found that argument valid, it wouldn't have remanded the case.

So expect another appeal, and another reversal.

One of the most important aspects of appellate work is making sure the court has the full record before it.  In State v. Upton, the defendant appeals from a denial of a motion for DNA testing relating to his 1987 murder conviction.  It seems to have some legs:  there was plenty of material for DNA testing, but back then the procedure was in its infancy.  There have been substantial improvements since that time, and Upton argues it may provide proof of his innocence. 

The problem?  To obtain DNA testing, the defendant has to show that an exclusion result would be outcome-determinative; in other words, that if the test excluded him, it meant somebody else committed the crime.  Upton hadn't included the transcript of the trial, so the court concluded that without the full record, it couldn't make a determination of whether the result would have been outcome-determinative, and affirms the denial of the application. 

The trial court sentences the defendant to four years on each of two separate case files, and orders them to be run consecutively.  The defendant moves for judicial release four years and two months into that term, and the judge grants it, holding that because there were "two different files," he had authority to grant the release.  No, you don't, says the 9th District in State v. Chike; the statute clearly provides that the date of eligibility is determined by the aggregate of all the prison terms.  The good news for Chike is that he now meets the eligibility requirement - if your sentence is more than five years, you file after five - and it's a pretty sure bet that the judge is going to grant it.

Hell hath no fury, Chapter 114.  In State v. Bagnoli, the 5th District reverses the denial of a motion to suppress a traffic stop for DUI.  The stop was based on a tip the police received from Bagnoli's wife that he'd been drinking before leaving in the car.  The trial judge had upheld the stop, based on the fact that this was not an anonymous tip, but one from an identified citizen, pretty much the gold standard for tipsters.  The panel agrees that the tip was reliable, but finds that it didn't convey any information upon which the officer could conclude that the driver was impaired:  the wife didn't observe Bagnoli driving, and the officer didn't see him commit any traffic violations while he followed him.  The court also noted that the tip might have been motivated by something other than civic high-mindedness; Ms. Bagnoli testified she was upset with her husband because "he decided he was going to leave us to go live with this 19-year-old girlfriend."  

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