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Case Update

Oral argument in SCOTUS begins four weeks from today, although the term actually starts the preceding Friday, when the justices meet to mull over the certiorari petitions submitted over the summer.  It's called the "long conference," which to me sounds like something used to broker a peace treaty in 17th century Europe.  The oral arguments the first week include two cases from Kansas on the death penalty, and the next week features on argument on the constitutionality of Florida's capital punishment scheme.

SCOTUS was also the driver of an Ohio Supreme Court case, State v. Clark.   As the numberless horde of my regular readers know, I've been closely following this case since it came out of the 8th District.  The panel there reversed Clark's conviction for child abuse, holding that two teachers' testimony of what the victim - a three-year-old who was found incompetent to testify - told them was inadmissible.  According to the court, since the teachers had a mandatory statutory duty to report abuse, they were government agents for Crawford purposes, and the child's statements were testimonial.  Much to my surprise, the Supreme Court affirmed that in a 4-3 decision, only to have the Potomac Nine unanimously reverse.

The case is remanded, and there's a little housekeeping that needs to be done.   In a tidy three paragraphs, the court ships it back for the 8th to consider Clark's other assignments of error, which that court had deemed moot.  Regardless of what happens, Clark's going to get a new trial:  the 8th also held that testimony about the statements made to the boy's grandmother and great aunt, which came in under EvidR 807, shouldn't have been allowed, and the State never appealed that.

In the courts of appeals...

I've got a friend who is routinely assigned appeals from a particular judge, almost invariably from pleas and sentences.  The judge is one of the most thorough on the bench, and my friend scrambles to find anything which resembles an appealable issue so that she doesn't have to file an Anders brief.

Other lawyers don't have such qualms.  The attorney in State v. Gibson files an Anders brief, the ninth time she has done so in nineteen criminal appeals in the past four years.  What's troubling is that the case doesn't come from a plea and sentencing, but from a trial, and one which appears to have some issues.  Gibson was accused of stabbing her boyfriend, who didn't show up to testify at trial, and self-defense was in issue; the police indicated they couldn't interview him at the hospital because he was too intoxicated.

What's equally troubling is that the 6th District flubs its own analysis.  The incident happened in the home that the defendant and boyfriend shared, and a "potential" assignment of error was that the judge refused to instruct the jury on the lack of a duty to retreat in one's own home.  The court dismisses it, noting that the Castle Doctrine, which presumes self-defense where the defendant is in his own home, doesn't apply when the victim is a lawful occupant of the home.

But that's under RC 2901.05(B)The lack of a duty to retreat comes in RC 2901.09, and it doesn't depend on the victim's status.  If the judge did indeed instruct the jury that the defendant had a duty to retreat, or didn't instruct them that she didn't, that's clear error.  Instead, Gibson goes off to serve a three-year prison sentence.

And we also have an Anders brief in the 2nd District's decision in State v. Carson, where the defendant was given maximum consecutive 18-month sentences for two fourth degree felonies.  Really?  There were 47 criminal decisions handed down by the Ohio appellate courts in the past ten days.  Anders briefs were filed in seven of them.  I've commented before that an Anders brief is the equivalent to the trial attorney getting up in voir dire, telling the jury, "I got nothing," and walking out.  "Frivolous" doesn't mean "I'm going to lose," it means "I can't make this argument with a straight face." 

Exit soapbox.

The 10th District comes up with a nice search decision in State v. Beard.  The police got a call about man with a gun in an apartment, and the police went to the apartment and knocked on the door, guns drawn.  A woman answered, and the police claim she consented to a search, apparently after they removed her from the residence and put her in handcuffs.  They saw Beard lying on a couch, arrested him, and found a gun under the couch.

This is obviously wrong on so many levels, but the trial court denied the motion to suppress, finding that Beard didn't have standing to contest the search since his name wasn't on the lease.  Not the way it works, says the panel:  the woman testified that Beard had stayed there the previous two nights, and an overnight guest has standing.  The State also argued that Beard didn't have standing because it was a third party, not Beard, who had consented, but there's plenty of case law holding that a defendant has the right to contest whether the consent of a third party was voluntary.

Some good appellate work in State v. King.  King, 14 at the time, was vacationing with his family in Michigan when he was charged with having sex with a 13-year-old.  He lived in Ohio, and was required to register as a sex offender here, then picked up two cases of failure to verify his address and sentenced to a total of eighteen months in prison.  He filed a motion to withdraw his pleas, which the trial court denied.

The 1st District reverses.  An out-of-state sex offender is required to register in Ohio if he had a duty to register in the convicting state, but Michigan's sex-offender-registration statute at the time only applied to people who were domiciled there or who'd been in the state for fourteen days or more.  The Michigan court, cognizant of that, had ordered that King "shall be registered as a sexual offender in the state of Ohio," but the panel says the last time they checked, there was nothing that gave a court in one state the power to direct what another state did.  And having pled guilty to failing to verify when he had no duty to register, let alone doing eighteen months in prison for that, clearly qualified as a manifest injustice, so the plea should've been vacated and the case dismissed.


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