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Case Update

Good work for SCOTUS buffs who are multilingual:  here's the interview Stephen Breyer gave to a French radio station, in French no less, his new book, The Court and the World:  American Law and the New Global Realities.  A bargain at any price, no doubt, and at $14.99 for the Kindle version, one you can't pass up.  Unfortunately, you probably missed last Thursday's discussion by the Puerto Rico Solicitor General (in Spanish) of the upcoming Supreme Court decision in Puerto Rico v. Sanchez Valle, which has at least a tangential relationship to criminal law:  the Court will determine whether Puerto Rico and the federal government are separate sovereigns for purposes of the Double Jeopardy Clause.

That's down the road -- no briefs have even been filed yet - and next week doesn't offer much more of interest.  There's the oral argument in Foster v. Chatman, the Batson challenge case, and Luis v. United States, which concerns seizure of defendant's assets which could have been used to hire a lawyer, but after that things get grim:  a couple of cases on statutory interpretation, and then nothing the rest of the year.

Down in Columbus, it was Lawyer Discipline Week.  If you're thinking of failing to communicate with a client, charging excessive fees, not depositing client funds into your IOLTA account, or keeping the unearned portion of a retainer, don't.  No criminal decisions, although this week features oral arguments in three of them.  Creep of the Week Award goes to Terry Martin, who hid a camera in a pile of towels in a bathroom and used it to record an 11-year-old girl taking a shower.  Relying on an earlier Supreme Court case, his lawyers argue that the statute prohibiting taking nude photos of children isn't a crime unless photo involves "lewd exhibition or graphic focus on genitals."  (In case you're worried, the statute only applies to non-parents who don't have the parents' permission.)  The argument would benefit from better facts, like, say, a babysitter taking pictures of a child in a bathtub. 

State v. Pittman presents a simple issue of statutory construction.  Ohio law makes it a criminal offense to fail to support a child that "the person is legally obligated to support."  Pittman's two daughters turned 18 in 2006, at which time he owed more than $68,000 in support.  He was ordered to pay $236 a month on the arrearage, and when he didn't, he was indicted for non-support.  He argues that he can't be prosecuted because he doesn't have a current obligation to support his now-emancipated daughters.

State v. Marcum presents a complicated issue of statutory construction.  Back in 2008, the Supreme Court in State v. Kalish (discussed here) set forth a two-part test for appellate review of felony sentencing; the second part was whether the trial judge abused his discretion.  Then in 2011, as part of the HB 86 reforms, the legislature rewrote the statute on sentencing review, and specifically provided that "the appellate court's standard for review is not whether the sentencing court abused its discretion."  I've got a pretty good idea how that will turn out, especially since Kalish was only a plurality opinion, but we'll talk more about it later this week. 

In the courts of appeals... 

There's an argument to be made that the Ohio statute mandating bindover of a 16- or 17-year-old juvenile who commits certain offenses is unconstitutional.  In fact, there's a lot of arguments to be made, as we find out in State v. McKinney.  Not good arguments, at least to the 1st District:  they shoot down his claims of violation of due process (both procedural and substantive), equal protection, and the cruel and unusual punishment clasue.  If you've got a case on this, at least you know where to go for the arguments; whether you'll have any better luck than McKinney did is questionable.

Another case on your must-read list, especially if you've got a consecutive sentencing issue, is State v. Kay.  Kay represents that extremely rare case where the appellate court reverses consecutive sentences despite the fact that the judge made the necessary findings.  If the judge did, the only way you win is to show that the record "clearly and convincingly" doesn't support the findings.  And that's exactly what the 2nd District found, in a split decision.

The opinion is notable for two reasons.  First, the trial court did little besides make the findings; the opinion notes for each finding that "the record is not clear what facts were considered by the trial court."  Second, the court relied on the seriousness and recidivism factors under RC 2929.12 to support its conclusion that the record didn't support the findings.  What's more, the court doesn't just reverse; it sends it back with a mandate that the sentences be run concurrently.

The dissent makes a pretty strong case for the majority having gotten it wrong.  It's not whether the record supports the findings, it's whether the defendant can clearly and convincingly show that it doesn't.  That's an extremely deferential standard of review.  Plus, there's no requirement that a judge consider the seriousness and recidivism factors in determining whether to run sentences consecutively.  Still, Kay is out there, and if you've got a consecutive sentencing case where the judge did make the findings, it's well worth your time.

Another argument, somewhat inventive, goes for naught in State v. Jordan.  Jordan had pled guilty to murder with a firearm spec and aggravated burglary, and received the jointly-recommended sentence of 18 years to life, but contends that the plea was invalid because the judge didn't advise him his guilty plea meant he was waiving his right to appeal various pretrial motions.  The 9th District judges certainly aren't getting paid by the word, disposing of Jordan's proposition in a tidy seven paragraphs:  Jordan cites no authority for his assertion, and besides, the duty to advise a defendant of his right to appeal doesn't arise until sentencing.

I'm not so sure I buy that.  There are cases in which the court has found ineffective assistance where counsel had his client plead guilty without telling him that he's waiving the denial of pretrial motions, like a motion to suppress.  I suppose that this is different, and that you can make the argument that certain things are a lawyer's job, not the judges.  But it's a creative argument, and kudos to the lawyer for coming up with it.

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