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What's Up in the 8th

Ah, the things I don't understand.

Like how Steven Ivory got convicted of felonious assault.  According to the victim, he got into argument with Ivory about a bicycle, and Ivory threatened him and appeared to reach for his waist.  The Victim took off running, and two to three minutes later, he heard what sounded like gunshots several houses away. 

That's it.  No gun, no witnesses, no forensics, no nothing, other than that.  Hell, I don't understand how Ivory got indicted, let alone convicted.  I know that a prosecutor can get a grand jury to indict a ham sandwich, but shouldn't he at least have to show that the sandwich did something?  In any event, the conviction gets vacated for insufficient evidence - or, to put a finer point on it, no evidence -- in State v. Ivory.

I'm not sure I understand the opinion in State v. Picha, either.  Picha ran down a man fixing a flat tire on the median strip of a highway.  Picha's car's black box showed him traveling over 100 mph, and the cops found him to be heavily intoxicated, slurring his speech, and barely able to walk.  The blood test at the hospital was all screwed up, but the judge refused to suppress it.  The panel agrees that it should've been suppressed, but finds any error harmless because of the overwhelming evidence of intoxication.  Good so far.  The problem is that the 8th had decided a case earlier this year, State v. Dukes, where it found the improper admission of a blood-alcohol test to be prejudicial.  Picha distinguishes it in the following manner:

Although the panel found that admission of the BAC evidence was prejudicial, such a finding is not the same as determining that the admission of evidence was not harmless error pursuant to Crim.R. 52(A).

It's not?  It seems to me that harmlessness and prejudice are the flip sides of the error coin.  If an error is harmless, it's not prejudicial.  If it's prejudicial, it's not harmless. 

I also don't understand how a Lorain County common pleas judge gave Samuel Funk a domestic violence protection order against Jolynn Bakos.  Funk had been a neighbor of Bakos, and wound up as the legal guardian for her children.  (That would have been an interesting story, but the opinion doesn't tell it.)  As might be expected, that led to contretemps between the two which resulted in Funk obtaining the order.  But a domestic violence protection order can only be obtained for a family member, which is defined as someone "who is residing with or has resided with" the respondent, and Funk and Bakos never lived together. 

Bakos doesn't raise that issue until she gets popped for violating the order in Rocky River.  The city argues that she's waived it by not appealing the original grant from Lorain County.  Not so, says the court in State v. Bakos:  the common pleas court had no subject matter jurisdiction to grant the protection order, so it's a nullity.

Everything else I do understand, even the result in State v. Clayton, a search case I lost.  The police had gotten a warrant to search Dontae Williams' house, where Clayton was staying, based on the allegations that (1) Williams had traded heroin for a gun at some unspecified prior time, (2) the police saw Williams hand something to somebody outside his house, they followed the somebody and stopped him, and found him in possession of a small bag of heroin, and (3) Williams had been convicted of drug trafficking six years earlier.  I did my best to deconstruct the three:  we don't know when the gun was transferred, so we don't know if it's still there, the police didn't see what was exchanged between Williams and the somebody, and a six-year-old drug conviction doesn't mean diddly in establishing probable cause.  But it's the totality of the circumstances that matters, and given the great deference accorded to the magistrate in determining probable cause to issue a warrant, the big picture shows there's enough there. 

The 8th District has decided in numerous cases that a defendant convicted of rape which was committed prior to 1996 is entitled to be sentenced under the "flat-time" provisions of HB 86, rather than the indeterminate sentence (10 to 25 years) in effect at the time of the crime.  But that doesn't mean everybody gets sentenced under HB 86, as we learn in State v. TownsTowns had been charged with a 1993 rape, and pled to one count of sexual battery of a person under 13.  Back in 1993, that was a third degree felony, punishable by 1, 1½, or 2 years in prison; it's now a second degree felony, punishable by 2 to 8 years.  The judge had held that she had to sentence him under HB 86, but the panel disagrees:  HB 86 applies only if it would result in the sentence being reduced.  But the error's harmless (and non-prejudicial):  the judge correctly determined that she couldn't impose any greater sentence than was allowed under the old statutes, because it would be an ex post facto violation.

The big decision, though, was State v. Madison.  Madison's facing the death penalty for killing three women.  He'd provided expert reports to the State indicating that the experts were going to provide testimony in the mitigation phase about him having suffered brain trauma.  The State wanted its own experts to examine Madison, and the judge ordered that, with the proviso that they couldn't ask him any questions about the crime itself.  The defense took this up on an interlocutory appeal, arguing that this violated Madison's 5th Amendment rights.

The court held that it doesn't, but I wait a bit to write more about the case, until I've fully digested it and talked to some of the people involved.  After all, I wouldn't want to tell you about a case I didn't fully understand.

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