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Case Update - While I was gone

Apparently, the Potomac Nine decided that if I wasn't going to write about their decisions, they weren't going to hand down any decisions worth writing about.  In the past six weeks, the most notable event for SCOTUS was Chief Justice Roberts' annual report on the judiciary, in which he admonished lawyers to play nice, and encouraged judges to more closely monitor cases to effect the "just, speedy, and efficient resolution of civil cases."  That's mainly a follow-up to the amendments to the civil rules, effective last month, intended to streamline civil discovery procedures.  Roberts writes that "I cannot believe that many members of the bar went to law school because of a burning desire to spend their professional life wearing down opponents with creatively burdensome discovery requests or evading legitimate requests through dilatory tactics."  Based upon my experience in civil cases, I can.

The Columbus Seven were more diligent, but barely.  The only criminal case in that time frame was the unanimous decision in State v. Barry.  The cops stopped a car in which Barry was a passenger, and that led to Barry's arrest and her disclosure at the stationhouse that she was carrying a bag with 56 grams of heroin in an intimate portion of her body.  No, not that portion - eeewwww.  In any event, that led to her conviction of tampering with evidence.

But the tampering statute requires that the defendant know that "on official proceeding or investigation is in progress or likely to be instituted."  Barry had inserted the bag before she even departed on the trip, but the 4th District affirmed her conviction nonetheless on the theory that when one hides evidence of an "unmistakable crime," she commits tampering, because they have "constructive knowledge of an impending investigation."  But constructive knowledge means only "knowledge that one using reasonable care or diligence" should have, which is largely a negligence standard; "knowingly" under the statute requires that a person ""subjectively believes that there is a high probability" that a certain fact exists.  In short, mere "constructive knowledge" doesn't cut it.

That sounds broader than it might be.  While Barry was pending, the 4th District narrowed Barry so that it applied only in situations where the defendant committed a crime, like murder, arson, or rape, where the victim was likely to complain to the police, or investigation is almost certain to occur because of the death or severe injury to the victim.  We'll see how that shakes out in the future.

In the courts of appeals... 

It's not uncommon at trial for a state's witness to back off the statements he's made prior to trial implicating the defendant, and it's not uncommon for the prosecutor to counter this by impeaching the witness with those very statements.  The 2nd District's decision in State v. Johnson imposes some limits on that tactic.  Devon Garrett was to be the State's star witness in Johnson's trial for allegedly serving as the getaway driver in a home invasion that turned into a felony murder.  Instead, despite giving a statement incriminating Johnson that very morning, Garrett took the stand and professed to not even know Johnson.

The judge declared Garrett a court's witness, and the prosecutor proceeded to ask him over 80 questions about his prior statements.  Too much, said the panel:  this went far beyond impeachment, to the point where the prosecutor was attempting to get his theory of the case across.

What's it take to establish judicial bias?  You can start by giving the defendant who's pled to involuntary manslaughter in the death of his child the maximum eleven years, and you finish up with a radio interview two days before the sentencing where you misstate the evidence and say that the defendant's character - he'd served in the Marines, and was wounded in Afghanistan - played no part in sentencing; you would have maxed out anyone who was responsible for the death of a child.  The 1st District decides that's enough in State v. Hamberg

An interesting aspect of Hamberg is its procedural posture.  The defendant had been convicted of aggravated murder, and filed a motion for new trial.  Problem:  Hamberg had pled guilty, and you can't ask for a new trial if there wasn't an old one.  So the appellate court treated it as a petition for post-conviction relief.  Although there's a Supreme Court case allowing that, the dissent ventures into Scalian territory in lambasting the majority for doing so.  And, in turn, is rebuffed by the concurrence, which intones that the court's deliberative process should "include respect for the position taken by each member," and chides the dissent for "ignoring that ideal."  So I'm guessing there's a couple of people who didn't spend New Year's Eve together. 

Stop me if you've heard this.  Cop sees a guy with a broken brake light, stops him, smells marijuana, searches the car, and discovers a bag containing 19 grams of cocaine.  Somewhat surprisingly, in State v. Adams, the 11th District decides that's not a good search:  a broken brake light and possession of a small amount of marijuana are minor misdemeanors, and you can't arrest a person for a minor misdemeanor unless they meet certain requirements under RC 2935.26, and those weren't met here.  No arrest, no search.

What's somewhat odd about the case is that Adams told the cop at the outset he had a small amount of marijuana, and the judges seemed to take him at his word that the amount was less than the 101 grams necessary to take into misdemeanor four territory. 

Paying to pee.  In State v. Hewitt, the 2nd District held that the trial court didn't err in ordering the defendant to pay $125 in restitution to the police department for the drug testing performed by the crime lab. 


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