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Case Update

If you were the general manager of the New York Yankees, and you tell your scouts to find a defensive catcher, quick-footed shortstop, or a pitcher from last year's World Champion Kansas City Royals, you probably wouldn't be surprised if they reported on a defensive catcher from the Minnesota Twins.  But if you told your real estate agent find you an apartment, house, or condo in New York City, I'm guessing you wouldn't be too happy if they wanted to show you a house in Sacramento.

Those examples found their way into the Supreme Court's opinions - the former in the majority opinion, the latter in the dissent - in Lockhart v. US  Lockhart had been convicted of possessing child pornography, and earned ten-year mandatory minimum sentence because he had a prior state conviction "relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward."  But wait, said Lockhart:  his prior conviction was for sexual abuse of his adult girlfriend, not "a minor or ward."

This dispute involves two semantical constructs:  last antecedent (a limiting clause applies only to the noun or phrase it immediately follows) and series qualifier (a modifier at the end of the list applies to the entire list).   The Court voted 6-2 that the last antecedent rule prevails:  only the "abusive sexual conduct" applies to minors, and thus Lockhart's conviction of sexual abuse of an adult gets him the minimum mandatory sentence.  At oral argument, the late Justice Scalia had suggested that the rule of lenity - ambiguities in a criminal statute are resolved in favor of the defendant - applies, but the majority gave short shrift to that, essentially deciding there was no ambiguity. 

President Obama is supposed to announce his nomination for Scalia's replacement this week, despite Republican insistence that they will not even talk to the nominee, let alone hold hearings on him, let alone vote on confirming him (or her).  The talk is that Obama will nominate a Federal appellate judge who was confirmed with near-unanimous support from Republicans.  That's very unlikely to move the Republicans - if they did hold hearings, their base would probably show up at their doors with pitchforks - but it will ensure that it remains a major political issue in the upcoming presidential campaign.

Nothing in the Ohio Supreme Court, so let's head over to the courts of appeals...

The 2d District has become the best sentencing court in the state - at least from the defendant's perspective - and the concurring opinion in State v. Whitt poses a potential argument for future appeals on the subject.  Whitt argued that the record didn't clearly and convincingly support the maximum 18-month sentence he got for domestic violence, but as the majority points out, that's backwards:  under RC 2953.08(G)(2), the defendant bears the burden of showing that the record clearly and convincingly does not support the sentence.

The concurring opinion, though, notes that RC 2929.12(A), which lists the seriousness and recidivism factors a judge should consider in fashioning a sentence, says that the judge "has the discretion to determine the most effective way to comply with the purposes and principles of sentencing."  That allows review for abuse of discretion, and he then analyzes the factors, deciding none of the "more serious" factors apply.  (The trial judge had found the seriousness factor of "the offender's relationship with the victim facilitated the offense," but as the concurrence points out, that's always going to be true in a domestic violence case.)  The judge nonetheless finds that the other factors, especially the recidivism one, supported the judge's exercise of discretion.

That's obviously not going to fly everywhere; the 8th District, for example, has held that the judge's application of the 2929.12 factors is unreviewable.  But given how bad sentencing law is for defendants, it might be worth a shot.

What happens when, say, the video from a police cruiser's dashboard cam is destroyed?  It depends on the nature of the evidence:  if it's "materially exculpatory" - if its exculpatory nature was clear before it was destroyed, and the defendant can't produce the evidence by other means - his due process rights have been violated, and he goes free.  But if it's only "potentially useful" - it may or may not have incriminated the defendant - he has to show that the police destroyed it in bad faith.

That's the issue presented in the 2d District's decision in State v. McClainThat standard is taken from the Supreme Court's decision in Arizona v. Youngblood.  Youngblood has been criticized by a number of courts, including the 2d, and has been rejected by numerous states, and even the McClain court recognizes that having the defendant prove that destroyed evidence would have clearly exonerated him, or that it was destroyed in bad faith, is "a burden that is often overbearing."  In an effort to avoid that, some courts, like the 10th District, have developed a standard that if the evidence is lost after the defendant specifically requests it, the burden shifts to the State to prove that it wasn't materially exculpatory.  McClain rejects that as well, finding it bound by U.S. Supreme Court precedent.

Given the Ohio Supreme Court's willingness to decide cases under the Ohio Constitution, this might be an issue worth taking up.

We didn't mean for you to take it literally.  The defendant in State v. Perez skips out, and the bond is forfeited.  The bond agency's motion to vacate the forfeiture is denied, and the 6th District affirms.  The name of the bonding company?  "You Walk Bail Bond Agency."

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