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Case Update

While the US Supreme Court's decisions in criminal cases are of the utmost importance here, we tend to forget that they represent only a handful of the 70-some opinions the Court hands down each term.  This year they're frontloaded:  six of the eight cases set for oral argument starting next week are criminal cases.  (And one has criminal overtones:  whether a 4th Amendment violation can serve as the basis of a malicious prosecution suit.) 

The cases run the gamut, from specific statutes on insider trading and bank fraud, to broader issues such as the collateral estoppel aspect of the Double Jeopardy Clause.  There are two on the racial aspect of criminal law.  Pena Rodriguez v. Colorado addresses the question of whether the general rule barring impeachment of a jury's verdict should be applied to evidence of a juror's racial bias.  Buck v. Davis is a habeas case, involving the testimony of a psychologist in a death penalty case who opined that blacks are inherently more dangerous.  The case includes a fascinating twist, which we'll discuss next week.

Nothing of an even vague criminal nature in the cases from the Ohio Supreme Court last week.  Two decisions involved mineral rights, and if you ever find an in-depth discussion of that subject here, please notify the police, because it means I've been kidnapped.

In the courts of appeals...

In State v. Miller, the 5th District finds that the judge should've granted Miller's motion to suppress his statement.  The law on this is that if a defendant unequivocally invokes his right to an attorney, the questioning has to stop.  What's interesting about the case is its recitation of prior decisions about when a defendant's invocation of his right isn't unequivocal: 

Ohio courts has found the following requests to be equivocal:  "I think I need a lawyer." "Maybe I want a lawyer, maybe I should talk to a lawyer."  "I think that I would like an attorney." "I think I might need to talk to a lawyer."  "Where's my lawyer?"  "Well, can I have a lawyer present?"  "Well, can I talk to my lawyer then if there is something wrong like that?"  "Can I have an attorney?"

Apparently, being polite -- asking "Can I have a lawyer present?" rather than "Give me a f*****g lawyer!"-- can work to your disadvantage.

The State loses another suppression motion in the 5th District in State v. Fowler, although the panel's decision seems overly technical.  The detective questioning Fowler did not give Fowler a copy of the Miranda rights, instead reading them to him, then providing him with a written waiver and directing him to sign it, which he did.  The trial court initially found that the failure to provide the warnings in the written form prevented a knowing waiver.  

The panel reversed, finding that the written warnings didn't need to be provided, but remanded for the trial court to determine whether the statement was voluntary.  The trial court came to the same decision, and this time the panel affirms.  It notes that the "The issues of whether a confession is voluntary, and whether a suspect has been subjected to custodial interrogation so as to require Miranda warnings, are analytically separate issues."  This is correct:  Miranda is intended to protect Fifth Amendment rights, while whether the statement is voluntary implicates the Due Process Clause. 

Can the police get a warrant to search a house for drugs if they see the owner sell drugs outside the home?  The 10th District's decision in State v. Phillips contains a roundup of cases on that issue, and the news isn't good for owners.  There does have to be some nexus between the sale and the home, although additional controlled buys at the home will do the trick, as will just seeing the owner go home after making the drug deal.  And besides, even if it's a close call, the good faith exception to the warrant requirement will usually be impossible to overcome. 

Sometimes, you raise issues in an appeal that you really shouldn't, and the problems of doing so are displayed in the 8th District's decision in State v. ScottScott shot a man in 2007, leaving him paralyzed, and was tried and convicted of felonious assault and having weapons under disability.  He was given a nine-year sentence, including three for the weapons conviction.

The victim died six years later, and the State indicted Scott for aggravated murder, felonious assault, and weapons under disability.  He pled to voluntary manslaughter and the weapons charge, receiving ten years on the former and two on the latter, run consecutively. 

The first problem with Scott's appeal from his sentence is that you don't have the right to appeal a sentence that's jointly recommended by the parties and imposed by the trial judge.  Scott's essential argument is that he was given five years for weapons under disability -- three for the first time, and two the second -- for a crime with a maximum penalty of three years. 

That gets him past the first hurdle:  if a sentence is outside the sentencing range, it's contrary to law, and can be appealed.  The panel finds that the second sentence for the weapons offense violated the Double Jeopardy Clause. 

Then we read the dissent and find that Scott never raised a double jeopardy issue; his assignment of error didn't even mention that, only contending that the "stacking" of the two penalties increased the sentence beyond the statutory limit.  His failure to raise it on appeal or in the trial court should constitute a waiver, but the state rides to the rescue:  as the dissent puts it, "the state created this confusion by raising the double jeopardy issue in response."  

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