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Case Update

No need to worry about the politico-legal conflagration that awaits when Congress opens its confirmation hearings on whomever President/Twitterer-in-Chief Trump sends up to them in January to fill Scalia's seat, which has been vacant since sometime right after the Cuban Missile Crisis, I think.  The partisan deadlock which seems to have engulfed the Court since Scalia's passing has apparently evaporated, producing the first opinion of the term, a unanimous one in Bravo-Fernandez v. US, on the Double Jeopardy Clause.  As with many Supreme Court decisions, this doesn't lend itself to easy summation.  Since there wasn't much from the 8th District last week, we'll talk about Bravo-Fernandez tomorrow.

The Ohio Supreme Court handed down a couple decisions, too, the first being State v. Williams.  Williams had been convicted of two counts of aggravated murder and one of murder, and the judge merged them but ran the sentences concurrently.  Not the way it goes, says the majority:  there should have been only a single sentence on those three, and the court corrects the sentence to impose a single 30-to-life term for the three offenses.

That matters not a whit to Williams; with the sentences on associated offenses, it would be 69 years until he darkened the parole board's door, so unless he sets the mark for Oldest Living Prison Inmate by a couple or three decades, it's not going to affect him.  The interesting part about the decision is that this wasn't raised on direct appeal, it was raised on a motion to vacate a void sentence.  Lanzinger, joined by French, and Kennedy pen dissents longer than the majority opinion, arguing that the judgment was merely voidable, not void, and that Williams lost the chance to argue the issue when he didn't raise it in his initial appeal.  The majority forges ahead, though, and it's now apparent that just about any sentencing error is going to be held "contrary to law" and therefore void.

Seventeen months after oral argument, the court finally decides State v. Kona.  As I explained when I first discussed the case, Kona, a non-citizen, had entered diversion in a theft case.  As part of that, he had to write a statement admitting his guilt.  He subsequently learned to his sorrow that ICE considers the admission the same as a conviction, and it instituted deportation proceedings.

The papers he signed for diversion didn't include the mandatory warning about immigration consequences contained in RC 2943.031.  The 8th had held this wasn't required, since Kona never actually entered a plea.  (One wasn't required to enter diversion back then.  It is now.)  The Supreme Court kind of skips over this and decides that a warning was required. 

In the courts of appeals....

Forest Gregory's story was a bit sketchy to being with.  When the cops came to the scene of the accident, they found him drunk, and he gave the troopers the story that his friend "Dave" was the driver, then changed that to "Chuck" a few minutes later.  At trial, he testified that it was his friend Charles Moore, who resided in Florida and didn't return for the trial.

But his grievance on appeal was that the judge who heard his case:  an assistant prosecuting attorney, sitting by appointment. 

In State v. Gregory, the 4th District dismisses the appeal, finding that it is without jurisdiction to hear it.  Why?  Because the only procedure for removing a judge for bias is to file an affidavit of disqualification with the Supreme Court.

There's actually quite a bit of law on this, and I've even seen courts reject claims of bias that arose during trial on that basis.  Unless the defendant has a time machine sitting around, that's going to be tough:  the affidavit has to be filed seven days before trial.  The concurring opinion points to a 2nd District decision which makes a distinction between seeking removal and claiming bias:  appellate courts don't have the power to do the former, but "appellate courts may review the issue of judicial bias as a grounds for reversal on appeal." 

I've often felt that taping of a defendant's statement hurts the defendant.  I had one several years back where the defendant, a juvenile, killed his mother and shot his father.  There was only an audiotape of the kid's statement, but it was terrible:  the kid talked about killing his mother with as much emotion as he would have used in describing his theft of a candy bar.

But there are times when it definitely helps, one of those coming in the 5th District's decision in In re S.B.  S.B., fifteen at the time, was accused of rape, and indeed the video of her interrogation could have been used as a training tape for what not to do.  S.B. had a functional IQ of 65, and the opinion notes that she

was in tears over one-third of the interview.  She chewed her fingers, covered her head with a hood, and looked away from the detective. When confronted with the fact that her first stories were not the truth and the detective knew she did it, appellee told Detective Scheurer at least three times just to take her to jail.  On the other hand, Detective Scheurer had a calm and fatherly approach to appellee.  He kept his voice low and was persuasive that appellee could say it was just an accident.

The topper was that the detective told her that she was signing the Miranda card just to show that he'd read her her rights. 

Speaking of candy bars...  Anyone operating a drive-thru beverage store knows he's got a product that sells itself, but Ian Black upped the ante:  he also sold hashish-infused chocolate candy bars.  Black wanted to have an expert analyze the bars to determine the actual weight of the hashish, excluding the chocolate and other filler.  The court granted that, but in an interlocutory appeal in State v. Black the 12th District reverses.  First, a defense expert can re-analyze the substance; he can't reweigh it.  Second, the law's pretty clear that filler is included in the weight calculation.

The opinion notes that the candy bars "are commonly known as 'edibles.'"  I'll bet.


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