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Case Update

SCOTUS grants cert in District of Columbia v. Wesby, which arose when police responded to a complaint about noise coming from a vacant house, and found "scantily clad women and the smell of marijuana."  But enough about the parties of my youth, at least as they occurred in a parallel universe.  The issues are probable cause and qualified immunity of the police for constitutional violations.  I'll keep my eyes glued on this one, and when the decision comes down, I'll try to accompany my insightful analysis with some pictures of scantily clad women.

Good news for supporters of Chief Wahoo and the Washington Kikes -- er, Redskins.  Six years ago, Simon Tam wanted to register the name of his band, The Slants, but the patent office rejected it on the basis of a statute which forbade approving trademarks that "may disparage" other persons, in this case, Asians.  The court of appeals said that was unconstitutional, and in oral argument last week, the justices appeared to agree.  The Redskins' trademark was canceled by the patent office for the same reason in 2014, and the case has been on hold in the 4th Circuit since then.  Rumors that the San Diego Chargers, upon completion of their impending franchise move, will change their name to the Los Angeles Niggers appear unfounded, however.

More significant was the oral argument in Lynch v. Dimaya, which presents the question of whether Dimaya's conviction of burglary is a crime of violence; and if it is, it would subject Dimaya, a non-citizen, to mandatory removal from the United State.  The immigration statute defines an offense of violence as one involving "a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."

Vague much?  That's pretty much the same definition that the Supreme Court struck down as void for vagueness under the Armed Career Criminal Act (and the sentencing guideline for career offenders).  Scalia led the charge against the ACCA's definition, and he would have been help to Dimoya here, but he may not need much; the liberal bloc, such as it is, seems in his corner, and Kennedy appears set to join them.  The lower court ruled for Dimaya, so even a tie means a win.

The first real decision of the new year for the Ohio Supreme Court comes in State ex rel. Fockler v. Husted, on Fockler's mandamus petition to have the state recognize the Libertarian Party.  If I still used categories for my posts -- Procedure, 4th Amendment, etc. -- this one would fall under Watch Me Not Care.   I started reading the opinion nonetheless, and before dozing off learned that the Libertarian Party lost its status as a party in Ohio when it didn't field a candidate for governor in 2014, apparently preferring to watch Democratic candidate Ed Fitzgerald engage in repeated acts of political self-immolation before getting trounced by a 2-1 margin.

There have been few appellate decisions about the open discovery rule since its adoption in 2010, and fewer good ones.  The State didn't provide the name of a witness?  No problem, since the trial court gave you ten minutes to interview the witness before he testified.  The State didn't provide you the required expert report?  No problem; it's harmless error.

One of the difficulties is that the trial court's rulings on discovery matters are reviewed under the very deferential abuse of discretion standard, but that comes back to hurt the prosecution in Toledo v. Strickland.  Strickland was on trial for resisting arrest, and claimed that he'd been subjected to police brutality.  The only witness to testify for the city was the police officer, and during trial it was learned that he was wearing a body camera with both audio and video at the time of the incident, and that it had recorded everything that happened.

The defense had requested discovery, but the city hadn't provided anything more than a police report which mentioned that the officer was wearing a body camera.  The trial judge decided that the failure to turn over the footage from the body camera was a discovery violation, and striking the officer's testimony was the only possible remedy.  The panel affirms.

Two quick takeaways.  Usually, severe sanctions -- and tossing out the testimony of the prosecution's only witness is about as severe as it gets -- are reserved for intentional violations.  Not here; everybody agrees the city's violation was unintentional, but that doesn't save it.  Second, the court doesn't buy into the city's argument that after Strickland got the report indicating there was a body camera, it was his obligation to take some further action in procuring it.  Open discovery means turning over the evidence, not requiring the defendant to follow the map to the treasured gold.

The 2nd District is the most defendant-friendly court on sentencing issues in Ohio, and it burnishes that reputation in State v. Brewer.  The trial judge gave Brewer maximum consecutive sentences, totaling five years, for three counts of trafficking in heroin.  The judge made the first two required findings for imposition of consecutive sentences -- that they're necessary to punish the offender or protect the public, and that they're not disproportionate to the seriousness of the offender's conduct and the danger he poses to the public -- and for the third one, determined that the defendant's history of criminal conduct warranted consecutive sentences.

The majority finds a problem with the latter:  other than the judge's statement that Brewer had a felony conviction within the past two years, and that he'd served a stint in prison, there was nothing else in the record about his criminal history.  The majority determines that the record "clearly and convincingly" fails to support the sentences.

I'm all in favor of stronger appellate review of sentencing, but this is probably a bit much.  As the dissent notes, Brewer did not make any affirmative representation as to his criminal record, or lack thereof, nor did he deny the prior conviction and prison sentence.  While the record is sparse, the dissent argues, "the record does not overwhelmingly support a contrary result," which is the standard that should be used.

Not that all this will do Brewer much good.  I'm betting that the trial judge will be able to articulate enough prior convictions to justify consecutive sentences on the next go-around.

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