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Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Case Update

This week's news on SCOTUS centered on Neil Gorsuch's nomination to take Scalia's seat on the High Court.  In keeping with this Blog's policy not to venture into politics, except to make a snarky comment every now and then, we'll not brook any discussion about whether opposition to his nomination has any chance of success.  SCOTUSblog has helpfully provided us with a list of Gorsuch's extra-judicial writing and speeches.  I would note that no fewer than five concern the subject of assisted suicide.  In keeping with this Blog's policy, I might venture that this will become a topic of growing importance in the coming months and years of the Trump presidency.

One of the features of SCOTUSblog is the Petition of the Day; no doubt, they stole the idea from this Blog's former feature, the Bullshit Traffic Stop of the Month™.  The nominee for the top petition last Tuesday was Ohio v. Hand.  The unnumbered legions of my regular readers will remember that last year, in State v. Hand, the Ohio Supreme Court held that RC 2901.08 was unconstitutional, in that it permitted a juvenile adjudication to increase the penalty or level of offense for an adult crime.  The decision was based on the idea that since a juvenile has no right to a trial by jury in a delinquency proceeding, the adjudication was based on judicial fact-finding, which is barred by SCOTUS' Ring/Apprendi/Blakely trilogy.  Sure enough, the issue presented in the petition is

Whether the absence of the right to trial by jury in juvenile delinquency proceedings results in a juvenile adjudication falling outside the prior-conviction exception set out in Apprendi v. New Jersey.

Stay tuned.  

Barring the release of some decisions, there's not going to be much news about the Supreme Court in the coming weeks.  Only six oral arguments are scheduled this month, and they don't occur until the last two weeks.  One features a sentencing issue regarding consecutive sentencing for using a gun in an offense, but the more interesting one is Packingham v. North Carolina, which presents a First Amendment issue.  Packingham is a registered sex offender, and state law makes it a felony for a sex offender to access websites such as Facebook, YouTube, and nytimes.com, that are "known" to allow minors to have accounts.  Packingham was convicted after posting "God is Good!" on his Facebook page after beating a traffic ticket.

There won't be any new decisions from the Ohio Supreme Court; the court cleaned out its docket of pending cases before the ascension of two new justices last month.  Oral arguments are getting revved up again, though, and this week features four criminal cases. 

One is the death penalty case I discussed last week.  The three slated for Thursday include one on a "trial tax," and another on what a judge needs to do to properly impose post-release controls:  more specifically, must the judge include the notification of the consequences of violating PRC in the journal entry, or is a simple reference to the statute sufficient?

And then there's State v. Orr.  Orr was arrested in 2013 for a rape allegedly committed 20 years earlier, when he was 13.  At that time, state law barred transfer of a 13-year-old to adult court, as long as he hadn't committed certain murder offenses.  That put Orr, or rather the prosecutor's office, in legal limbo:  the trial court ruled that it didn't have jurisdiction of the offense, since Orr was a juvenile at the time, and the juvenile court didn't have jurisdiction, since Orr was no longer a juvenile.

The State relies upon a 1997 amendment to the law, which provided that if a person commits a crime while a juvenile, but isn't apprehended until after he's turned 21, he can be prosecuted in adult court.  Resolution of the issue depends upon whether the 1997 amendments can be applied retroactively to Orr.  The State argues it doesn't affect any of Orr's substantive rights, but Orr contends that the greater punishment he'd face in adult court does indeed "increase the penalty," thus making its application to him a violation of the Ex Post Facto Clause.  The oral argument in that one should provide some insight into how the two new justices are going to approach criminal cases, and we'll talk about that next week.

You're retained to handle a case, you decide you need an expert, but your client doesn't have the money to pay for one.  You figure that since you're retained, your client is out of luck.  Not so, as we learn in the 6th District's decision in State v. Henderson.  Turns out that the Ohio Administrative Code provides that "a defendant who retains counsel but does not have sufficient funds to pay for experts, transcripts, and other related expenses should be declared indigent for those purposes."  How do you determine whether a defendant doesn't have sufficient funds?  The same way you determine indigency for appointment of counsel:  if the defendant's gross income is less than 187.5% of the federal poverty level, or if his net income -- deducting "basic living expenses" -- is less than 125% of the poverty level.

That doesn't mean you get the expert.  Regardless of whether counsel is retained or appointed, you still have to make a particularized showing that there's a reasonable probability that the requested expert would aid the defense.

Since this Blog's rule limiting snarky comments only applies to political matters, one might suggest that if your client isn't under the Federal poverty level after paying your fee, you just aren't trying hard enough.


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