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Case Update

It used to be that a merchant couldn't charge you more for using a credit card, because the credit card companies made that a condition of the merchant's accepting credit cards in the first place.  Those agreements have come under anti-trust attack, so the credit card companies have backed off.  The main constraint on merchant behavior in this regard is statutes, like New York's, which prohibit merchants from surcharging customers who use credit cards.

Until the Supreme Court's decision last week in Expressions Hair Design v. Schneiderman, in which a bare majority of the Court held that there was a First Amendment issue here.  It didn't determine what side of the Free Speech fence the prohibition fell on, leaving that to the lower court to figure that out on remand.  In the meantime, the merchant saying he's going to charge you an extra 2% for using your Visa now stands aligned with Thomas Paine and Arthur Terminiello in the pantheon of First Amendment heroes.

Is this a great country or what?

Meantime, a meatier case provided an excellent oral argument in Turner v. United States.  Turner and his co-defendant Overton were convicted of murdering a woman in 1984.  Everybody seemed to agree that the prosecution failed to disclose evidence that witnesses had observed another person, James McMillan, "acting suspiciously" and with "something under his coat" in the alley where the woman's body was found.

The question then became whether this affected the outcome of the trial.  Complicating the defendant's task was the fact that several co-defendants testified for the government; as Alito pointed out, this meant the defendants would have to explain why those witnesses pled guilty to a crime they didn't commit, let alone witness.  But Sotomayor pointed out that the jury had acquitted two of the other co-defendants and had almost deadlocked on another two.  Given the standard for error in Brady cases - that the exculpatory evidence must only "undermine confidence in the verdict" - the outcome here is going to be a close one, although a decision will shed as much light on the law on Brady as Expressions Hair Design does on free speech.

Nothing from the Ohio Supreme Court, including whether the court will reverse its decision in State v. Aalim by way of reconsideration, so let's check out the courts of appeals.

If you plead guilty to a 5th degree felony theft - taking between $1,000 and $7,500 - can the court order restitution of more than that amount?  The 6th District seems to think so; in State v. Scurlock it upheld an order of restitution of $126,890.99 on a fifth degree felony.  The court cited the Supreme Court's decision in State v. Lalain that "a trial court choosing to order restitution in a theft case is not restricted to the value corresponding to the level of felony proven at trial."

But Lalain is a good bit murkier than that, as I pointed out when the decision came down.  The Supreme Court did say that "we recognize that the amount of restitution is not correlated to the degree of the theft offense," and used as an example restitution for theft of a car.  But that crime is defined by the item stolen, not the amount.  What's more, the issue there came up on a certified conflict - the 8th held that restitution need not be limited to the offense, while most appellate courts had held to the contrary - but the court dismissed that issue of the appeal has having been "improvidently certified," probably rendering that portion of the opinion dicta

One of my recent discoveries has been that RC 2953.08, the statute allowing appellate review of sentencing decisions, does not permit review of a sentence for aggravated murder.  The 1st District adds one caveat to that in State v. Johnson:   that doesn't preclude review of a trial court's imposition of sentences consecutive to that for aggravated murder.  In that case, the court still has to follow the requirements of RC 2929.14(C)(4).

This was pretty much of an abstract exercise, though.  The trial judge had tacked 33 years in prison on other offenses on top of the life-without-parole sentence for aggravated murder.

Last December, in State v. Creech, the Ohio Supreme Court adopted the reasoning in Old Chief v. US.  In the latter case, SCOTUS had held that where a defendant was being tried for a felon-in-possession charge -possessing a weapon after having been convicted of a felony - the defendant was entitled to offer a stipulation of the fact of prior conviction, so that the government couldn't get into the details of it.

Creech held that also applied to a weapons under disability charge, the state counterpart to the Federal violation.  When I discussed Creech, I said "the same logic should apply to other cases where prior convictions are used to create or enhance the crime, like domestic violence and certain OVI's."

Well, maybe, maybe not, depending on how you read the 6th Circuit's decision last week in US v. LuckLuck had the misfortune of finding himself on trial for child pornography, and to spare the jury having to view the unsettling photos and videos, offered to stipulate that they contained kiddie porn.

Sadly, the stars were not aligned for Luck; the prosecutor spurned the offer, and the 6th Circuit affirmed, noting that in Old Chief the Court had limited its holding to "cases involving proof of felon status."

Does that mean Creech is limited to weapons under disability charges?  While Luck relied on the explicit limitation in Old Chief, it also explained the distinctions between that case and Luck's.  The felon status in Old Chief was an element of the crime, the nature of the prior conviction was not.  Here, though, the images were critical to "establish both the fact that they are pornographic and the fact that defendant acquired and distributed the images knowing they depicted child pornography."

So I think I'm still good in arguing that Creech allows a defendant to stipulate to a prior domestic violence or OVI conviction.  On closer look, though, I'm not sure it does the defendant any good.  In my original post, I'd written that the stipulation would be to the judge.  It's not; the stipulation is read to the jury, and that doesn't help when the defendant is stipulating to a prior DV or OVI.


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