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Case Update

For the first time in thirteen months, the Supreme Court will begin this week with a full complement of justices.  The cost, of course, is the death of the filibuster for future nominees. 

How that's going to turn out in the long run is an open question.

The Supreme Court has been the most popular branch of government, and not merely by default.  (The percent of the population which believes Elvis Presley is still alive runs a close second to the percent who approves the job Congress is doing.)  As late as 2010, the Court's approval rating was 61-28.  It was by far the most trusted and respected branch of government. 

This past year it veered into negative territory, 45-47.

I don't think that's due to the Court's decisions, I think it's due to the public's distaste with how political the process has become, first with Merrick Garland and now this.

After last week, that's not likely to get better.  First, it hammers home the point that nominations to the Supreme Court are now blatantly partisan and starkly ideological.  Gorsuch will vote much like Scalia would have, but he wouldn't be another Scalia, arguing a forceful and cogent method of constitutional interpretation.  But even if he were Scalia's clone, the fact remains that every Democrat in the Senate voted for Scalia; he won confirmation 99-0. 

That's very unlikely to happen again.

The second result from last week is that it will be much easier to select partisan and ideological justices.  Before, a president had to select a nominee who could garner some measure of broad support, to defeat a potential filibuster.  (The tendency, too, was to allow at least an up-or-down vote on a candidate.  Thomas and Alito both got less than 60 votes, but in both there was a cloture vote against filibuster.)  Looking for sixty votes is a lot harder than looking for 51. 

Fortunately, the selection of more ideologically-attuned justices will probably not result in the hyperpartisanship our other two branches have descended into.  The Court is much more collegial; Scalia and Ruth Bader Ginsburg could not have been more different ideologically, but they were fast friends.  And a more moderate selection is likely when the presidency and the Senate are controlled by different parties.

We can hope.

Nothing from the Ohio Supreme Court, so let's tackle a few lower court decisions.

Yes, cops can lie when they question a suspect, but only so far.  That's the message of the 5th District's decision in State v. MyerMyer was stopped for a traffic violation, and her passenger consented to a search, resulting in the discovery of drugs and his arrest.  Then it was Myer's turn:  the cop asked her if she had any drugs, and told her that if she was hiding them, she could be charged with tampering with evidence, a third-degree felony.  She couldn't, of course, and that was enough for the trial court to determine that her consent hadn't been voluntary.  The court suppressed the search, and the panel affirmed.

I'm not sure you should make too much of this.    First, the appellate panel treated the trial court's finding that the consent was involuntary as a factual determination, which results in a very deferential review.  It probably would have come out differently if the trial court had ruled the other way.  Plus, I think that's a legal conclusion, not a factual one, and should have been reviewed de novo.

Second, the State apparently could have made better arguments.  The panel pointedly notes that the State was not arguing that the officer had probable cause to search the car, or reason to believe that Myer had drugs on her.  This is after the passenger was found to have drugs on him, and the reason the police stopped Myer's car, for going over the center line, was a pretext:  they'd received a tip that she was transporting drugs.  Still, it's a good case to have, and there aren't many on this.

Ineffective assistance of counsel claims come in a variety of flavors, and two of them are provided in State v. Riddle and State v. Proffitt

Proffitt also provides a primer on past recollection recorded, under EvidR 803(5).  Proffitt was on trial for domestic violence, and the girlfriend had made several incriminating statements.  Without objection, the prosecutor had her read those statements out loud, and the judge admitted them into evidence.

There's ordinarily no problem with that; past recollection recorded is substantive evidence, although there's case law that says while the witness can read the statement aloud, it shouldn't go back with the jury.

But the girlfriend had testified that she didn't remember making the statements, or didn't remember what she said, and that was fatal to the State's case.  One of the requirements for admission is that "the recorded recollection correctly reflects the prior knowledge of the witness."  Without that acknowledgment by the girlfriend, the evidence doesn't come in.  More accurately, with an objection by defense counsel, the evidence shouldn't have come in.  The 12th District finds that the lawyer should have objected, and reverses.

In Riddle, there seems to be more than adequate basis for the defendant's plea of guilty to aggravated robbery.  He approached a woman sitting in her car in a Walmart parking lot, held a gun to her throat, and told her, "Drive me up the highway, I have a gun, bitch, and I will kill you."

On problem:  the gun was recovered by the police, and turned out to be a fake.  That doesn't necessarily preclude a conviction for aggravated robbery under the "deadly weapon" provision; there are plenty of cases saying that a gun used as a bludgeon still qualifies.  But a couple of years ago, the Supreme Court in In re J.T. (discussed here) held that the "gun as bludgeon" theory could only be applied if the gun was actually used as a bludgeon.  It wasn't here.

Normally, a guilty plea waives any claim of ineffective assistance of counsel.  But not when the plea is induced by the IAC.  Here, the record was clear that Riddle hadn't committed aggravated robbery, and advising a client to plead guilty to something that isn't a crime is pretty much the prototypical example of ineffective assistance.

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