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Case Update

Ordinarily, Divna Maslenjak wouldn't have anything to worry about.  When she'd fled Serbia and came to the United States as a refugee in 2000, she'd lied about her husband's military service in the Bosnian Serb military.  She was naturalized in 2007, but the ICE crew came a'knockin' last fall.  No big deal; she claimed that the fib was immaterial - it wasn't one that would have affected the immigration officials' decision to naturalize her.  "So what?" the ICE crew responded, deciding that it was immaterial whether her falsehood was immaterial, and shipped her back to Serbia.

 If the oral argument on the case in the Supreme Court last week is any indication, it's likely she'll be returning to our shores.  In the Time of Trump, nobody seems especially keen on the idea of giving the government essentially unfettered discretion to strip people of citizenship.  Roberts noted that one of the questions on the form was whether the applicant has "ever committed, assisted in committing, or attempted to commit a crime or offense for which you were not arrested."  Roberts confessed that he had once driven 60 in a 55 zone.  Would that do the trick?  Sotomayor asked about failure to disclose a childhood nickname, Breyer noted that the questions on the naturalization application were "unbelievably broad," and the rout was on.

The outcome of Kentel Weaver's case is harder to predict after the oral argument two weeks ago.  The judge in his case had closed the courtroom, without making the required findings to do so.  The lawyer didn't object.  Weaver raised an argument that this constituted ineffective assistance.  This raised a quandary:  impermissibly closing a courtroom to the public has been held to be structural error -- no showing of prejudice is required -- but an ineffective assistance does require prejudice.  Which one to use?  The justices went round and round without any clear answer, and it's plausible that they may carve out some exception to the structural error rule in the context of IAC claims, as suggested Gorsuch, such as whether the error "seriously affects the fairness, integrity, or public reputation of judicial proceedings."

That wraps up oral arguments for SCOTUS for the 2016 term.  There are about a half-dozen criminal cases still to be decided.  I'll give you a rundown of them later in the week.

The Ohio Supreme Court didn't hand down any decisions, either, but it's not done with oral argument by a long shot.  Among the seven arguments this week are two in criminal cases.  One is a death penalty case:  Curtis Clinton raped and murdered a woman, then strangled her 1- and 3-year-old children for good measure.  His main claim is that he didn't knowingly and voluntarily waive his right to present mitigating evidence.

State v. Mohamed seems to pose an easy issue:  does sexual assault cause harm?  Mohamed, a taxi driver, had gotten a bit too familiar with his fare, so familiar that the jury wound up convicting him of gross sexual imposition and kidnapping.   But he'd dropped her off at her boyfriend's house, and that was enough to prompt the 8th District to reverse the kidnapping conviction, finding that Mohamed's lawyer was ineffective for not requesting an instruction on whether the victim was left in a safe place unharmed, which would have reduced the kidnapping to a second-degree felony.

Although the statute doesn't specify what kind of harm we're talking about, it's tempting to suggest that any kind of sexual assault clears that bar; as the State notes in its brief, the victim suffers nightmares and cries herself to sleep.

Well, I've known robbery victims to suffer the same problems, and if all the defendant does is hold a gun, take the money, and leave, there's a good chance that the kidnapping charge is going to be reduced.  (And yes, there will be a kidnapping charge; Ohio's law defines kidnapping as any "restraint of liberty," and you restrain someone's liberty by pointing a gun at them.)  If the legislature had intended that harm be defined as anytime someone was the victim of a felony, it wouldn't have created the reduction for kidnapping.  This is the kind of stuff we pay juries to figure out.

Cleveland's effort to catch up with the thousands of untested rape kits sitting in police evidence rooms led the prosecutor's office up here to a new tactic:  to avoid statute of limitations problems, instead of indicting a person, they'll indict "John Doe" and attach the DNA profile that comes back from the rape kit.  Although that sounds a bit sketchy, it's been upheld by a number of courts, both inside and outside Ohio.

But there's a catch.  The State can do that only if "reasonable diligence was used by law enforcement in its efforts to identify the defendant, and those efforts failed."  Two years ago the 8th District affirmed the dismissal of a John Doe indictment where the police had actually interviewed the defendant at the time of the incident, and the complainant had identified him three days before he was indicted. 

The same fate befell the State last week in State v. Pettry.  If anything, Pettry's case was worse:  the State got the DNA match to Pettry three days before the indictment, but indicted "John Doe" and didn't get around to amending it to include his real name until nineteen months later.

For comic relief, we come to State v. Cody.  Cody's conviction and 30-plus year sentence was affirmed a while back, and Cody now files a 26(B) motion, alleging that counsel screwed up by not arguing that the state suppressed exculpatory material:  "Cody maintains that throughout the relevant period of time he was working for the CIA and, thus, he had lawfully been assigned cover identities, including the ones for the identity fraud charges. Cody also maintains that if the state had not suppressed the CIA information, the jury would have been convinced that he lacked the criminal intent for the theft charges." 

Well, there's twenty minutes of my life I'm never going to get back.  Could've been worse:  the opinion notes that original application to reopen was 513 hand-written pages, some 503 more than allowed by the rules.  Let's hope prison rules don't prohibit Cody from wearing his tinfoil hat. 


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