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Case Update

Less than two months until the Supreme Court launches its 2017 Term.  Mark your calendars.  The Court's already accepted over 30 cases for next year; the next big news on that front will come on September 25, when the Court has its "long conference" to look over the petitions that have accumulated during the summer and pick which ones are worthy of the Court's time. 

One of them might be Final Exit Network, Inc. v. Minnesota.  Final Exit Network and its primary publication, "Exit Guide," are not intended to aid movie-goers in finding their way out of a movie theater in the event of a fire or similar calamity; they exist to "provide information, education, and counseling to Network members who have decided to terminate irremediable suffering."  Doreen Dunn availed herself of these materials, and her self-induced demise resulted in Final Exit's prosecution under a Minnesota law which prohibits assisted suicide.  Final Exit did not commit any physical acts, so the case presents a free speech issue. 

The Court's been very First Amendment-friendly in recent years, and not-so-recent, for that matter:  it's struck down laws prohibiting marketing of violent video games to minors, falsely claiming that you got military medals, prohibiting videos of animal cruelty, and, just last term, allowing the patent office to reject offensive trademarks.  Given that, I don't see much hope for the Minnesota law, but it sure should draw some interesting amicus support on both sides.

Ohio executed its first inmate in three and a half years the other week.  On the one hand, we're the only non-Southern state to kill people.  On the other, we're still not in the Big Leagues in that category; Texas executed two people that same week.

James Wogenstahl has a date with the gurney up here, although that date's been reset any number of times:  he was sentenced to death back in 1992.  His latest appearance before the courts came with the Ohio Supreme Court's decision a few weeks back in State v. Wogenstahl

We won't get into an extended discussion about the decision, because it doesn't have any real significance for anyone besides Wogenstahl, for reasons I'll explain in a minute.  Basically, Wogenstahl kidnapped a 10-year-old girl and killed her.  This happened in Harrison, Ohio, which sits on the border with Indiana.  And I mean, "on the border"; State Street is the dividing line between Harrison, Ohio, and West Harrison, Indiana, and the state line runs down the middle of the street. 

The girl's body was discovered in Indiana.  The law at that time provided that the homicide had to have taken place in Ohio for the state to have jurisdiction, and thus the question was where the girl was killed.  (That's no longer a question; in 2005 the legislature amended the statute to specify that if any element of the crime is committed in this state, Ohio has jurisdiction.)  Everybody on the court agrees that the State didn't prove beyond a reasonable doubt that the killing took place in Ohio, but the majority decides that the defendant didn't show that the killing took place in Indiana, either, so it's a wash, and Wogenstahl's conviction and death sentence are upheld.

The Chief Justice, joined by O'Neill, makes a fairly convincing case that the killing certainly didn't take place in Ohio, bolstered by the testimony of someone who observed Wogenstahl driving in In Indiana, and saw the girl moving in her seat.  More troubling is the court's handling of the burden of proof; although it never addresses the question, somebody has to bear the burden, and placing it on the defendant to disprove jurisdiction seems a little much.  The decision can more likely be chalked up to application of the Bad Man Doctrine.

Motions for reconsideration are all the rage in the Supreme Court, and another one comes down in State v. D.B., a case involving the reverse bindover provisions of the juvenile code.

Say what?  Let's say that your client, a minor is charged with two counts of aggravated robbery with a gun.  That's subject to mandatory bindover; it has to go to the Common Pleas court.  But what happens if the defendant goes to trial and is convicted of only theft?  That's a fourth or fifth degree felony, and isn't subject to bindover.  In that situation, the case goes back to the juvenile court for disposition.

But what if the juvenile is convicted of one count of aggravated robbery, and one count of theft?  Does the theft case go back to juvenile court?  The Second District said yes, the Eighth District said no, so up it went to the Supreme Court on a certified question.

That's where things got funky.  The Supreme Court decided last December in State v. Aalim that the mandatory bindover provisions were unconstitutional, and remanded D.B. back to the juvenile court for an amenability hearing; if D.B. was found to be amendable to rehabilitation in the juvenile system, he'd stay there, otherwise the case would go back to common pleas. 

But then, on reconsideration, the court reversed Aalim.  (My jeremiad about that here.)  So what to do about D.B.?  Well, the mandatory bindover provision is no longer invalid, which means the juvenile court can't follow the remand order in D.B., so the court has to confront the issue head-on:  what does happen when a case is bound over to common pleas court, and the defendant winds up with convictions for non-bindover charges as well as bindover charges?  The court reconsiders D.B., and announces:  nothing happens.  The common pleas court sentences on all the offenses; nothing goes back to juvy.


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