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Case Update

Last Monday was the first Monday in October, which means not only was it the first Monday in four weeks that didn't occur in September, it was the beginning of the U.S. Supreme Court's 2017 term.

One of the lead cases for oral argument last week was Gill v. Whitford, which has the potential to be the most significant case on politics since the 1962 "one man one vote" decision in Baker v. Carr.  (Oh, and there was that little dustup in Bush v. Gore that had some ramifications.)  Gill is an appeal from Wisconsin's 2010 redistricting scheme, the plaintiffs arguing that Democratic votes were diluted by the Republican legislature's gerrymandering.  That was relatively obvious:  In 2012, Republicans won only 48.6% of the statewide vote, but wound up with 60 of the 99 seats in the state assembly.  While at oral argument the four conservatives predictably voiced concern about venturing this thick, and the four liberals seemed more than willing to do just that, Kennedy seemed somewhat responsive to the plaintiff's arguments.

Of course, as the numberless hordes of my regular readers can attest, those seeking to learn more of this will not have the gaps in their knowledge filled by this blog.  Instead, they are respectfully directed to SCOTUSblog, where they can review a week's worth of commentary, while the rest of us stay here and talk about criminal law. 

Not too much going on there.  Last week's oral arguments included Class v. US, which poses the issue of whether a guilty plea waives a defendant's right to challenge the statute of his statute of conviction.  Of interests only to Federal practitioners:  in Ohio, a guilty plea waives everything except subject matter jurisdiction and ineffective assistance of counsel, and the latter only where the ineffective assistance induced the plea.  Good luck with that.

In fact, criminal cases are at a minimum through the end of the year:  the only one of real consequence presents the issue of whether the police need a warrant to get historical cell phone records.  Things pick up in the new year:  there are several cases on search and seizure law.  The most interesting one, though, is McCoy v. Louisiana, which presents an ineffective assistance of counsel claim.  McCoy was on trial for killing his estranged wife's son, mother, and step-father.  His lawyer wanted to concede his guilt in the hopes that the jury would not impose the death penalty.  McCoy objected strenuously, but the lawyer went and ahead and did it anyway.    

The Columbus gang was busy, too, handing down a couple decisions.  In State v. Dye, the state had initially charged Dye with arson and a bevy of other charges, but dismissed the case six weeks later.   A month after that, Dye filed to seal the records of his arrest.  The trial and appellate courts denied the motion, finding that the record was not eligible for sealing because the case had been dismissed without prejudice, and the statute of limitations hadn't expired.

As the court pointed out in a unanimous, and mercifully brief (a mere six pages) opinion, though, the language of the statute requires a court to determine whether the statute of limitations has expired only where the records of a case involve DNA specimens.  This was a conflict case, the 7th District certifying that its decision in Dye conflicted with one from Cuyahoga County.  After having been beaten up most of the summer by the Supreme Court, the 8th District gets a win.

The Supreme Court issues a case announcement every morning around nine, and yesterday's proclaimed that "in State v. Bembry, the Court ruled that if a police officer with a search warrant violates Ohio's 'knock-and-announce' law, the criminal evidence obtained during the search still can be used to prosecute the suspect."  A result, I thought, foreordained by the US Supreme Court's 2006 decision in Hudson v. Michigan, where Scalia denigrated the exclusionary rule in general and the knock and announce rule in particular, deriding it as "the right not to be intruded upon in one's nightclothes."  (As I pointed out in a post at the time, the ramifications of the decision are a bit more far-reaching than that.)  Hudson held that the exclusionary rule would no longer be applied for violations of the knock-and-announce rule.  Thus Hudson, so Bembry, I figured.

It's a little more complicated than that.  Given Hudson, Bembry argued that the Ohio Constitution required suppression.

It was just over a year ago that I wrote a post gloriously titled, "A new look at the Ohio Constitution."  The court had seemed wiling to use the Ohio Constitution as a source of rights independent of the US Constitution, culminating in its decision in State v. Mole.  In that case, the court had struck down the sexual battery statute as it applied to police officers and minors on the basis that the provision lacked any rational basis.  The court based its decision on the Ohio Constitution's due process clause, primarily because analysis under the Federal counterpart would have produced a different result.

But this was a mere harbinger of things to come, I breathlessly informed you.  (How one can "breathlessly" write a blog post I leave to your imagination.)  To be sure, I cautioned that "whether there will be four votes" for this position after the upcoming election "remains to be seen," but the result was "huge" nonetheless.


The better view now is that there's serious question as to whether there are any votes for this position.  The court rejects the use of the Ohio Constitution, the only dissent coming from French, who would have dismissed the case as being improvidently granted.  To be sure, O'Neill's opinion leaves open the possibility that the court will consider the Ohio Constitution "if there are persuasive reasons" to do so.  But in light of this, and other decisions from the court in the past year, I'm trying to figure out what those persuasive reasons might be, and I'm pretty much drawing a blank.


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