Case Update
The US Supreme Court has finished oral argument for the term, and about the only key criminal case still undecided is Melendez-Diaz v. Massachusetts, involving the applicability of Crawford v. Washington to lab reports. Word is that President Obama may announce his pick for the justice to replace David Souter; a somewhat disquieting aspect of that is that he took longer to pick his dog. That selection, of course, will initiate one of the capitol's favorite contact spectator sports: the nominee's confirmation hearings. The pointlessness of those proceedings was best summarized by Abe Lincoln when questioned about his nomination of Salmon Chase: "We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it."
Down I-71, the Ohio Supreme Court started churning out decisions again. One was on the savings statute for wrongful death actions, which I discussed last week, and another was on arbitration clauses for nursing home residents, which I'll discuss later this week. If you do administrative appeals, you'll want to check out Medcorp Inc. v. Dept. of Job & Family Serv., which holds that in the requirement that "the grounds of the party's appeal" has to be set forth means that parties must identify specific legal or factual errors in their notice of appeal; a simple statement that the order appealed from "is contrary to law and not supported by reliable, probative, or substantial evidence" doesn't cut it. And in Olympic Holding Co. v. ACE Limited, the court holds that a promissory estoppel argument that the other party has breached a promise to sign an agreement can't be used if the statute of frauds requires the agreement to be in writing.
That'll come up a lot in my practice. Anyway, on to the courts of appeals...
Criminal. 6th District says that detective in sex abuse case was qualified to give expert testimony as to "delayed disclosure" of victims, even though court never declared detective to be an expert... 1st District says that when trial court informs defendant of post-release controls at sentencing, but fails to include it in journal entry, proper remedy is not new sentencing hearing, but simply adding PRC in a nunc pro tunc entry; opinion is only two paragraphs long, and doesn't explain seeming conflict with Bezak and other PRC cases... 9th District upholds conviction, says that trial counsel's decision not to seek instruction on lesser included offense a matter of trial strategy, not basis for ineffective assistance of counsel claim... 3rd District says trial court erred in excluding cross-examination of victim as to whether she tried to defend herself against alleged rape; question went to issue of consent, and was not barred by statute stating that victim need not prove that she physically resisted... Tilting at windmills: Defendant in 5th District case claims that guilty plea wasn't properly made because trial court failed to inform him of fact that jury verdict had to be unanimous, despite Supreme Court precedent saying that's unnecessary; you guess the result... 8th District says that Colon error in robbery indictment irrelevant, since defendant was convicted of lesser-included offense of theft...
Civil. When bad things happen to bad people: 10th District affirms $56,000 auto accident judgment against defendant insured by Allstate, rules that trial court correctly excluded cross-examination of plaintiff's expert, says questions re alternative theory of causation of injury had to be expressed in terms of "reasonable probability," not mere possibility... 3rd District holds that fraud claim must be brought against estate within statute's 6-month period, regardless of when it was discovered...
Looking for a new job? If this law thing isn't going your way, you might want to think about working on an assembly line, like the plaintiff in Davis v. Johnson Controls does:
His specific job duty is to place six negative and six positive plates, which are strapped together in sets of two, each weighing five and one-half pounds, into a battery. Davis grabs an empty battery case, puts it in front of him, loads the plates into the battery, and slides the battery down to the a conveyor belt. After appellee loads the plates into the battery case, it weighs approximately 30 pounds. A battery is built every 21 seconds.
Davis spent 14 years doing that for 12-hour shifts.
Divorce, American style. The 6th District's decision in Gore v. Gore stands as a stark reminder of how people who once stood before a preacher and promised to love each other for life can subesquently develop an unbounded loathing for one another. The court notes that "for a prolonged period of time following their divorce, the parties filed numerous motions to show cause and for attorney fees, primarily arising as a result of disputes concerning visitation and parental rights." You could have pretty much guessed that from the ex-husband's assignments of error in his pro se brief, which include:
Did the trial court err in ordering the parties to participate in counseling sessions without including appellant/cross-appellee's new husband who has positioned himself in the conflict?Was the trial court correct in finding the appellant/cross-appellee in contempt for failing to produce the requested video footage of their deceased [son], Elijah?"
And the saddest one:
Did the trial court err in finding that 'all three children are on Prozac'?
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