Case Update
Down in DC, the Supreme Court accepted cert in a followup to its decision last year in Graham v. Florida (discussed here) prohibiting the imposition of life without parole on a juvenile in a non-homicide case. The two new cases are Miller v. Alabama and Jackson v. Arkansas. Miller got LWOP when he was fourteen, after beating his neighbor, then setting the neighbor's trailer on fire, leaving him to die of smoke inhalation. Jackson was also fourteen when he served as the lookout in a video store robbery in which the store clerk was killed. The Court's 8th Amendment decisions over the past decade have invariably been 5-4, and expect more; as one wag put it, the Court's jurisprudence in this area could be described as depending upon "the evolving standards of Kennedy." The other news of petitions to come arose from the DC Circuit's decision upholding the Affordable Care Act by a 2-1 vote. The majority opinion was written by Judge Laurence Silberman, generally regarded as an intellectual heavyweight in conservative circles (he wrote the circuit's opinion in Heller v. District of Columbia striking down the district's gun laws, which was subsequently affirmed by the Supreme Court), so there's an indication that a decision by the Supremes, now virtually assured by next June, just as the presidential campaign gets underway, may not fall along strict liberal/conservative lines.
The Court issued its first decision in an argued case, throwing more cold water on habeas actions in Greene v. Fisher. Rory Little over at SCOTUSblog gives an excellent summary of the decision, which would mostly be of interest to those plucky few lawyers who persist in pursuing habeas cases in the face of odds that make the Cleveland Browns sure-fire Super Bowl contenders by comparison. The short version is that the purpose of habeas is to "guard against extreme malfunctions in the state criminal justice systems," rather than "as a means of error correction." The Court followed that up by reversing the 6th Circuit's grant of habeas in another case, affirming in Bobby v. Dixon that a habeas petitioner "must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." It should be noted that both decisions were unanimous.
I'm going to be giving a seminar in December on updates in Ohio criminal law (and another on the same subject in January for the Cuyahoga County criminal bar assocation), and one of the ways I prepare for that is by going over the Case Updates I've done for the past year. I had the feeling that this hasn't been a big year for Ohio Supreme Court decisions on criminal matters, but I was still surprised to see how many updates included the phrase, "nothing new from Columbus." Well, add another to that list. My interest was briefly piqued by the the arrival in my email box of the Supreme Court's announcement on November 9 that it had issued "five merit decisions with opinions." The email comes with a link to the actual text of the announcement; for whatever reason, my email client warns me not to open the link because it thinks the message might be a scam. In this case it was right: the "five merit decisions with opinions" consisted of five cases in which the court, in a single sentence, vacated an appellate decision and remanded the case for consideration in light of its decision the week before in State v. Lester (discussed here).
On to the courts of appeals, where there is something new, something old, something blue, whatever...
The 8th District decides in State v. White that, under the test for allied offenses in State v. Johnson, robbery and theft merge. I'm trying to think of a test for allied offenses where they wouldn't, and I'm pretty much drawing a blank... In State v. Criswell, defendant's case is remanded for proper imposition of post-release control. The 1st District holds that that's all the trial court could do; the judge wasn't allowed to merge the defendant's convictions for preparation for sale and sale of cocaine, and couldn't make the sentences concurrent instead of consecutive... A trial court didn't abuse its discretion in refusing to tell the jury that it had found the child victim incompetent to testify, the 2nd District holds in State v. Hill; doing so would have only led to confusion among the jurors as to the meaning of "incompetent," and as to whether that meant the judge had found her testimony implausible... A court can admit hearsay in a motion to suppress hearing, the 10th District holds in State v. McKenzie; at issue there was one cop's testimony as to what another cop, who didn't testify, had told him as to the basis for an arrest...
The 5th District kicks out a case for speedy trial violation in State v. James: if the trial court is going to sua sponte continue the trial outside the time limit, it must journalize the entry explaining its reasons for doing so prior to the expiration of the time... In State v. Holmes, the defendant appeals from denial of a post-conviction relief petition alleging ineffective assistance of counsel. The 8th District affirms, noting that in defendant's appeal he raised an IAC claim, albeit on different grounds, and that res judicata bars consideration in a PCR petition of anything which was or could have been raised on appeal... Once a conviction is affirmed on appeal, the trial court can't consider a motion to withdraw a guilty plea, the 9th District holds in State v. Crangle... The trial court didn't err in ordering the defendant to pay the costs of his court-appointed counsel, because the record didn't indicate that defendant didn't have the ability to obtain employment and pay it, says the 12th District in State v. Hall... Movement of the victim from the front porch of her house into her kitchen wasn't sufficient to create a separate animus for kidnapping and robbery convictions, the 3rd District holds in State v. Stall...
More on the 4th from the 2nd. Back in August, I wrote a post complimenting the 2nd on the general quality of its opinions, but lamenting that it had a poor reputation on search and seizure cases. No doubt stung by criticism -- no doubt -- the 2nd has done a complete about-face. Just last week in State v. Gardner the 2nd reversed the holding that had given me and others so much trouble: that a defendant who has an outstanding warrant has no "reasonable expectation of privacy," and so cannot complain of the invalidity of a stop, no matter how lacking in a basis it was. This week, in State v. Williams, it reverses the denial of a suppression motion where the officer stopped a vehicle which had dealer's plates because it was 8:30 PM, after dealerships were closed. The court noted that a dealer or his agent could drive a car with dealer's plates for many purposes at just about any time. Of particular significance is that the trial court had found that the defendant didn't show any of those reasons applied to him. That's not up to him, said the panel: it's the cop's burden to show that he had a reasonable basis for the stop, not the defendant's to show that he didn't.
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