Case Update
No decisions from SCOTUS so far this year, but arguments in
several criminal cases. One was in Burt v. Titlow, which I discussed here. The other was three weeks ago in Kaley v. US, which involves the
increasing use of an "asset freeze": if
a defendant is charged with offenses which can result in criminal forfeiture,
the judge can enter an order restraining the defendant's assets. When the Kaleys, husband and wife, were
indicted in a complicated case alleging that they planned to steal and then
resell prescription medical devices, the judge froze their $500,000 certificate
of deposit. The Kaleys argued this
prevented them from hiring the lawyers of their choice, and the issue is whether
the trial court was required to hold a hearing to determine if there was
probable cause for the indictment, and thus the restraining order. The issue is more difficult than it might
appear, because it allows the judge to essentially overrule the grand jury's
finding of probable cause, and would also allow the defendants a shot at the
government's case. No clear outcome
emerged from the argument, but Breyer's suggestion of a hearing of limited
scope might find five justices in favor of it.
The Court granted cert in one other case, which should have
substantial impact in death penalty cases.
Six years ago In Atkins, the
Court held that executing the mentally retarded violated the 8th Amendment, but
left it largely up to the states to implement the decision. That's been an uneven process; Georgia, for
example, requires the defendant to demonstrate retardation beyond a reasonable
doubt. Hall v. Florida, the case accepted two weeks ago, involves Florida's
decision to implement a "bright line" rule:
the death penalty isn't prohibited unless a person's IQ is 70 or
below. Perhaps the most telling aspect
of Hall's case, though, is not the issue of his mental capacity, but the fact
that he's been in prison since shortly after the crimes were committed - 35 years
ago.
The Ohio Supreme Court was also
busy, handing down a decision last week in State
v. Clark, involving the question of whether a 3-year-old's statements to
his teachers about child abuse were testimonial under Crawford. We'll break that
down on Wednesday. In another decision, State v. Wesson, the post-release control silliness raises its head again. Wesson was convicted of aggravated murder
with the specification that the crime was committed while the defendant was under
detention, in this case, post-release control.
The conviction for which Wesson was placed on PRC was burglary, a
second-degree felony, which would have required a mandatory three years of
PRC. Horror of horrors, the judge
imposed a discretionary three-year
period. This meant that PRC wasn't
validly imposed, which rendered its imposition void. Last year, in State v. Billiter (discussed here),
the court vacated the defendant's conviction for escape for failing to report
to his parole officer because PRC had been improperly imposed. The same logic applies to Wesson's case: since Wesson's PRC was void, the
specification that he committed the crime while under detention had to go, too. Doesn't do Wesson any good; he was convicted
of two other capital specifications, and the court affirmed his death sentence.
We've got about three weeks of appellate decisions to work
through, so let's take a look...
In State v. Fischer, the defendant
takes a small arsenal - an AK-47 and a 40-caliber pistol, each with multiple
clips of ammo - into a Walgreen's to rob the pharmacy. As he's leaving, a police car pulls up. Fischer pumps six rounds into the car; when
the officer exits the car, Fischer fires a few shots at him. The 2nd District finds these two latter events
sufficiently separate to support convictions for vandalism and felonious
assault. To add insult to injury, the
court rejects Fischer's argument that he shouldn't have been ordered to pay
restitution and costs because he was indigent, finding that Fischer "should be
able to pay some portion of the $6,025.18" over the course of his 50-year
prison sentence.
In State v. Swihart, the defendant is
convicted of aggravated vehicular homicide, and at sentencing, defense counsel
objects to a statement in the presentence report that Swihart laughed during
the trial. The court doesn't address
this in imposing a 54-month sentence, and the 3rd District vacates the
sentence. Why? Because when a defendant asserts that an
allegation in the presentence report is inaccurate, the judge must do one of
two things: make a finding as to the
allegation, or determine that no finding is necessary because the judge won't
take the allegation into account at sentencing.
A trial court can't order restitution to a government agency
for the money it spent on drug buys through an informant, the 6th District
holds in State v. Williams... While RC 2935.03
prohibits an officer making a warrantless arrest and detention of a person
outside his jurisdiction, his doing so isn't a constitutional violation, and
isn't subject to suppression on those grounds, says the 10th District in State v. Wilson... In State v. Thompson, the 8th District
notes that it takes more than pointing a gun at a person to constitute
felonious assault, but it doesn't take much. Shooting the gun will do, of
course, but so will verbal threats, in this case, "I'll bust you"... RC
4513.263(F)(1), which bars evidence of failure to wear a seat belt except for a
charge of failing to wear the belt, prohibited the defendant from introducing
evidence in an aggravated vehicular homicide of whether the victim was wearing
a seat belt at the time of the accident, the 3rd District rules in State v. Fetter...
The headnote says it
all. The Lexis summary for the 2nd
District's decision in State v. Willis:
Evidence was sufficient to find
defendant guilty of unlawful restraint under R.C. 2905.03 as he had no
privilege to restrain child because he had no custodial rights; and, even if he
had custody rights, he exceeded any privilege to restrain child when he
obtained and maintained custody without mother's consent by shooting at her and
her family.
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