Results matching “state v. marcum”
What's Up in the 8th
I've argued before that the Supreme Court's recent decision in State v. Marcum heralds a new approach in sentencing: an appellate court can reverse a sentence if it finds that the record clearly and convincingly doesn't support it. That's been the standard for appeals of consecutive sentences, but Marcum involved non-consecutive sentences. That contrasts with the 8th District's cases, which until recently have consistently held that as long as the sentence falls within the statutory range, it's a "pure exercise of discretion" and is "unreviewable." It's a bit muddled; while the panels in State v. Carrion and State v. Gay have looked at the record, the quote above is from State v. Cole, which was decided the same day as the other two.
Does the 8th's decision last week in State v. Anderson clear that up?
What's Up in the 8th
I greeted the passage of Ohio's Castle Doctrine in 2008 with some skepticism. The doctrine creates a presumption that you've acted in self-defense if you use deadly force to repel an intruder in your home. As I wrote at the time, whether this was worth the fuss was questionable: "It's not as though the nightly news regularly bombards us with scenes of homeowners being perp-walked out of their houses for shooting a burglar."
Little has occurred since to dissuade me from that belief.
What's Up in the 8th
In most state districts and Federal circuits, an en banc decision becomes the accepted law for that jurisdiction. Not so much in the 8th. Several years ago, the court in State v. Nia ruled, by an 11-1 vote, that henceforth they would require a trial court to strictly comply with the findings requirement for consecutive sentences. That ruling came to be honored mainly in the breach before the ink on the opinion was even dry, various panels engaging in Olympian semantical gymnastics to find something the judge said which could be construed to be one of the findings.
And so it appears to be with State v. Jones, the en banc decision on pre-indictment delay the 8th issued last year. In State v. Wilson, the court finds that Wilson failed to support his claim of pre-indictment delay with proof of actual prejudice that was "specific, particularized, and non-speculative," the very standard that Jones rejected. The problem with Wilson's case was not that proof of prejudice wasn't sufficiently specific, it was that it was non-existent; there's nothing in opinion indicating that Wilson could point to a single witness or piece of evidence that was lost by the delay. (By the way, I argued Jones in the Supreme Court a couple weeks back; I'll have a post on that on Thursday.)
What's Up in the 8th
Ohio is the only state in the Union to impose the burden of proving self-defense on the defendant. Brian Porter takes a run at changing that. We learn things about sex offenses that we didn't know. Two sentencing cases and a rush to justice round out this week's review of my favorite appellate court. (Really. No, really.) Let's take a look.
Did sentencing law just get better?
As the unnumbered legions of my regular readers know, I'm not a big fan of Ohio's sentencing law. A less nuanced way of saying that is that I think it's stupid, especially where appellate review comes in.
So I'm not surprised by the outcome of Supreme Court's decision yesterday in State v. Marcum. Marcum was convicted of setting up a meth lab in the house she shared with her children. She got ten years, the 4th District upheld that, and the Supreme Court unanimously affirmed. Dog bites man. No story here.
But boy, does Marcum open up a loophole.
Case Update
Good work for SCOTUS buffs who are multilingual: here's the interview Stephen Breyer gave to a French radio station, in French no less, his new book, The Court and the World: American Law and the New Global Realities. A bargain at any price, no doubt, and at $14.99 for the Kindle version, one you can't pass up. Unfortunately, you probably missed last Thursday's discussion by the Puerto Rico Solicitor General (in Spanish) of the upcoming Supreme Court decision in Puerto Rico v. Sanchez Valle, which has at least a tangential relationship to criminal law: the Court will determine whether Puerto Rico and the federal government are separate sovereigns for purposes of the Double Jeopardy Clause.
That's down the road -- no briefs have even been filed yet - and next week doesn't offer much more of interest. There's the oral argument in Foster v. Chatman, the Batson challenge case, and Luis v. United States, which concerns seizure of defendant's assets which could have been used to hire a lawyer, but after that things get grim: a couple of cases on statutory interpretation, and then nothing the rest of the year.
Down in Columbus, it was Lawyer Discipline Week. If you're thinking of failing to communicate with a client, charging excessive fees, not depositing client funds into your IOLTA account, or keeping the unearned portion of a retainer, don't. No criminal decisions, although this week features oral arguments in three of them. Creep of the Week Award goes to Terry Martin, who hid a camera in a pile of towels in a bathroom and used it to record an 11-year-old girl taking a shower. Relying on an earlier Supreme Court case, his lawyers argue that the statute prohibiting taking nude photos of children isn't a crime unless photo involves "lewd exhibition or graphic focus on genitals." (In case you're worried, the statute only applies to non-parents who don't have the parents' permission.) The argument would benefit from better facts, like, say, a babysitter taking pictures of a child in a bathtub.
State v. Pittman presents a simple issue of statutory construction. Ohio law makes it a criminal offense to fail to support a child that "the person is legally obligated to support." Pittman's two daughters turned 18 in 2006, at which time he owed more than $68,000 in support. He was ordered to pay $236 a month on the arrearage, and when he didn't, he was indicted for non-support. He argues that he can't be prosecuted because he doesn't have a current obligation to support his now-emancipated daughters.
State v. Marcum presents a complicated issue of statutory construction. Back in 2008, the Supreme Court in State v. Kalish (discussed here) set forth a two-part test for appellate review of felony sentencing; the second part was whether the trial judge abused his discretion. Then in 2011, as part of the HB 86 reforms, the legislature rewrote the statute on sentencing review, and specifically provided that "the appellate court's standard for review is not whether the sentencing court abused its discretion." I've got a pretty good idea how that will turn out, especially since Kalish was only a plurality opinion, but we'll talk more about it later this week.
In the courts of appeals...
Case Update
I skipped over the court of appeals cases last Monday, so
we've got two weeks' worth of them to go through. Let's hit the highlights.
Case Update
After whining for months about how I don't have anything to write about, my cup runneth over: oral arguments in four key SCOTUS cases last week, plus two decisions in criminal cases from the gang down in Columbus. Plus, two more key cases slated for oral argument before the US Supreme Court on Tuesday, one involving a double jeopardy issue and the other the question of what constitutes withdrawal from a conspiracy.
I could hire extra staff and go to two posts a day to handle all this, but that's not going to happen, so here's what we'll do. We'll cover the oral argument in the SCOTUS dog-alert case here, and cover the two Ohio Supreme Court decisions on Wednesday. On Thursday, we'll talk about the oral argument in Chaidez v. US, involving the issue of the retroactivity of Padilla v. Kentucky, and on Friday we'll tackle Bailey v. US, which raises the question of whether police can detain an occupant of a home being searched pursuant to a warrant when the person isn't really occupying the home at the time he's seized.
Last week I wrote about Florida v. Jardines, which involved the issue of whether a dog sniff at the door of a house constituted a search, and the news was fairly good; Scalia in particular seemed receptive to the defendant's argument. Not so good news with Harris. Harris also involved a dog sniff, but of a car. As I explained back in April when the Court took the case, the Florida Supreme Court had held that there wasn't sufficient evidence that the dog was trained to detect the odor of narcotics to allow an alert to establish probable cause.
Greg Garre, who'd argued on behalf of the state in Jardines, also argued Harris, prompting Scalia to inquire, "Are you for or against the dog this time?" With the amenities out of the way, the participants got down to the central issue: what would constitute sufficient evidence? It was relatively clear that everybody on the Court was having trouble with the rigidity of the Florida Supreme Court's holding: not only did the dog have to be certified and trained, but the judge "must" find that performance records - how often the dog falsely alerted, for example - demonstrate that the dog is sufficiently qualified. As Scalia noted, if a doctor's testimony was intended to establish probable cause, a court "would not go back and examine how well that doctor was trained at Harvard Medical School and, you know, what classes he took and so forth."
On the other hand, several of the liberal justices weren't overly enamored of Garre's proposal, that certification would be sufficient; Sotomayor asked him to cite an example of a case in which the Court had adopted "an absolute flat rule like the one you're proposing? Where else have we said that one thing alone establishes probable cause?" In my earlier post, I'd said, "Expect the NACDL to come in with an amicus brief here presenting studies... showing problems with false alerts, handler cuing, residual odors, and the like," and they did; Sotomayor was particularly troubled by an Australian study showing accurate alerts in only 12% of cases.
That's unlikely to carry the day, though; not even the liberals expressed any enthusiasm micro-managing the issue of dog qualifications, especially because, as Scalia noted, there's not much incentive for the cops to fudge the issue: a dog who gives lots of false alerts simply means a lot of time spent on searches which come up with nothing. Expect the Court to retreat a "totality of the circumstances" test, where certification goes a long way toward qualifying. That could be a good thing in itself; many states don't have any standards, and adoption of that sort of test could impel them to come up with one.
In the courts of appeals...