Ohio

Don’t Bogart that joint

Posted on April 28, 2010
There’ll be a referendum on the ballot in California this fall on whether to legalize marijuana.  If it passes — and polls show a majority favoring it — my client Randolph is a sure bet to head out there.  By bus, not plane; despite being 24 years old, Randy doesn’t have a job...

What’s up in the 8th

Posted on April 27, 2010
Ever wonder why cops treat the 4th Amendment with borderline disdain?  Because they see lawyers and judges spending hours and days mulling over decisions which the officers have to make in a split second.  For example, let’s say you’re a cop who’s looking for someone named Frederick, pursuant to an arrest warrant...

Case Update

Posted on April 26, 2010
The only significant decision out of SCOTUS this past week (significant to me, anyway) was US v. Stevens, which struck down on First Amendment grounds the federal statute banning creation or sale of depictions of animal cruelty.  The opinion was not unexpected; the government was left to argue that animal cruelty videos should occupy a [...

Friday Roundup

Posted on April 23, 2010
Naming names.  My post on Wednesday about vindictive sentencing drew some response, not so much about the principles regarding that topic, but about the particular judge’s comments about his displeasure at the court of appeals’ reversal of an earlier guilty plea in the case...

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Another look at Bezak?

Posted on April 22, 2010
Beginning in State v. Jordan and capped by State v. Bezak, the Ohio Supreme Court has held that the failure of the trial court to properly impose post-release controls resulted in a void sentence.  The logical implications of that ruling dominated the arguments before the Ohio supreme Court several weeks ago in State v...

Vindictive sentencing

Posted on April 21, 2010
Last week’s 8th District decision in State v. Barnes demonstrated two things.  First, sometimes it’s better if you don’t get what you asked for.  Second, while trial judges can get upset by being reversed by the court of appeals — and sometimes understandably so — it’s best for the judge not to voice his displeasure at [...

What’s Up in the 8th

Posted on April 20, 2010
When I’m given an appeal, one of my concerns is that I won’t find any errors.  This week’s body of work from the 8th indicates why that’s rarely a problem for lawyers assigned to handle an appeal from a municipal court trial.  It also provides instruction on several burglary issues, and reminds us of the [...

Case Update

Posted on April 19, 2010
SCOTUS goes back into session next week, with decisions to be announced on Tuesday and Wednesday.  Still on the list of undecided cases are the two on life imprisonment without parole for juveniles.  If those come down, I’ll have a post on that on Thursday...

Friday Roundup

Posted on April 16, 2010
Overburdened prosecutors.  Friday’s my “lazy day” here.  Instead of reading cases, I read other legal blogs to see what’s going on, and pull stuff I find interesting.  I started doing that because I figured it would be quicker...

Notice and demand and 2925.51

Posted on April 15, 2010
Last summer, in Melendez-Diaz v. Massachusetts (discussed here), the US Supreme Court held that admission of lab reports without the live testimony of the person who performed them violated a defendant’s confrontation rights.  The Court did sanction the use of “notice and demand” statutes, which notified the defendant of the report and then required him [...

What’s Up in the 8th

Posted on April 14, 2010
After reading this week’s bevy of 8th District cases, I’m rethinking my approach to appellate practice.  Maybe I should set a goal in each appeal of having assignments of error at least reach the double digit level.  Maybe I should push the envelope in the arguments I make...

Case Update

Posted on April 13, 2010
The big news out of DC is, of course, the retirement of Justice John Paul Stevens, the court’s most liberal member, at the end of this term.  Everybody already smells blood in the water as President Obama mulls over a replacement pick, and the urging from this quarter is that the matter be resolved through [...

Thursday Roundup – Multimedia Edition

Posted on April 08, 2010
Yes, I know, we’re doing the Roundup a day early.  I’m on the road tomorrow, and won’t be back in town until Sunday.  So no post tomorrow or Monday; we’ll have the Case Update next Tuesday. Interesting juxtaposition.  No, that’s not a picture of the TV room of the local nursing home...

Gant; videotapes

Posted on April 07, 2010
Arizona v. Gant was one of the biggest Supreme Court decisions on 4th Amendment law in the past five years, and probably the most (only?) pro-defendant one in ten.  The decision (discussed here) effectively overruled New York v. Belton, which had permitted police to search the interior of a vehicle, and any closed containers in [...

What’s Up in the 8th

Posted on April 06, 2010
Sometimes I think I should use this blog as an advice column for criminals, applying the store of knowledge I glean from reading the 8th District cases.  For example, from this week’s batch: Dear Briefcase:  I pled out to a couple of cases, and I don’t think my attorney did a good job explaining what was going on...

Case Update

Posted on April 05, 2010
The news out of Columbus was sad:  the untimely death of Ohio Supreme Court Chief Justice Thomas Moyer on Friday, coming just two weeks after the passing of Frank Celebrezze, the man he beat for the post in 1986.  Moyer was a conservative, but he was always faithful to the law, not his ideology, in [...

Friday Roundup

Posted on April 02, 2010
Tort reform beckons.  Yes, we’ve all heard those horror stories about companies compelled to put ridiculous warnings on their products to alert consumers to the dangers of, say, putting your hand into a running lawnmower.  But, with a hat-tip to Legal Blogwatch, we find courtesy of  The Consumerist that the boys over at Antennas Direct, a [...

It ain’t easy being a lawyer

Posted on April 01, 2010
A day after I bemoan the dilemma a lawyer faces in deciding whether to seek the withdrawal of a plea that he believes has substantially benefited his client, the US Supreme Court comes down with a decision that may further complicate our lives.  In Padilla v...

A lawyer’s dilemma

Posted on March 31, 2010
It’s happened to just about every defense attorney.  You work your butt off getting your client the best possible deal, he grudgingly agrees to it and pleads out, but a week or two before the sentencing he gets second thoughts and wants to withdraw the plea...

A lawyer’s dilemma

Posted on March 31, 2010
It’s happened to just about every defense attorney.  You work your butt off getting your client the best possible deal, he grudgingly agrees to it and pleads out, but a week or two before the sentencing he gets second thoughts and wants to withdraw the plea...

What’s Up in the 8th

Posted on March 30, 2010
On New Year’s Eve in 2007, Kevin McDermott, a 52-year-old lawyer, went jogging in his Shaker Heights neighborhood.  It almost cost him his life; he was set upon by six teenagers from adjacent Cleveland, who shattered his leg with a pipe and beat and stabbed him...

Case Update

Posted on March 29, 2010
The only decision out of SCOTUS this week was one on student loans and bankruptcy, although it should at least double that output this week:  it’s announced that decisions will be handed down on both Tuesday and Wednesday.  Their Ohio counterparts were much busier, handing down four major decisions...

Friday Roundup

Posted on March 26, 2010
Supreme Court news.  There are several cases still pending for decision by the Supremes — the two cases involving life imprisonment without parole for juveniles probably being the most noteworthy — but the Court also added another case for ruling next year...

DNA testing, and more

Posted on March 25, 2010
Last year, in District Attorney’s Office v. Osborne, the US Supreme Court confronted the question of whether the Due Process Clause required Alaska to provide DNA testing to an inmate claiming actual innocence.  Despite the somewhat tenuous nature of Alaska’s case — it had fought Osborne’s requests for DNA testing for a decade, and at oral [...

Know when to hold ‘em

Posted on March 24, 2010
When the judge takes the time to inform your client of all his rights, just like he was making a plea, it’s a pretty good hint that she thinks your client should make the plea.  While she was doing it, I couldn’t help wondering if she was right...

What’s Up in the 8th

Posted on March 23, 2010
It seems that one of the functions of the Cleveland Police Department any more is testing my literary skills in constructing metaphors describing their abysmal lack of understanding as to the most rudimentary tenets of the 4th Amendment.  This week provides another workout...

Case Update – Tanned, Rested and Ready Edition

Posted on March 22, 2010
Overheard in Phoenix, native resident to tourist:  “Do you have cactus in Michigan?”  Yeah, they used to, but the palm trees crowded them out. SCOTUS decided to honor my vacation by not handing down any decisions; the talk down by the Potomac centered around the Court’s nifty new web site, and the possibility of Justice Stevens’ [...

Friday roundup – Go west

Posted on March 12, 2010
Bread and Circuses.   In my very first trial, sitting second chair in a personal injury case, I learned a valuable lesson.  During our client’s cross-examination, it came out that he had a prior injury he’d neglected to tell us about.  I shot a quick, “what-do-we-do-now” look at lead counsel...

Jurors with disabilities

Posted on March 11, 2010
As the court of last resort on state law questions, the Ohio Supreme Court is asked to hear thousands of cases a year; it agrees to hear only a few hundred, and issues opinions in even fewer.  With that kind of workload, the court tries to get the maximum bang for the buck; opinions should resolve broad [...

A new look at sentencing?

Posted on March 10, 2010
In my Case Update on Monday, I’d mentioned in passing the 2nd District’s decision in State v. Watkins.  Since Watkins is arguably the most interesting sentencing opinion since the Supreme Court gutted Ohio’s sentencing laws four years ago in State v...

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