Ohio

Putting Foster on Ice

Posted on January 19, 2009
Three years ago, in State v. Foster, the Ohio Supreme Court decided that the Ohio sentencing statutes pertaining to consecutive sentencing were unconstitutional because they required judicial fact-finding before such sentences could be imposed.  On Wednesday, in Oregon v...

R.I.P., exclusionary rule?

Posted on January 16, 2009
Wednesday  saw the US Supreme Court hand down the 9th and 10th opinions  of the term.  Herring v. US is either the application of prior law to a narrow, fact-specific situation, or the harbinger of a good faith exception to the exclusionary rule for warrantless searches...

Federal power, and cleaning up

Posted on January 15, 2009
I’ve commented before on how there are several areas of Ohio law desperately in need of a clean-up by the Ohio Supreme Court:  sentencing, allied offenses, stare decisis, to name a few.  There are some areas of constitutional law which could use a fresh look by the US Supreme Court, too...

Supreme Court News

Posted on January 15, 2009
Today’s regular post is right below this.  There were a couple of major US Supreme Court decisions yesterday, one on sentencing and one on search and seizure.  I’ll have a post tomorrow on the latter, which could be one of the biggest cases on the application of the exclusionary rule to come down the pike [...

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Year in Review - Sentencing

Posted on January 14, 2009
2008 may have been the year that the Ohio Supreme Court realized that sentencing had become completely screwed up since its decision two years before in State v. Foster.   Sadly, 2008 was not the year that anything much was done about it.  The court got the ball rolling in State v...

What’s Up in the 8th

Posted on January 13, 2009
State v. Colon, the Supreme Court’s decision last year on when an indictment is defective because it fails to include a mens rea element (discussed here), rears its ugly head in two more 8th District decisions this week.  The first is State v. Lawrence, or State v...

Case Update

Posted on January 12, 2009
The gang in Washington gets back to work this week, with eight cases scheduled for oral argument, including six criminal cases.  The two most significant are Montejo v. Louisiana, which involves the question of interrogation after counsel has been appointed for a suspect, and Boyle v...

Dysfunction at the Junction, and other stuff

Posted on January 09, 2009
That the US 6th Circuit is given to internal squabbling isn’t new; the “lack of collegiality” among the Circuit’s 12 judges, presently 10 Republicans and 6 Democrats, was noted over five years ago in this newspaper article.  And the bitterly contested dispute over Secretary of State Jennifer Brunner’s ruling on Ohio registration — the court [...

Gone, Baby, Gone

Posted on January 08, 2009
Maybe 2009 will be a better year than 2008 for Portage County Municipal Judge John Plough.  Then again, 2007 wasn’t any great shakes, either.  That’s when Portage Common Pleas Administrative Judge Laurie Pittman filed a complaint against Plough with the Ohio Disciplinary Counsel, claiming that he was making “a mockery of justice...

Year in Review - Allied Offenses

Posted on January 07, 2009
The Ohio Supreme Court spent much of the past year attempting to extricate itself from the mess it created in its 1999 decision in State v. Rance.  Before that decision, allied offense analysis under Ohio law followed pretty much of a common-sensical approach...

8th District Roundup

Posted on January 06, 2009
Well, my worries proved unfounded.  A couple of weeks back, I recounted my latest foray into the 8th District, involving a claim of ineffective assistance of counsel because of a failure to file a motion to suppress the defendant’s un-Mirandized statements...

New Year’s Resolutions

Posted on January 05, 2009
Welcome back.  As you can see, although I took time off from blogging, I didn’t take time off from working on the blog.  I finally got around to updating the software I use for doing this, since it’s gone through four revisions since I started back in May of 2006...

Case Update

Posted on January 05, 2009
The gang down in DC really knows how to holiday; nothing’s scheduled for this week, and nothing’s happened in the past two save for Chief Justice Roberts’ yearly report on the state of the Federal judiciary, in which he devotes a substantial amount of time to complaining about judicial salaries (judges were the only federal [...

Closed for the Holidays

Posted on December 23, 2008
I’m betting you’re going to have a better holiday than this guy. See you back here on January 5th.

A Christmas Story

Posted on December 22, 2008
‘Twas the week before Christmas, and all through the courthouse, not a creature was stirring, except for the people in Courtroom 21-A, who were listening to the judge finish up his instructions to the jury an hour after the building had been officially closed...

Death Penalty Holdouts

Posted on December 19, 2008
The Ohio Supreme Court’s decision this week in State v. Diar is rather interesting, in light of some recent developments in the death penalty in Georgia.  In most situations, a holdout juror, unless he can persuade everyone else to adopt his view, can do more than deadlock the jury...

IAC Claims and Motions to Suppress

Posted on December 18, 2008
I got assigned an appeal a little while back with an interesting issue.  The case centered on one of the city’s local after-hours joints, where drinks are dispensed without benefit of a license from the Liquor Commission, and, horror of horrors, people gamble, too...

One more time down into the mens rea rabbithole

Posted on December 17, 2008
The least of Howard Clay’s difficulties was the weapons under disability count he was facing; the two felonious assault charges, both with gun specs, were the bigger problem.  Then again, the disability charge was more defensible:  Clay had been indicted under the provision of the statute which creates a disability for someone “under indictment” for possession [...

What’s Up in the 8th

Posted on December 16, 2008
Interesting week in the 8th District.  Twenty-five cases, only eight of which are criminal; usually, that ratio is reversed.  Of the eight, three are reruns, having been before the court before.  The court’s struggle with allied offenses continue...

Case Update

Posted on December 15, 2008
Nothing out of DC, but the Gang of Seven in Columbus more than makes up for it, with a half-dozen decisions, all of them notable.  In State v. Diar, where the court affirmed the conviction of a woman who killed her 4-year-old child, but vacated the death sentence because the jury had been instructed that all [...

Errata and holiday scheduling

Posted on December 15, 2008
If you’ve stopped here looking for the Case Update, relax, it’s right below this post.  One of my legions of faithful readers pointed out that I’d screwed up the link for the case I’d mentioned regarding expungement on Friday (the one that says an uncounseled misdemeanor conviction is still a prior offense for purposes of [...

Friday Roundup

Posted on December 12, 2008
This isn’t Texas anymore.  When George W. Bush was Governor of Texas, he signed the death warrant for 152 executions; that was a full 38% of the death row inmates executed during that time period in the entire United States.  When he returns to Crawford in another 40 days, he’s going to find the state [...

An expansion of Terry?

Posted on December 11, 2008
The course of true love never runs smooth, and neither does the 4th Amendment.  That was clear after the oral argument Tuesday in Arizona v. Johnson, the Supreme Court’s latest foray into that thicket. The case stemmed from a traffic stop:  a random license plate check revealed a vehicle had an insurance suspension, so the police [...

Knowing your limits, and other disciplinary tales

Posted on December 10, 2008
There comes a point in just about every attorney’s career when you realize you’re in over your head.  Most of the time, it’s because you’re spread too thin.  You’ve just got too much going on, and it’s gotten to the point where stuff’s falling through the cracks:  you’re missing deadlines, you’re not keeping track of pretrials, you’re [...

What’s Up in the 8th

Posted on December 09, 2008
The court spent the week, for the most part, tying up some loose ends, at least in the criminal area.  Two cases, State v. Hayden and State v. Briscoe, involved Colon questions.  You’ll remember that back in May, the Supreme Court held in Colon I that an indictment for aggravated robbery for causing serious physical [...

Case Update

Posted on December 08, 2008
Last week in Washington, the Supreme Court heard argument in the Phillip Morris case, which stems from an Oregon judgment for $80 million in punitive damages in a smoking case.  The Court has reversed the judgment twice, only to have the Oregon Supreme Court reinstate it on different grounds...

Friday Roundup

Posted on December 05, 2008
Guess he’ll learn what a tight end really is.  Seems that Giants wide receiver Plaxico Burress’ biggest problem isn’t that he (a) shot himself in the leg, thus (b) getting a four-game suspension which will cost him over a million dollars, and (c) putting in jeopardy the $35 million contract he signed at the start [...

Balancing the scales?

Posted on December 04, 2008
On August 26, 1998, Jeremy Gross robbed a convenience store.  He had worked there part time, and knew the clerk, 24-year-old Christopher Beers.  There was little finesse to the robbery.  Gross and an accomplice marched into the store, and Gross shot Beers in the chest and stomach, then followed him into the back office and [...

True stories

Posted on December 03, 2008
I have a preliminary hearing for Bobby.  According to him, he and his pals are standing outside a store when the police pull up and, for no reason, frisk him and find drugs.  No reason?  No reason, he assures me. The arresting officer is the only one to testify at the hearing...

What’s Up in the 8th

Posted on December 02, 2008
If you’re a judge, here’s the trick about dealing with a defendant who’s not a citizen:  just read the language contained in RC 2943.031(A).  If you do, end of story.  If you don’t, well… that’s when we get into “substantial compliance...

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