Ohio

Close encounters of the consensual kind

Posted on September 15, 2010
I’ve commented before on how, in search cases, police officers have a split-second to make decisions which judges and lawyers can then spend months second-guessing.  Sometimes, though, it’s the citizen who has to make a split-second decision...

What’s Up in the 8th

Posted on September 14, 2010
Labor Day has special significance in Cleveland, signaling that, in a month or so, gray skies and cold winds will wrap themselves around the city, and not release their embrace for about six months.  Possibly rendered morose by the prospect, the 8th District judges stir themselves only enough to issue a paltry nine decisions, about a [...

Case Update

Posted on September 12, 2010
All quiet on the Columbus front, and in DC for that matter, but things get rolling in the former locale this week, with arguments on tap in several interesting cases.  In State v. Poole, Poole and her boyfriend were charged in a methampetamine operation; after she pled guilty to manufacturing, she testified in his trial [...

Friday Roundup

Posted on September 10, 2010
Let’s go to the video… oops.  Remember all those assemblies in high school, where just before festivities got under way some pimply guy from the AV crew — who everybody laughed at then, but who’s now doing computer graphics for Pixar movies and making more money than you’ll ever dream of — walked out on stage [...

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Driving in my car

Posted on September 09, 2010
This week’s Time magazine features the story of the 9th Circuit’s decision last week denying en banc review of a January ruling that had upheld the police creeping onto the defendant’s driveway in the middle of the night so as to affix a tracking device on his car, a subject I discussed here last Thursday and [...

What’s Up in the 8th

Posted on September 08, 2010
Picture a bloated Marlon Brando wringing his hands while moaning, “the horror… the horror…,” and you have just encapsulated the 8th District’s body of work last week, at least if you work the defense side of the aisle.  Of the 16 criminal cases last week, only two tossed even a crumb in the direction of [...

Case Update

Posted on September 07, 2010
The Columbus Seven had a quiet week going into Memorial Day, and will probably have a quiet one coming out of it, too.  Things pick up after that, with oral arguments starting on September 14.  The court has some interesting stuff on tap, including a bizarre disciplinary proceeding and cases on restitution and whether a [...

Friday Roundup

Posted on September 03, 2010
Not too many people get arrested for being illegally parked, but Jeanne did.  The main reason was that she didn’t bow and scrape to the two police officers who ticketed her car.  Not that they deserved much bowing and scraping; one was a drunk who was later kicked off the force, and the other wasn’t [...

The March of Technology

Posted on September 02, 2010
I have served on this court for nearly three decades. I regret that over that time the courts have gradually but deliberately reduced the protections of the Fourth Amendment to the point at which it scarcely resembles the robust guarantor of our constitutional rights we knew when I joined the bench...

What’s Up in the 8th

Posted on September 01, 2010
In State v. Pizarro, the defendant moves to vacate the guilty plea he entered to a kidnapping charge two years earlier, claiming that police reports and witness statements he’d subsequently obtained show he’s innocent.  The 8th District concludes that doesn’t matter, because he pled guilty...

Case Update

Posted on August 31, 2010
Bad news for Sandra Griffin.  A couple of weeks ago I wrote that her conviction for capital murder had been set aside because, contrary to State v. Baker, there were separate journal entries for the conviction and the sentence, and Baker says they have to be one document...

Scheduling Change

Posted on August 30, 2010
The big news — for anybody who reads this blog regularly, anyway — is that the Ohio Supreme Court overruled State v. Colon.  I’m going to tackle that today.  It’s the next post down.  The Case Update and What’s Up in the 8th will be on Tuesday and Wednesday, resepctively, and on Thursday we’ll take [...

Goodbye to Colon

Posted on August 30, 2010
Two years ago, in State v. Colon, the Ohio Supreme Court held that the failure of an indictment to allege the appropriate mens rea was structural error, requiring reversal, even though the defendant never raised the issue at trial.  After a  tizzy fit by prosecutors throughout the state, the court in State v...

Friday Roundup

Posted on August 27, 2010
I had four criminal pretrials and a hearing yesterday.  That’s not my normal workload; on Wednesday I had nothing in court, which allowed me to get a brief done.  That’s how I like to work things:  if I have to go over to the court, I’d just as soon waste my time on five cases [...

Supreme Court Preview – 2010

Posted on August 26, 2010
The Supreme Court has accepted 38 cases so far for next term, about half of the usual number of cases it will decide.  Some of those won’t make the cut. Last year, for example, much of the pre-term buzz was centered on Briscoe v. Virginia, which was to further explore the ramifications of the Court’s [...

Ruminations…

Posted on August 25, 2010
… on allied offenses, sentencing, and the castle doctrine… I’ve been having a running debate with my buddy John Martin, appellate chief of the county PD”s office, about allied offenses, and the implications of State v. Williams, which held that felonious assault merged with felony murder...

What’s Up in the 8th

Posted on August 24, 2010
The 8th District hands down about a dozen criminal decisions a week, and sometimes there are several which present interesting issues.  And sometimes there aren’t; they just rehash well-settled areas of law.  Even when that happens, though, there’s something to discuss, which is what you pay me the big bucks to do, so here goes...

Case Update

Posted on August 23, 2010
Here’s an interesting twist to my post last week about standards of review:  what about a writ of habeas corpus to an appeals court challenging a trial court’s setting of bond?  That arose last week in Ahmad v. Plummer, where Ahmad had filed a habeas corpus petition with the 1st District arguing that his bond [...

Friday Roundup

Posted on August 20, 2010
Bullshit lawsuit of the week.  You go to retrieve your father’s car, which is in a parking garage.  When you get in, the car blows up, causing you serious injuries.  Turns out it blew up because your half-brother planted a pipe bomb in it, intending to kill your father so he could inherit about $300,000...

Standards of review

Posted on August 19, 2010
There are several appellate courts — the 6th Circuit and Ohio’s 9th District, among them — which require you,  for each assignment of error in your brief, to set forth the applicable standard of review the court is to employ.  That was a good idea, it dawned on me in the midst of an oral argument [...

Another foray into the thicket

Posted on August 18, 2010
You have a client who was convicted of rape in 2002.  The court conducted a hearing and concluded your client wasn’t a sexual predator, and sentenced him to four years in prison.  By operation of law at the time, he became a “sexually oriented offender,” with the requirement that, once he gets out of prison, he [...

What’s Up in the 8th

Posted on August 17, 2010
It’s not over ’til it’s over, says the State in a search case, and the 8th agrees.  In the meantime, the district’s cases over  the past two weeks provide a rare reversal of a denial of a motion to vacate a guilty plea, give valuable lessons about what to do after a car accident, and [...

Case Update – They’re Baaack

Posted on August 16, 2010
Well, I am, from a week-long hiatus.  Not so much the Columbus Seven; the only news on that front is the scheduling of oral argument in State v. Hodge, the case that presents the question of whether judicial fact-finding for consecutive sentences should be reinstated in light of the US Supreme Court’s decision in Oregon [...

Friday Roundup

Posted on August 06, 2010
Block that metaphor!  While fan rowdiness in America hasn’t reached the levels of European soccer hooliganism, there’s cause for concern that things are getting out of hand.  The Cincinnati Bengals’ recent announcement that they were establishing a “family friendly zone” at their ballpark, where fans could presumably bring their children without fear of having them [...

Baker: The gift that keeps on giving

Posted on August 05, 2010
Hell Hath No Fury, Chapter 214:  Back in 1989, James Steuer smacked around his girlfriend, Sandra Griffin.  She set him up to be killed, and was convicted of aggravated murder and sentenced to life with parole possible after 30 years.  A couple of years ago, as I discussed back here,  the 9th District came up with a hypertechnical [...

Closing argument

Posted on August 04, 2010
A judge I have great respect for finds out that some lawyers have taken shots at her on the OACDL listserv for imposing time limitations on oral argument.  The next time she sees me, she calls me into chambers and tells me a story.  A very good lawyer was defending a policeman accused of stealing [...

What’s Up in the 8th

Posted on August 03, 2010
I get beaten like a rented mule in two cases, that’s what’s up.  My week was worse than Corinne Whiteaker’s, slightly better than Ed Pawloski’s, and infinitely better than Elvester Jackson’s. Jackson was part of arguably the most underpriced drug transaction in history:  he served as the middleman of a $100 purchase of crack cocaine, which somehow [...

Case Update

Posted on August 02, 2010
Nothing but appellate decisions to report this week, so we’ll take a little more extended look at them than we usually do.  (And perhaps we’ll have my therapist take a more extended look at my newfound tendency to refer to myself in the first person plural...

Friday Roundup

Posted on July 30, 2010
Swing to the right?  Adam Liptak of the New York Times had a lengthy piece in last Sunday’s edition, arguing that the Supreme Court under Chief Justice Roberts was the “most conservative in decades.”  That was based on coded databases of SCOTUS decisions, one going back to 1953 and the other to 1937, which essentially [...

Another look at the Biggers factors

Posted on July 29, 2010
Statistics show that mistaken eyewitness identification is responsible for about 50% of wrongful convictions.  George Howell almost certainly doesn’t fall into the latter category.  Nonetheless,  the 8th District’s affirmance last week of his conviction and 34-year sentence for a convenient store robbery is vaguely disquieting in its treatment of identification issues...

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