Ohio

Friday Roundup

Posted on February 18, 2011
Catching up.  Back in 2004, the car in which Luis Melendez-Diaz was riding was stopped by the Boston cops.  Melendez-Diaz, the driver, and another passenger were then provided a police escort to the nearest stationhouse, and during the ride, officers noticed the three fidgeting in the back seat...

Abuse of discretion and admission of evidence

Posted on February 17, 2011
There wasn’t much question that Carl Morris was a boor:  he kicked the dog when his wife refused to have sex with him, and propositioned his adult step-daughter a few months after she’d gotten married.  The question was whether that evidence should have been admitted in his trial for raping his other stepdaughter when she [...

Pleas and allied offenses

Posted on February 16, 2011
I talked yesterday about the general futility of trying to vacate a guilty plea, or, more accurately, appealing the denial of such a motion.  I’ve had trial judges grant them, but if the motion’s denied and you have to go up to the court of appeals, the deferential — some would call it obsequious — [...

What’s Up in the 8th

Posted on February 15, 2011
The Neighbor from Hell re-emerges, this time as a winner, motions to withdraw pleas get a workout, and allied offenses don’t but should.  Let’s take a look… There is arguably no emptier phrase in the law than that motions to withdraw a plea should be “liberally granted...

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Case Update

Posted on February 14, 2011
 The big news out of Columbus was that “the Court granted motions to set execution dates in seven — count’em, seven — cases.”  Okay, the part between the emdashes is mine, but you get the point.  Where they’re going to get the drug to do it is another matter:  the manufacturer of the key drug, [...

The post-Rance era

Posted on February 11, 2011
Your client is caught in a simple buy/bust operation:  he sold twenty bucks of crack to an undercover agent.  Three years ago, this could have netted him a conviction on three separate charges:  sale of drugs, preparation for sale, and possession.  Three months ago it would have resulted in two:  sale and possession...

A red Herring

Posted on February 10, 2011
A month ago, I discussed a case pending before the Ohio Supreme Court, in which it had accepted jurisdiction on a proposition of law that essentially argued for a “good faith” exception to the 4th Amendment for warrantless searches:  the exclusionary rule wouldn’t be applied unless the police conduct was “the result of deliberate, reckless, [...

Strategy and Tactics

Posted on February 09, 2011
Ineffective assistance of counsel claims get a pretty good workout in appeals, but they’re rarely successful.  Oh, sure, every now and then there’ll be a major screwup, like failing to file a motion to suppress that would obviously be successful...

What’s up in the 8th

Posted on February 08, 2011
Last year, I started keeping track of the reversal rate in criminal cases in the 8th.  That got to be more of a bother than it was worth rather quickly; I quit doing it after about four months.  The stats I had at that point showed that the State won about 85% of all cases, [...

Case Update

Posted on February 07, 2011
The pickings from the Ohio Supreme Court are so paltry – the big announcement this week:  “The Court issued nine merit decisions without opinions, 14 motion and procedural rulings, agreed to hear six cases, and declined to hear 86 cases” — that I’ve been compelled to scout the oral argument calendar for something to write about here...

The times, they are a’changin’

Posted on February 04, 2011
I gave my annual Criminal Law Update seminar for the Cuyahoga County Criminal Defense Lawyers Association a couple weeks back, and it was, as usual, well-received:  the laser light show was a big hit, and most participants found helpful my use of sock puppets in explaining Ohio’s allied offense jurisprudence...

Closing the courtroom

Posted on February 03, 2011
It ain’t easy being a judge.  Say you’ve got a high-profile murder case involving a shooting between rival gangs.  The police have finally located a key witness, but he’s scared to death to come in and testify, especially in a courtroom containing the defendant’s gang members...

Baker = Fischer?

Posted on February 02, 2011
Last Friday I wrote about the Ohio Supreme Court’s decision in State ex rel. Cordray v. Burge, in which the court vacated a judgment of acquittal granted 15 years after the verdict.  The process which resulted in that acquittal began when the defendants’ attorneys noted that the journal entry didn’t comply with the Supreme Court’s [...

What’s up in the 8th

Posted on February 01, 2011
Good news for my mother and her cell phone, bad news for Daniel Clark and his chances of getting that free car wash.  The court seems to be hitting its stride on allied offenses in the wake of State v. Johnson.  Of the 25 criminal cases handed down by the 8th last week, there was but [...

Case Update

Posted on January 31, 2011
The only case out of Columbus last week was State ex rel. DeWine v. Burge, which I talked about on Friday.  I even went so far as to check out the court’s oral argument calendar into March, and all I can say is boooorrrrrinngggg.  The US Supreme Court’s is pretty much out of session, too; [...

Return to Salem

Posted on January 28, 2011
Some of the names are familiar.  There was the Wee Care Nursery School case, where Margaret Kelly Michaels was charged with 299 counts in the sexual assault of 33 children; her conviction and 47-year prison sentence was thrown out based on the suggestive interview methods used by the police with the children , as well as [...

Coming to a court near you

Posted on January 27, 2011
Although the Ohio Supreme Court hasn’t come down with any decisions since the flurry of big ones at the end of the year, it’s back in session for oral arguments, and I thought I’d take a day to look at some of them. One case to bet the ranch on the outcome is State v...

A fundamental right

Posted on January 26, 2011
Two years ago, in District of Columbia v. Heller, the Supreme Court held that the 2nd Amendment guaranteed an individual, rather than collective, right to bear arms.  Last year, in McDonald v. City of Chicago, the court applied the 2nd Amendment to the states...

What’s Up in the 8th

Posted on January 25, 2011
The Ohio Supreme Court handed down some momentous decisions in the last few weeks of 2010, perhaps none more so than State v. Johnson, which overruled State v. Rance and announced a new method of engaging in allied offense analysis.  Or perhaps an old one… The court struggles with it in one case, and in [...

Case Update

Posted on January 24, 2011
 No big news out of DC.  The Supreme Court did engage in its favorite contact sport — beating up on the 9th Circuit — unanimously reversing the latter court’s grant of habeas in two cases, Harrington v. Richter and Premo v. Moore.  The former decision holds that a state court’s summary disposition of a case [...

Friday Roundup

Posted on January 21, 2011
Our tax dollars at work.  More accurately, Florida taxpayer’s dollars.  And they’re up in arms over the First District Court of Appeals new courthouse in Tallahassee, which was originally budgeted for $22 million and came in at $48.8 million...

Second thoughts on second chances

Posted on January 20, 2011
On Monday’s Case Update I briefly mentioned a 12th District case, State v. Gross, which had affirmed the denial of an application to expunge an arrest record.  I’d thought of doing a little bit more on the decision, maybe a couple paragraphs at the end of the post, but got pressed for time...

Creating an emergency

Posted on January 19, 2011
Just a normal day at the projects for the Lexington, Ky. police, conducting drug buy/busts.  One of the dealers smelled something fishy, though, and took off running after selling some crack to an informant.  The police followed him into the apartment building, lost sight of him, but then heard a door slam at the end [...

What’s Up in the 8th

Posted on January 18, 2011
I practice in Cleveland, and every Tuesday here I look at the decisions of the Cuyahoga County Court of Appeals.  If I lived in Athens, I wouldn’t be able to do “What’s Up in the 4th” every week.  Since the beginning of the year, the 4th District has issued four decisions; last week alone the [...

Case Update

Posted on January 17, 2011
The US Supreme Court gets back in session with several oral arguments last week, including one in a major search case we’ll talk about on Wednesday.  Hint:  it may be better if you not only don’t Bogart that joint, but don’t flush it when The Man comes a’knocking...

Friday Roundup

Posted on January 14, 2011
The Next Big Thing.  I ran into John Martin, the diminutive head of the county PD’s appellate division, the other day, and he let me in on the new Big Idea.  Since the Supreme Court’s finally tosses Rance, the likelihood is that the determination of whether two offenses are allied is much more likely to [...

Venting

Posted on January 13, 2011
Ever have one of those days when you would have been better off if somebody had stabbed you in the head during breakfast?  Jim, one of the lawyers in my office, came to me a couple months ago and asked me to help him with a suppression issue.  His client, who we’ll call Jack, had gotten [...

Taking another crack at the exclusionary rule

Posted on January 12, 2011
Back in November, I mentioned the 8th District’s decision in State v. Mansaray, in which US Marshalls, in executing an arrest warrant for somebody else, entered Mansaray’s house and observed drugs in plain view.  Mansaray’s conviction went by the boards when the 8th threw out the search, holding that an arrest warrant doesn’t give the [...

What’s Up in the 8th

Posted on January 11, 2011
The court takes a breather after its holiday output, handing down only eight decisions, two of them pro se petitions for sundry relief in criminal cases.  The latter raise no interesting legal issues, other than that such petitions are about the only ones left where the rules of pleading are enforced with ruthless vigor...

Case Update

Posted on January 10, 2011
The US Supreme Court gets back in session next week, and its Ohio counterpart took a respite from the rush of decisions in the last two weeks of the year.  One we didn’t mention last week was the “other” Johnson case, State v. Johnson, which involved Johnson’s conviction for having a weapon under disability based on [...

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