Ohio

Allied and lesser offenses

Posted on July 14, 2009
Last week, the Ohio Supreme Court took another look at the question of when offenses should be merged and when judges should charge on lesser included offenses, and actually clarified both.  If you read that and felt that you’d been transported to a parallel universe in which Ohio law actually makes sense, well… The first case, State [...

Case Update

Posted on July 13, 2009
Slight variation from the customary format.  The USSC is closed for the summer, and while there were a couple of decisions from the Ohio Supreme Court on allied offenses, they merit a separate post.  Plus, the 8th District didn’t hand down anything earthshaking last week...

Anders Briefs

Posted on July 10, 2009
Imagine a defense lawyer getting up in opening statement at a trial and telling the jury: Ladies and gentlemen, after carefully reviewing all the evidence in this case, I’ve concluded that my client has no meritorious defenses.  There are a couple of arguments I possibly could make, but they’d be frivolous...

A new look at child sex cases

Posted on July 09, 2009
It used to be that there was nothing more difficult to defend than an allegation that the defendant had sexually abused a child.  I don’t know whether that’s changing, but in the past two weeks a jury verdict, a trial court’s decision, and three appellate opinions have certainly bucked that trend...

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Yes, Virginia…

Posted on July 08, 2009
…there is a speedy trial statute, and like Christmas, a reversal for violation of it comes but once a year.  Or so it seems.  Well, last week was the time of the season up here by the lake.  In State v. Byrd, the 8th District addressed a plethora of speedy trial issue, among them… The defendant’s [...

What’s up in the 8th

Posted on July 07, 2009
 The court decided to make trial judges’ jobs easier this week, telling them what they need to do in order to impose restitution, charge a jury on a lesser offense, or decide whether to accept a plea.  Plus, a big reversal on speedy trial, which we’ll talk about tomorrow, and a reversal on a child sex case, which [...

Case Update

Posted on July 06, 2009
The US Supreme Court finished off its term with the big affirmative action decision in Ricci v. Stefano.  In addition to its legal impact, the decision could have political consequences as well:  it overruled a 2nd District decision in which Supreme Court nominee Sonia Sotomayor had participated...

The viability of Melendez-Diaz

Posted on July 02, 2009
Last week, I discussed the Supreme Court’s ruling in Melendez-Diaz v. Massachusetts, in which the Court held that reports of laboratory tests were “testimonial” under Crawford v. Washington, and could not be submitted at trial without the live testimony of the person who conducted the test...

Pushing the envelope

Posted on July 01, 2009
So I’m at the market the other day, and I run into one of my buddies from the PD’s office.  “What’s going on?” he asks. “Oh, I’m upset,” I pouted.  “I was thinking of retiring from the practice of law to become a high school principal, but now the Supreme Court comes along and says I [...

What’s up in the 8th

Posted on June 30, 2009
A few months back, I ran into one of the Cuyahoga County court of appeals judges, who told me that they’d almost cited my blog in one of their recent opinions; apparently, they’d sobered up just in time.  It seems the liquor was flowing more frequently down at the old Lakeside Courthouse last week, because [...

Case Update

Posted on June 29, 2009
The US Supreme Court will wrap up its term today, with three decisions still outstanding, the most significant of which is the New Haven firefighters affirmative action case.  Last week’s big decisions were the application of Crawford to scientific reports, which I discussed on Friday, and the school strip search case...

A tale of two cases

Posted on June 26, 2009
Almost two years ago, in State v. Crager (discussed here), the Ohio Supreme Court held that having a DNA analyst testify to tests that were actually performed by someone else didn’t violate the Confrontation Clause, as the US Supreme Court interpreted it in Crawford v...

Truth in advertising

Posted on June 25, 2009
Andy Warhol once remarked that, in the future, everyone will be famous for 15 minutes.  My own take is that in the future, everyone will have their own blog.  Or at least every lawyer.  When I started this blog over three years ago, there weren’t more than a few others in Ohio; now there are [...

The appearance of fairness

Posted on June 24, 2009
Some judges allow jurors to ask witnesses questions at trial, a practice that was upheld by the Supreme Court in 2003 in State v. Fisher.   A lot of lawyers don’t like it.  It may have saved Tom Siller 30 years, as last week the 8th District, in State v...

What’s Up in the 8th

Posted on June 23, 2009
Inventive police work, a new legal avenue for women seeking child support arrearages, a Byzantine PRC case, and how far a trial court has to go in explaning a defendant’s rights at a plea… All that and more from the 8th, despite a week which saw only 12 decisions, about half the normal output...

Case Update

Posted on June 22, 2009
Forensic science marches to the fore this week.  In DC, the Supreme Court decides 5-4 in District Attorney v. Osborne that there is no constitutional right to DNA testing after conviction; allowing such testing is up to the state legislatures.  Down in Columbus, the Supreme Court accepts review of a notorious Akron murder case in which the [...

Friday Roundup

Posted on June 19, 2009
Imitation is the sincerest form of flattery.  Last year I did a post on judicial writing, leading it off with the opening quote from Chief Justice Roberts dissent from the denial of certioari: North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift...

Good judges

Posted on June 18, 2009
My buddy Paul has a simple definition of a good judge:  one who won’t “jam him up.”  That’s an understandable concern.  Paul and I are both solo practitioners, and that can be rough.  If there’s something that needs to be done, we need to do it...

Another go-around on PRC

Posted on June 17, 2009
A considerable portion of the Ohio Supreme Court’s time over the past few years has been devoted to cleaning up what happens when trial judge’s don’t properly impose post-release controls.  The legislature got into the act, too, passing statutes which purported to remedy the problem...

What’s Up in the 8th

Posted on June 16, 2009
The court takes a look at four search cases, including an attempt by an (ex-)judge to create a new cause of action.  That, and the usual spate of cases involving screwed-up pleas or sentencings… Rule 11 specifies that a defendant has to be advised of certain constitutional rights at the time of his plea...

Case Update

Posted on June 15, 2009
Other than the judicial campaign contribution case I discussed on Friday, the big news out of DC was something the Supreme Court didn’t do:  it refused to hear the appeal from the Chrysler deal.  The Court’s got two weeks left, although if you want to get a jump on the eventual analyses, you can take [...

Follow the Money

Posted on June 12, 2009
I don’t know what grades Don Blankenship got in high school civics, but he sure understands the electoral process pretty well.  After a West Virginia jury hit up his coal company with a $50 million verdict, he set his sights on the upcoming elections for the state’s supreme court, knowing that the case would wind [...

Too clever by half

Posted on June 11, 2009
Some lawyers like to talk to jurors after a trial.  I’m one of them; I figure there’s always something I can learn.  Sometimes it’s not something I necessarily wanted to find out… A few years back, for example, I had a client charged with felony telephone harassment...

Taking out the murder weapon

Posted on June 10, 2009
The State’s murder case against David Allen was iffy.  His girlfriend was found shot dead in her apartment a couple of weeks after they’d had a fight, and she’d earlier confided in a friend that she was afraid of him.  A witness claimed to have seen him run into an apartment building right after the victim [...

What’s Up in the 8th

Posted on June 09, 2009
You might not be able to tell what’s coming, but you do know what you’ve left behind.  And you should know what’s real and what’s not.  Those, and other moral lessons, in a week in which a reversal for a Colon error provides the sole solace for criminal defendants… Well, that’s not quite accurate; in [...

Case Update

Posted on June 08, 2009
Slight change in the Case Update this week.  It seems that Lexis isn’t getting the cases as quickly as it used to, and there’s only about thirty decisions from the courts of appeals.  I’ll cover them next week, and stick to Supreme Court stuff this week...

Friday Roundup

Posted on June 05, 2009
Should Scott Roeder be waterboarded?  A poster over on Balkinization poses some interesting questions, based on the premise — a correct one, I believe — that Scott Roeder’s killing this past week of abortion doctor George Tiller was an act of terrorism...

Empathetic judges and elected judges

Posted on June 04, 2009
Just got done trying my case, to a new judge who’d  just been elected this past November.  I’ve known him casually for a long time, and he’s a good guy, but he’s a former prosecutor, so I wasn’t quite sure what to expect...

With a little help from my friends

Posted on June 03, 2009
I’ve got a trial this week, so time is short.  Fortunately, a couple of members of my vast legion of faithful readers have provided me with the fodder for a quick post on what’s necessary to get beyond a motion to dismiss for failure to state a claim, and what the State has to show [...

Prophylactics

Posted on June 02, 2009
‘Tis the season for overruling decisions, apparently.  Just a month ago Justice Scalia provided the fifth vote in Arizona v. Gant (discussed here), which essentially overruled the ”bright-line” rule established in Belton v. US as to when police could search a car incident to the arrest of an occupant...

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