Ohio

What’s Up in the 8th

Posted on January 07, 2011
Criminal appellate work isn’t for those with self-esteem issues.  It’s a lot tougher on your ego than trial work.  Although stats vary, most show that defendants win at trial around 40% of the time; the rate for successful appeals is closer to 10%...

Narrowing Bezak

Posted on January 06, 2011
This was London Fischer’s argument:  When he was sentenced back in 2002 to 14 years in prison for various and sundry crimes, the judge hadn’t properly advised him of post-release controls.  The Ohio Supreme Court had ruled in a number of cases, most recently State v...

Rance is dead

Posted on January 05, 2011
Six months ago, you could have made a compelling argument that the clarity of Ohio criminal law would be substantially enhanced by overruling three decisions:  State v. Colon, which had held that an indictment which tracked the language of the statute was defective if didn’t specify a mens rea; State v...

Punting the ball

Posted on January 04, 2011
As part of the sentencing reforms in 1996, the State legislature mandated that, before a judge could impose consecutive sentences, he had to make certain findings of fact.  Ten years later, in State v. Foster, the Ohio Supreme Court decided that was a violation of the 6th Amendment...

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While I was away

Posted on January 03, 2011
The holidays are a good time to take off from blogging, since nothing happens with the courts, right?  Well, not so much.  I”ve been doing this for almost five years now (blogiversay coming up May 14, and no, it’s not too early to start thinking about  a gift), and I can’t remember a similar stretch [...

Happy Holidays

Posted on December 22, 2010
Right now, I’m off earning a little extra money over the holidays.  See you back here on January 3.

Friday Roundup

Posted on December 17, 2010
Story of the week.  Told to me the other day by one judge, about another former Common Pleas Judge.  The latter, affectionately known to the bench and bar as the original Ohio Legal Blank, was in his first year or two on the bench, and was working the arraignment room...

I’ll be watching you

Posted on December 16, 2010
Lost in all the hullabaloo over the Supreme Court’s acceptance of certiorari last week in the Wal-Mart class action suit was the 8th District’s decision in Lycan v. City of Cleveland, in which the 8th District reverses the trial court’s denial of class certification in a lawsuit against the city’s traffic cameras...

Question first, warn later

Posted on December 15, 2010
On September 22, 1993, Archie Dixon and Tim Hoffner beat Christopher Hammer, stole his wallet and car, then drove him to a remote area and buried him alive.  Dixon sold the car, which was a mistake:  the police located it and traced the transaction back to him...

What’s Up in the 8th

Posted on December 14, 2010
When is a school a school?  When is a citizen informant not anonymous?  When does an offense involve a minor?  These and other metaphysical inquiries are answered by the 8th District’s decisions last week. Unhappy news for M.R.  Back in 2007, he took some pictures of his three-year old child “in a silly pose after a bath,” [...

Case Update

Posted on December 13, 2010
Nothing from SCOTUS this week,  and nothing down in Columbus, either, not even the weekly beatdown of miscreant attorneys in disciplinary cases.  In fact, the news there was political, not legal:  outgoing Gov. Strickland appointed his running mate, Yvette McGee Brown, to the position on the Supreme Court being vacated by present Justice Maureen O’Connor, who [...

Friday Update

Posted on December 10, 2010
Expanding the blog roll… or not.  Andy Warhol is said to have remarked that, in the future, everybody will be famous for fifteen minutes.  (A decent argument could be mustered that the remark represented Andy’s fifteen minutes.  Yeah, I know, there were the soup cans and the Marilyn Monroe picture, but still…)  Nowadays, it seems [...

Mea Culpa

Posted on December 09, 2010
Last week I discussed a series of articles the Plain Dealer recently ran, accusing County Prosecutor Bill Mason of prosecuting hundreds of cases without any solid evidence to back them up.  I explained why I didn’t think the article found the mark...

Recanting witnesses and new trial motions

Posted on December 08, 2010
The client’s family comes into you, with money for you of course, but more importantly — for them at least — an affidavit from another inmate stating that he was the person who actually committed the murder for which the client is serving a 20 year sentence...

What’s Up in the 8th

Posted on December 07, 2010
I’ve often thought that Milton Bradley should make a board game out of Ohio’s sentencing scheme.  “Judge screws up PRC — advance three spaces.”  “Judge gives disproportionate sentence — appellate panel laughs and tells you to go away...

Case Update

Posted on December 06, 2010
Only one decision out of DC, Los Angeles County v. Humphries, which dealt with municipal liability in 1983 actions.  You can’t hold a city liable for a wayward police officer’s acts in civil rights cases under respondeat superior; you have to show that the acts were the result of a city policy...

Friday Roundup

Posted on December 03, 2010
We’ll call this the With a Little Help From My Friends Edition: If at first you don’t succeed.  The Ohio Supreme Court finally came down with some decisions this past week; quite a few of them, as a matter of fact, so I’ll have plenty to write about in the Case Update on Monday...

Crawford and coroner’s reports

Posted on December 02, 2010
On Monday, I talked about State v. Conley, a 10th District case which mentioned in passing that the coroner who had peformed the autopsy wasn’t available by the time of trial, and so another assistant testified in his place.  Neither the court nor the parties raised the issue of whether this presented a Confrontation Clause issue [...

A long and winding road

Posted on November 24, 2010
On August 28, 2004, Evelyn Rivera and her husband,  Adam Pabon, saw a man beating a woman, whom they recognized as a neighbor, outside their house.  Rivera called 911, and the assailant took off when the police arrived.  The victim told Pabon that the guy who beat her was her former boyfriend, Luis Colon; she told [...

8th District Roundup

Posted on November 23, 2010
Rule No. 1 for trial attorneys is:  Make sure to preserve your record.  Failure to object normally dooms an appeal, limiting the reviewing court to the extremely vigorous “plain error” standard.  By luck or design, though, the trial attorney’s failure to object in State v...

Case Update

Posted on November 22, 2010
The US Supreme Court comes down with its first real decision of the year in Abbott v. US.  (A week earlier, in Wilson v. Corcoran, the Court had issued a brief per curiam opinion reminding federal courts that habeas relief was available only for violations of federal law, not for improper state court interpretations of state [...

Friday Roundup

Posted on November 19, 2010
Talkin’ about a revolution.   It’s been 35 years since the Justice Center opened here in Cleveland, housing both the county’s common pleas court and the city’s municipal courts.  I’ve chronicled its failings before, like in this post from earlier this year...

The CSI Effect

Posted on November 18, 2010
We tell jurors that they can’t do “independent” research:  look up stuff on the Internet, go the scene of the crime, read newspaper accounts about what happened.  Well, if you’ve got jurors who recognize this guy’s picture, or have the Who’s “Won’t Get Fooled Again” as the ringtone on their cellphones, they might need some special instructions, [...

Harmless error

Posted on November 17, 2010
Here are the facts in last week’s 8th District decision in Middleburg Heights v. Bunt:  Bunt and his wife met Kellie Greene, the mother of K.M., a 14-year-old boy, as a result of K.M. and Bunt’s stepson being in the same bowling league.  Greene later confided in the Bunts that K...

The CSI Effect

Posted on November 17, 2010
We tell jurors that they can’t do “independent” research:  look up stuff on the Internet, go the scene of the crime, read newspaper accounts about what happened.  Well, if you’ve got jurors who recognize this guy’s picture, or have the Who’s “Won’t Get Fooled Again” as the ringtone on their cellphones, they might need some special instructions, [...

8th District Roundup

Posted on November 16, 2010
Sometimes, I think the 8th District’s decisions give a better glimpse of life in Cleveland than can be found in a travel guide.  And lest you think that Cleveland doesn’t merit mention in a travel guide, Frommer’s doesn’t share that view; it breathlessly informs us that “this underrated city’s abundance of locally owned restaurants is [...

Case Update

Posted on November 15, 2010
The big oral argument this past week in DC was AT&T v. Concepcion, which involves the question of whether a California court ruling that a provision in AT&T’s cell phone contract was unconscionable because it barred class actions violated Federal arbitration law...

Friday Roundup

Posted on November 12, 2010
Keeping up with the Joneses.  I mentioned on Monday that in the past five years Ohio’s executed more people than all other non-Southern states combined, but it looks like other states might be catching up.  Like California, for instance, which has no fewer than 700 people languishing on death row, including seven who have exhausted [...

The Castle Doctrine revisited

Posted on November 11, 2010
Two years ago, the legislature passed the New, Improved version of the Castle Doctrine.  Unlike the old Economy Size Castle Doctrine, which merely held that the duty to retreat before claiming self-defense did not apply to a person in his own home, this version actually shifted the burden of proof from the defendant to the [...

Child porn sentencing

Posted on November 10, 2010
One of the things I did when I was on vacation was reread Tom Wolfe’s Bonfire of the Vanities.  It’s a great book, and one of my favorite parts is where the main character, a bond trader, tries to explain to his six-year old daughter what he does for a living...

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