Tuesday, November 25, 2014

Proposed Ohio bill would require BB guns, air guns to be brightly colored

According to Cleveland.com, Ohio State Rep. Alicia Reese (D-Cincinnati) will be introducing a bill to require certain toy and imitation firearms sold in Ohio to be "brightly colored or have prominent fluorescent strips." This would apply to all BB guns, air rifles and airsoft guns. The proposed legislation is being offered in response to two shooting deaths in Ohio this year where police officers shot individuals who were holding these types of toy guns, mistakenly assuming that they were brandishing weapons.

The first case involved 22-year-old John Crawford who was shot by Beavercreek police while holding an air rifle in a Walmart store in August. The Cincinnati Enquirer published a story with the details of the case in September. Crawford later died from his injuries. The second case involved the fatal shooting of 12-year-old Tamir Rice by Cleveland police on Saturday. Rice had pulled an airsoft gun from his waistband outside a recreation center and a Cleveland police officer shot him. The gun's orange tip indicating that it was a toy had been removed. According to an article on Cleveland.com, Cleveland police confirmed that Rice had not threatened police or anyone else with the gun. Another article from the site describes the shooting and investigation in greater detail, here.

A few other states already have laws that place limitations on the sale of toy guns. According to the Cleveland.com article first referenced above, California has recently passed a bill requiring that all toy and replica guns be brightly colored. Arkansas also has a law prohibiting the sale of certain types of imitation firearms, and Atlantic City New Jersey's city council has instituted a ban on the sale of "realistic toy guns." While federal law requires that toy and imitation firearms be sold with orange tips in the barrel, these can be easily removed or painted after purchase, and Ohio does not currently have any additional restrictions on these type of firearms to make them more identifiable.

The legislation will be introduced in the coming weeks and then reintroduced in the 131st General Assembly in January.The president of Cleveland's police union expressed concerns about the proposed legislation, claiming that criminals may try to mask real weapons by painting them to look like toys. He asserted that the police would still treat even the brightly colored guns as a serious threat.

Monday, November 24, 2014

Rape convictions overturned based on improperly admitted evidence

The Supreme Court of Ohio ruled last week that when evidence of other bad acts is improperly admitted at trial an appeals court must evaluate both the impact that the evidence had on the outcome of the case, and the strength of the remaining evidence in determining whether to uphold a conviction. The case before the court involved defendant Carl Morris who was convicted on two counts of raping his minor stepdaughter in 2009. At trial, in addition to testimony by the stepdaughter (S.K.), the court admitted testimony from her sister that Morris had made advances on the sister as well, and testimony from S.K.'s mother that Morris would kick the family dog if the mother refused his sexual advances.

Morris was convicted and appealed to the Ninth District Court of Appeals, which found that this evidence was not properly admitted under Ohio Evid. R. 404(B) as it could not be admitted to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." The state appealed to the Ohio Supreme Court, which overturned the decision of the Ninth District, holding that the appellate court should have applied an abuse of discretion standard instead of reviewing the evidence de novo. On remand the Ninth District again reversed Morris' conviction, finding that the trial court abused its discretion in admitting the evidence and that the court could only find that the evidence admitted was harmless if it could do so beyond a reasonable doubt. The state appealed again to the Ohio Supreme Court.

The Court examined the language of Ohio Crim. R. 52(A) (the harmless error rule) and found that when evidence is improperly admitted, a court must determine whether the evidence impacted a substantial right of the defendant. The Court held, "And so the real issue when Evid.R. 404(B) evidence is improperly admitted at trial is whether a defendant has suffered any prejudice as a result. If  not, the error may be disregarded as harmless error." Justice Lanzinger, writing for the majority, laid out a three factor analysis for cases where this type of evidence is improperly admitted:

"First, there must be prejudice to the defendant as a result of the admission of the improper evidence at trial... Second, an appellate court must declare a belief that the error was not harmless beyond a reasonable doubt... Third, in determining whether a new trial is required or the error is harmless beyond a reasonable doubt, the court must excise the improper evidence from the record and then look to the remaining evidence."

The Court deferred to the opinion of the Ninth District, which found that the erroneously admitted evidence was inflammatory and the remainder of the case was weak, and affirmed the decision to vacate the conviction and order a new trial.

Justices O'Connor, Pfeifer and O'Neill concurred with the majority. Justice Kennedy penned a dissent, joined by Justice French. Justice O'Donnell also presented a dissenting opinion in the case.

For more information about the case see this article from Court News Ohio and the Ohio Supreme Court docket for the case.

Updates: Planned Parenthood to stay open and H.B. 663 passes House

Some updates from previous posts for you on this Monday morning:

Planned Parenthood
The Cincinnati Enquirer reports that the Ohio Department of Health has granted a variance to Planned Parenthood of Southwest Ohio, allowing their Mt. Auburn clinic to remain open. As we discussed on November 14, Planned Parenthood does not have a transfer agreement with a local hospital to transfer patients in the event of an emergency situation. While the clinic formerly had an agreement with U.C. Medical Center, a law passed in 2013 outlawed transfer agreements with public hospitals.

Planned Parenthood was unable to secure a new agreement with a private hospital, largely because most local private hospitals are religiously affiliated. In lieu of this agreement, Planned Parenthood has partnered with four doctors who have agreed to see patients at local hospitals should an emergency arise. The law permits the ODH to grant an exception to the transfer agreement requirement if alternative arrangements such as this are made. Planned Parenthood had requested this variance, but when ODH failed to act and threatened to revoke their license, they filed suit in federal district court in Ohio. ODH subsequently granted the variance, and Planned Parenthood has dismissed their suit.

H.B. 663
The Columbus Dispatch reports that Ohio House Bill 663, the bill that would grant anonymity to manufacturers of execution drugs and other individuals involved in Ohio's execution process, passed the Ohio House on Thursday. We discussed this bill in detail last week. Opponents of the bill cite concerns with its constitutionality, particularly the limits it imposes on courts, as even a court order cannot override the anonymity the bill confers. The bill will now be taken up in the Ohio Senate.