Monday, February 27, 2006

Ohio felony sentencing statutes

Portions of Ohio’s felony sentencing statutes were found to violate the Sixth Amendment in the manner set forth by Apprendi v New Jersey (2000), and unconstitutional by the Ohio Supreme Court today, with a “severance remedy” similar to that adopted in United States v. Booker(2005) applied.
[ State v. Foster, February 27, 2006]

“Ohio’s felony sentencing structure may be severely wounded,” the Court said, “but it is not fatally unsound. Our holdings are limited to areas where the statutes are Blakely-deficient…(and) after examining Ohio’s felony sentencing statutes, we determine that severance of the Blakely-offending portions (appropriate).

The Court’s application of its “Booker remedy” begins on Page 36 of the 46-page decision.

The case is briefed on our website.

Apprendi v. New Jersey, 530 U.S. 466 (2000)
Blakely v. Washington, 542 U.S. 296 (2004)
U.S. v. Booker/Fanfan, 543 U.S. 420 (2005)

· Ohio Sentencing Commission

Tuesday, February 21, 2006

CSI Influence on Criminals

Police and prosecutors are complaining about the effects of the television show Crime Scene Investigation. From it, suspects have learned to destroy evidence via bleaching away DNA; scrubbing away finger prints, even those on corpses; and burning crime scenes and bodies. For example, a California man accused of rape and murder cleaned and bleached the crime scene, vacuumed carpets, and removed the victims' clothing and bedding. Prosecutors complain that juries still expect hard evidence, even from a cleansed crime scene.

The National Law Journal, February 13, 2006, p. 4.
Available at the Cincinnati Law Library

Thursday, February 16, 2006

Ohio DNA database issue

The 9th. District Court of Appeals in Ohio, Wednesday, held “DNA taken from people convicted before May 2005 can’t be used against them under Ohio law. (See article)

The Ohio Attorney General’s Office was quick to respond to the decision, saying it could have “disastrous” ramifications.

· State v. Consilio, 2006 Ohio 649 (Feb. 15, 2006)
· ORC § 2901.07

Death Penalty

9th. Circuit U.S. District Court Judge Jeremy Fogel ruled Tuesday that California needed to change the way it carried out its method of lethal injections, staying the execution of Michael Morales.
· State v. Morales

Clarence Hill, last Jan. 25th., was granted a stay of execution by the U.S. Supreme Court, questioning the method used by Florida. Arguments in that case are expected to be heard April 26th., with a decision sometime before July. (CNN article)

Wednesday, February 15, 2006

Sex-offender residency concerns

Sex-offender residency issues are in the news again.

Last week the Ohio Attorney General’s Office announced it requested and was granted a motion to assist in defending the constitutionality of Revised Code §2950.031, which prohibits a sex offender from residing within 1,000 feet of a school, and gives authorities the right to evict those violating that mandate. The case is Mikaloff v. Walsh, Case 5:06-CV-96, in the U.S. District Court for Northern Ohio, East. A class-action, Mikaloff’s complaint says Ohio’s statute is unconstitutional as applied to those sentenced prior to July 2003, and represents ex post facto legislation.

Its press release on Feb 6th. also mentioned Attorney General Petro’s participation in a similar District Court case last year, here in Cincinnati, also alleging in part that residency requirements represent punitive legislation. [See Coston v. Petro, 398 F. Supp. 2d 878 (2005)].

Meanwhile, Covington, Kentucky is holding public hearings in advance of a proposed city ordinance which will increase the requirement to 2,000 feet from any school or day care in that city, a measure already being done in several other cities such as Des Moines, Iowa. Other towns and cities have forbidden convicted sex offenders entirely.

The “blogsphere” hasn’t been mute, either. The reader may find posts at Prawfsblawg and Kipesquire of particular interest. Prawfsblawg’s discussion centers in part with Doe v. Miller, an 8th. Circuit decision which also tested the constitutionality of sex offender residency restrictions last year, reversing a district court’s having invalidated Iowa’s registry requirements.

Friday, February 10, 2006

Public Defender class action District Court suit

Constitutional rights of the poor for more than 20 years have been being violated by Hamilton County courts by sending them to jail for not being able to pay minor fines, U.S. District Court Judge Arthur Spiegel found last Tuesday, according to an Enquirer article Wednesday.

The case, a class action suit claiming “systematic failure to provide representation on the issue of defendants’ ability to pay fines and/or costs assessed by Hamilton County Municipal Court, resulting in incarceration despite their inability to pay those fines/costs.” District Court granted summary judgment against the County on the issue of liability, but stayed consideration on a motion for damages until a March 15th. hearing.

Thursday, February 09, 2006

Report on Failure to Disclose Evidence

The Ohio Ass'n of Criminal Defense Lawyers released a report called "Broken Duty" (PDF) that outlines the history of cases dealing with prosecution failure to disclose evidence. The report summarizes cases (15 pages) from 1975 to 2005, including citations to the opinions. there is a short analysis, followed by Ohio Criminal Rule 16 and some relevant cases in full text. The report is dated 2005.

Federal District Court Opinions Free Thru Pacer

Get your district court opinions on Pacer (Public Access to Court Electronic Records) free, thanks to a new report available through the CM/ECF (case management / electronic case filing) system. If your district court is on CM/ECF version 2.4, then opinions that are uploaded into Pacer can be searched for free.

Why is this exciting? District court opinions have been far more difficult to get electronically via the Web than Circuit and US Supreme Court opinions. If you are familiar with Pacer, you do not go to their main Web site and log in, as you might for the US Party Index. Instead, for example, you would go to the court CM/ECF page (here is the District for Southern Ohio) and login using your PACER information. Use the Report page to get "written opinions" and you can run a free search to bring up written opinions. If you run a different search, you'll still be charged for that search (a Docket search, for example) but you won't be charged for viewing the written opinions.

Pacer accounts are free to set up and then you pay as you go.

Public Library Offers Free Ohio Legal Forms

Free Ohio legal forms are available from the Public Library of Cincinnati and Hamilton County through their remote access database services. This new resource includes forms from Thomson-Gale, the company behind Infotrac Onefile, another PLCHC database resource.

The resource is organized by category, ranging from deed forms to powers of attorney (general, health and child care) and even a pet law handbook! The forms are from the US Legal Forms company, an online forms database for all 50 states.

You can access the online site with your PLCHC library card (the RED card!), using the borrower number on the back and your PIN (the last 4 digits of your phone number unless you've changed it). If you use the forms and are not a lawyer, be sure to read the disclaimer that "[a]ll forms in this database are provided without any warranty, express or implied, as to their legal effect and completeness. Forms should be used as a guide and modified to meet the laws in your state. Please use at your own risk." You might still want to consult a lawyer for assistance.

Wednesday, February 08, 2006

Active Military May Get Child Custody Stays

Rep. Ujvagi of Toledo introduced H.B. 503, "to prohibit a juvenile court from making custody determinations or modifications in a case in which one of the parents is called to active military service with any reserve component of the United States armed forces or Ohio militia."

The proposed legislation, introduced February 7, 2006, would amend part of the Domestic Relations - Children title, Ohio Revised Code §§ 3109.04 and 3109.041.

Tuesday, February 07, 2006

WiFi fees & licenses

Wireless communication licenses, slated to start being sold by the Federal Communications Commission on June 29th.—an auction Wall Street analysts say could generate as much as $15 billion—is being projected as raising some $25 billion for the Government between 2007 and 2009, according to a CNN Money article this morning. These are primarily for the major wireless carriers.

Along with maybe the good news, though, ZDNet has posted news that “hidden deep in President Bush’s nearly $2.8 trillion budget is a proposal to raise some $3.6 billion over the next decade by imposing ‘user fees’ on the ‘unlicensed wi-fi spectrum’….
“The most likely scenario for collecting such a tax would be for it to be imposed on equipment using the WiFi spectrum at the time of purchase…. Or they could just force free WiFi hot spots to impose fees and collect them from libraries and coffee shops.”

FCC budget proposal @

Friday, February 03, 2006

Death Penalty Issues

Has the American “death penalty debate” gotten locked up in political stalemate, as asked by a recent Reuters news article? Certainly the Supreme Court’s several stays of execution the past two weeks have had interesting, if not expected effects, even though its eventual decision won’t answer broader death penalty questions.

37 of the 38 states having the death penalty use lethal injection as their method of execution, including Ohio and Indiana. In Kentucky, electrocution remains an option for those sentenced before June 1998.

There are eight executions pending in the month of February, including Glenn Benner here in Ohio on Tuesday. Benner was convicted in 1986 in Summit County for the murder & rape of two women, along with another rape and an assault. His appeal to the U.S. Supreme Court was turned down last March, and according to a Beacon Journal article Benner wasn’t going to ask for clemency.

While the American Bar Association neither supports nor opposes the death penalty, it start its “Death Penalty Moratorium Implementation Project” in 2001, collecting and monitoring material on death penalty issues. As part of that project, a study of Georgia’s handling of death penalty cases recently revealed need for improvement, stating that since the state “ensure fairness & accuracy in every capital case, it should implement a moratorium on executions and death penalty prosecutions” until those issues can be addressed, according to a article earlier this week.