Friday, June 29, 2007

Ohio judicial code task force announced

Ohio Supreme Court Justice Thomas Moyer announced yesterday the appointment of a 17-member panel to be headed by retired appellate judge Thomas Bryant of Findlay, Ohio, to review, revise, and recommend changes and a new Code of Judicial Conduct for judges in Ohio.

Ohio’s present Judicial Code went into effective in 1973; its Rules for the Governance of the Judiciary became effective in 1983. The Rules of Governance were amended in February, but the Judicial Code hasn’t been updated since 1997.

The American Bar Association’s House of Delegates revised their Model Code of Judicial Conduct “to provide clear guidance to judges regarding their professional & personal conduct and to assure the public that effective standards exist to regulate the conduct of judges,” back in February. The review being undertaken by the Ohio task force, here, will be one of the first to consider changes in its judicial code based on the ABA model.

The Supreme Court website has a page set aside for task force news, developments & resources, and will be entertaining public comment in the near future, according to its press release.

Wednesday, June 27, 2007

Southeast Ohio District Court continues lethal injection protocol case

District Court Judge Gregory Frost allowed the inclusion of six more death row inmates to the pending Cooey v. Taft lawsuit challenging the state of Ohio’s lethal injection protocol last Monday.

Nicely summarized on the Ohio Death Penalty Information’s website yesterday (June 26th.), the case’s recent history begins with a three-judge Sixth Circuit Court of Appeals order back in March to dismiss the case because of a statute of limitations violation. A split-vote by the full 6th. Circuit bench on June 13th. denied reconsideration. The Sixth Circuit decisions have been submitted for appeal to the Ohio Supreme Court, with the Sixth Circuit “staying its mandate” for now.

The District Court of Southeast Ohio, though, is proceeding with the case. Judge Frost’s combined order & opinion includes his discussion of the statute of limitation issue along with an explanation of his reasoning to continue the case pending the Supreme Court’s resolution of the matter.

"Wrongful Death Executions?"

Is this opening yet another vestibule in the ongoing “death penalty debate”?

A major provocation of death penalty opponents has always been executing an innocent person for a crime they didn’t commit, but, according to the Death Penalty Information Center, that possibility has already happened at least eight times since the death penalty was reinstituted back in 1976.

One of these, the case of Larry Griffin, is back in the news with this MSNBC report yesterday. Griffin was found guilty of a drive-by shooting in 1981 and executed by the state of Missouri in 1995, but a year-long investigation by the NAACP’s Legal Defense & Education Fund in July 2005 produced evidence that strongly suggested Griffin was, in fact, not guilty, and had been wrongfully executed. That compelled the St. Louis’ prosecutor’s office to re-open the case – and those findings are expected to be complete soon.

A little less than half of the states, along with the federal government and District of Columbia, have some type of “wrongful imprisonment” provision – including Ohio, Texas, Illinois, and Missouri – compensating persons for time spent in prison for crimes they were later found not having committed. A Missouri Corrections Department spokesman in the MSNBC article, however, said he was “unaware of any provision for compensating families of those wrongfully executed.”

Tuesday, June 19, 2007

Sixth Circuit e-mail privacy case

The Sixth Circuit Court of Appeals has ruled that under the Stored Communications Act of 1986, e-mail held by an Internet service provider was “roughly analogous to sealed letters in which the sender maintains an expectation of privacy, and requires law enforcement officials to obtain a warrant based on a showing of probable cause as a prerequisite to securing that e-mail,” upholding a district court’s injunction against the federal government in Warshak v. United States.

Plaintiff Steven Warshak had been under investigation on several allegations in Spring 2005, and the government had managed to obtain an order from a district court magistrate directing acquisition. That order, on May 6, 2005, was shown to have been issued “based on ‘specific & articulable facts showing that there was reasonable grounds to believe that the records or other information sought were relevant and material to an ongoing criminal investigation,” was issued under seal prohibiting the provider from any disclosure, and that “the notification by the government otherwise required under 18 U.S.C. §2703 (b)(1)(B) was to be delayed for ninety days.” On Sept. 12, 2005, an almost identical order to a second provider was obtained.

On May 31, 2006, more than a year afterward, the government contacted the plaintiff and notified him of both orders and their requirements; conceding that it had violated the statute by waiting for over a year without providing notice of the e-mail seizures or seeking extensions of the delayed notification period, appearing to have also violated the magistrate’s decision as well.

District Court’s injunction

(See article)

U.S. Sentencing Commission's "Victims Advisory Group"

The U.S. Sentencing Commission has its notice posted with reference to receiving public comments about its proposed formation of a standing “ victims advisory group” and amending Rule 5.4 of its Rules of Practice & Procedure to include the same.

The Commission “anticipates that the victims advisory group will consist of not more than 9 members, each serving not more than two consecutive 3-year terms, and establishing a charter for the group to govern its activities.”

It also “invites any person or group who has knowledge, expertise, or experience in the area of federal crime victimization to apply to become a member of the advisory group.”

Comments and applications for consideration of group membership should not be received later than July 30, 2007.

Federal Register notice

Friday, June 15, 2007

Sixth Circuit suspect questioning opinion

Forty years ago, the Supreme Court decided Miranda v. Arizona and probably the best-known popular legal concept-- the immortal “right to remain silent” phrase-- was born.

Twenty-five years later, Miranda was enhanced & clarified with the Supreme Court’s holding that once a suspect in custody has asked for a lawyer, his questioning by police has to cease until counsel is present and cannot be resumed unless “the accused has himself initiated further communication, exchanges, or conversations with police.” [Edwards v. Arizona (1981)].

Now, the U.S. Sixth Circuit has added perhaps a new wrinkle in the defendant’s right arena -- that that communication can be, in fact, through a third party.

Exhausting his state court appeal options, Robert Van Hook, found guilty of capital murder and aggravated robbery, filed a habeas appeal in the Sixth District Court for Southern Ohio, which denied his petition. On appeal to the Sixth Circuit in April 2006, reversed and remanded, holding that police had violated Van Hook’s constitutional rights when they had resumed questioning him after having it been indicated by Van Hook’s mother that he wanted to continue with the interview. On petition by the State of Ohio, the Sixth Circuit decided to vacate its earlier decision and hear the case en banc.

In that consideration, on May 24,2007, the Sixth Circuit held that “the Supreme Court did not command in Edwards that a suspect must directly inform police he wants to talk, as opposed to informing them through a third party. The propriety of communication through a through a third party was not before the Court in Edwards, nor has the Court taken up the issue since that decision.”

Citing the Supreme Court in Dickerson v. United States (2000), and siding with sister courts in recent decisions in the 8th., 9th., and 11th. Circuits, the Sixth Circuit said, “No court laying down a general rule can possibly foresee the various circumstances in which counsel will seek to apply it, and the sort of modifications represented by [cases extending & restricting Miranda] are as much a normal part of constitutional law as the original decision.”

Record Mortgage Foreclosures

Articles on MSNBC and are among those echoing the record number of residential home foreclosures being experienced across the country, numbers which are expected to continue to worsen through the end of the year.

“Nearly 16% of borrowers with ‘subprime’ ARM loans,” the USAToday article says, “have missed at least one payment, up from 14% at the end of last year… An estimated 2 million subprime borrowers, many of them low-income and minority, are expected to lose their homes.”

Almost 20% of the homes in foreclosure nationally are attributable to Ohio, Indiana, Kentucky, and Michigan. An article in this morning’s Enquirer relates that Ohio ranked first in home foreclosures in the first quarter of the year with 3.54% of the state’s 1.4 million mortgages, or about 50,000 mortgages in foreclosure, compared to Kentucky’s 7,400. Nationally, of 43.9 million mortgages, 1.28 were in foreclosure for the same period.

Ohio has also seen a sharp decline in the number of mortgage lenders in the state since its “anti-predatory lending” law went into effect in January, according to the Columbus Dispatch yesterday. The USAToday article, above, said there have been more than 80 lenders who have gone out of business since the beginning of the year.

There was a public hearing at the Federal Reserve Board, yesterday, which “focused specifically on how the Board could use its rulemaking authority under the 1994 Home Ownership & Equity Protection Act (HOEPA) to address concerns about abusive mortgage lending practices.” In its press release, the Board said it would be considering lender disclosures and rules prohibiting or restricting lending practices at that hearing, but that they would also “gather information on how they might craft rules to stop such abusive practices, and seek information from state officials regarding their experiences with drafting laws & rules to combat predatory lending efficiently and effectively.”

Thursday, June 14, 2007

Ohio Internet importuning bill

A bill, introduced in the Ohio Senate yesterday, would create mandatory minimum prison terms for persons pleading or found guilty of soliciting minors for sexual purposes over the Internet, regardless of whether that person is aware of the minor’s true age or not, an article in this morning’s Enquirer relates.

Language is also contained making it applicable even though “the other person is a law enforcement officer posing as a person who is less than 13 years of age, and the offender believes that the other person is less than thirteen years of age or is reckless in that regard.”

Wednesday, June 13, 2007

Ohio domestic violence law

An article in yesterday’s Enquirer notes that the constitutionality of Ohio’s domestic violence law is being weighed by the Ohio Supreme Court, with oral arguments having been heard last December 12th.. (Docket)

At issue is whether Ohio’s domestic violence statutes apply to unmarried persons living together, with a number of the state’s appeals courts having different ways. The 12th. District in this particular case had held that the statutes were constitutional, along with a majority of the other districts; but the Second and Third Districts held last year that the statute was “unconstitutional as applied to cohabitants because it recognizes a ‘legal status’ approximating marriage” in violation of the 2004 “marriage amendment” to Ohio’s constitution. (See State v. Ward and State v. McKinley). Alternatively, the Sixth and Eleventh Districts have held that “even though the statute creates a legal status, that status cannot be said to approximate marriage.” (State v. Rodriguez and State v. Jenson)

Thursday, June 07, 2007

Ohio "Public Records Access Counsel"

Commensurate with changes and “upgrades” to Ohio public records law over the past year or so, a bill’s now been introduced in the House that would create “the office of Public Access Counselor in the Court of Claims to receive complaints & issue advisory opinions concerning public records and open meeting laws..”

The public access counselor will be a licensed, practicing attorney, appointed by the chief justice of the Supreme Court for a term of four years, but not engaged in “any profession, business, or practice that may conflict with his/her duties.”

In addition to managing public records complaints and establishing procedures to do so, the office of the public relations counselor would also assist the attorney general in developing & providing public record training programs & seminars, and make recommendations to both the General Assembly and Supreme Court concerning ways to “improve public access to public records and ensure public attendance at public meetings.”

One perhaps more significant provision of this bill is that a person doesn’t have to file a complaint with the newly-formed office before filing a court action pursuant to public records law. Also, the procedures that would be set forth in these news sections would not “constitute an alternative remedy in the ordinary course of the law for purposes of seeking any judicial remedy authorized by the Revised Code or any rule of court.”

HB 9 (2006)
HB 9 post on Dec. 29, 2006 (Here)

HB 141 (2006)
HB 141 post on June 5, 2007

Federal Sentencing Guidelines

Supplementing previous post.

The United States Sentencing Commission’s publication its 2007 “Cocaine and Federal Sentencing Policy” report to Congress late last month, gave a great deal of special attention to comparing and contrasting federal sentencing policies with respect to cocaine offenses to those of the individual states.

The basic framework of statutory minimum penalties applicable to federal drug trafficking laws was set forth in 1986 with the passage of the Anti-Drug Abuse Act. In establishing mandatory minimum penalties respective of cocaine offenses, Congress differentiated between the two principle forms of the drug found on the street – “powder” and “crack”—providing significantly higher punishments for the latter. The overwhelming majority of the states, however – including Kentucky, Indiana, Michigan, West Virginia, and Pennsylvania—do not distinguish between “powder” and “crack” in their basic statutes, according to the Commission’s report. Ohio, at this point does, but currently has a bill in its senate which would remove those distinctions. (See Bill Analysis for detailed information)

Thirteen states, on the other hand—Indiana and Ohio included—have guideline systems with “determinate,” mandatory sentencing. “Determinate sentences” are those in which the sentence imposed approximates time served, as opposed to early releases before serving the full sentence.

Only a small minority of all drug offenses are tried on the federal level, the Commission admitted, but with the states “generally not having adopted the federal penalty structure for cocaine offenders, the decision whether to prosecute at the state or federal level can have an especially significant effect on the ultimate sentence imposed on an individual offender.”

ORC on possession ( § 2925.11)
ORC on trafficking ( § 2925.03)

Ind. Code on possession ( § 35-48-4-6)
Ind. Code on trafficking ( § 35-48-4-1)

Wednesday, June 06, 2007

Ohio smoking ban -- again

The Buckeye Liquor Permit Holders Association to submit a proposal for a constitutional amendment, along with 1,417 signatures, to the Ohio Attorney General to roll back Ohio’s smoking ban and allow smoking in bars and other establishments not making more than 10% of their gross revenue from the sale of food.

The next step would be to circulate petitions in those types of establishments across the state in order to get the 140,000 signatures needed to have the proposal introduced in the legislature before the end of the current session at the end of the month. (Cin’ti. Enquirer article)

The proposal would also supersede any state or local law more restrictive of smoking

Names of executioners shielded

After the execution of Christopher Newton last month, the ACLU “responded with a wide-ranging request of state records, seeking, among other things,” an AP article in yesterday morning’s Cincinnati Enquirer relates, the names of the volunteer medics and guards who oversaw it,” drawing Ohio once more back into the ever-widening debate over capital punishment.

The article cites Richard Dieter, executive director of the Death Penalty Information Center—which opposes the death penalty—as saying the public can’t properly scrutinize the effectiveness of capital punishment without adequate information on those carrying it out. Advocates of the death penalty, such as Michael Rushford, president of the Criminal Justice Legal Foundation in Sacramento, accuse opponents of wanting to identify members of execution teams in order to intimidate them.

In most of the 37 states having the death penalty those identities are shielded & confidential, such as in Indiana; Ohio and Kentucky’s are more generic. Missouri has a pending bill not only keeping the identities of execution team members confidential, but also making disclosure of those identities an upper level, Class A, misdemeanor.

The Eighth Circuit Court of Appeals, by the way, decided Monday that Missouri’s lethal injection procedure was not “cruel & unusual punishment,” allowing executions to resume in the state. (Article) (Decision)

Tuesday, June 05, 2007

Ohio public records law question

Recordkeepers & administrative public offices across Ohio are in a quandary this week, awaiting word from Secretary of State Jennifer Brunner and Attorney General Marc Dann on how to proceed with changes recently made to the state’s public record law following passage, last December, of Substitute House Bill 141… and the confusion’s growing, according to a Columbus Dispatch article Sunday.

“The bill tweaked privacy protections already afforded police officers, firefighters, EMTs, prosecutors, and others,” the article says, but it’s the bill’s deletion of the phrase about personal information “maintained in a personnel record” from the original wording of the statutes that’s caught Secretary Brunner’s attention and that of Attorney General Dann.

Franklin County Auditor Joseph Testa, who was one of the ones first seeking advice, commented that with the “personnel record” stipulation stripped, it appears any public record, which could include deeds, mortgages, transfers of ownership, and voter registration. “Basically, what this bill would do is say these things are no longer public records,” Testa told the Dispatch. “It’s very, very far-reaching, and not a good direction to be going in.”

Franklin County Prosecutor Ron O’Brien formally requested guidance from the Attorney General in April. The Secretary of State has issued an advisory to Ohio election boards, also “in the interim…encouraging the sharing of the advisory with their individual prosecutors, so as to allow counsel the opportunity to become familiar with the new provisions and determine whether or not to notify other political subdivisions in the county whose employees may be protected by this legislation.”

H.B. 141
(bill analysis)