Wednesday, January 30, 2008

Sixth Circuit "reasonableness of sentence" decision

The Sixth Circuit Court of Appeals yesterday upheld the sentences of two defendants who had plead guilty to coercing a minor to engage in sexually explicit conduct for the purposes of producing visual depictions of that conduct, and possession of child pornography. ( Decision)

Katherine Pratt and Walter Vowell, her live-in boyfriend at the time of the offenses, on three separate occasions made videotapes of Vowell sexually molesting Pratt’s then eight-year-old daughter while she ran the camera. Both plead guilty in district court. Pratt was sentenced to three years in prison and lifetime supervised release thereafter; Vowell was sentenced to 65 years in prison and lifetime supervised release.. They appealed their respective sentences, challenging the procedural and substantive reasonableness of them.

Sixth U.S. Circuit's Ross decision

Last Friday, the Sixth Circuit Court of Appeals overturned a 2005 District Court case that has become something of a legal quagmire since its beginning in 1999, and potentially isn’t too close to being over, either (Decision)

Hanna Hill was killed May 26, 1999. On May 27, 1999, Denny Ross was arrested for the crime; he was indicted on June 10th. on charges of aggravated murder, rape, kidnapping, tampering with evidence, and abuse of a corpse in the murder.

Ross’ initial trial began on September 28, 2000, but ended in a mistrial when the trial judge became convinced that the impaneled jury couldn’t be impartial because of a juror’s misconduct. A second trial in January 2001 was stopped when defense counsel’s motion to bar retrial on the grounds of double-jeopardy was granted after an evidentiary hearing. The state appealed and won a reversal in 2002. ( Decision)

Ross appealed to the Ohio Supreme Court, which declined to hear the case, after which he filed a habeas corpus petition in U.S. District Court for Northern Ohio in 2004.

The District Court first approached the problem with a magistrate judge’s issuance of a 74-page recommendation, which both Ross and the state filed objections to. District Court nonetheless followed the recommendation and granted the habeas corpus on August 22, 2005, holding that “the adjudication in the State courts ‘resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law.”

Both parties appealed the District Court’s decision, as well -- which brings us to last Friday, with the Sixth Circuit Court of Appeals holding that “with due regard for the principles of comity,finality and federalism that (the) Anti-terrorism & Effective Death Penalty Act is designed to serve… the court of appeals’ decision does not present an unreasonable application of clearly established federal law, and that reprosecution of (Ross) is not barred by the Double Jeopardy Clause,” thus reversing the granting of the writ of habeas corpus to Ross.

Ross’ attorneys plan to appeal the decision en banc (Article).

Ross is currently serving a 25-year prison sentence after being convicted of rape in another case in 2005.

Friday, January 25, 2008

Ohio Supreme Court rule amendments

Comments to the set of proposed amendments to the Ohio Rules of Appellate, Criminal, and Civil Procedures issued last October, have been reviewed and evaluated by the Supreme Court Commission on Rules of Practice & Procedure. The Commission, back on Jan. 16th., has now recommended further revisions to those previously published and resubmitted for public comment. ( Here)

“Modifications were made to the proposed amendments following the initial comment period, including withdrawing proposed amendments to Civ.R. 33(A)(3) and 36(A) which would’ve established “service of both a printed and electronic copy” as the triggering event for calculating response time for interrogatories and requests for admissions.

“The Court can revise & file the amendments with the General Assembly prior to May 1, 2008, with the amendments then taking effect on July 1, 2008 unless the General Assembly adopts a concurrent resolution of disapproval to them.

Comments on this second set will be accepted until March 4, 2008

Southern Ohio District Court reassigns cases

Five death penalty cases were reassigned from Judge Walter Rice’s docket yesterday by Southern Ohio District Court Chief Judge Sandra Beckwith.

Judge Rice has faced criticism from supporters of the death penalty for some time who think his deliberations are too lengthy, making it difficult for local prosecutors to retry cases overturned by appeals, but Beckwith was quoted as saying that Rice had a very heavy docket and that it “seemed logical to give him some relief,” not because of any complaints made of the judge’s handling of capital cases.


Wednesday, January 23, 2008

Ohio Southern District Court's "body parts" controversy

The Ohio Supreme Court is going to be hearing another case that’s generated international attention for its ramifications for medical examiners, EMTs, funeral directors, and others. (Article)

At issue, and filed as a class action naming the county commissioners offices of 87 of Ohio’s 88 counties, and all coroners, is whether an individual has a legal right to his/her relative’s or next-of-kin’s body parts and organs. Originating in Clermont County back in May 2006, the parents of a dead boy buried their son with his brain missing after the county coroner’s office had removed it for forensic examination, but had then failed to notify the family either of that fact or that they had retained the organ. (Complaint)

In 1991, the Sixth Circuit Court of Appeals had held that the wife of a dead man had, in fact, a “property interest” in the dead body of her husband. (See Brotherton v. Cleveland,M.D. ) There are similarities in that in both cases there were body parts removed without next-of-kin’s knowledge or permission, but in Brotherton the issue was the decedent’s corneas which had been permitted to be removed and used by an eye bank. That controversy centered around §2108.02(B) of the Revised Code, as part of the Uniform Anatomical Gift Act governing gifts of organs and body tissue for research or transplants.

It is not now being disputed whether next-of-kin have a protected right to the “bodies” of their relatives, but a matter of a recently enacted Ohio statute which reads that “retained tissues, organs, blood, other bodily fluids, gases, or any specimens from an autopsy are medical waste and shall be disposed of in accordance with applicable federal and state laws.” [ See ORC § 313.123 (B)(2) ]

Section 313.123, contains an exception, though, that when “the coroner has reason to believe that the autopsy is contrary to the deceased person’s religious beliefs…(he) shall return those specimens, as soon as possible, to the person who has the right to the deposition of the body.” Southern Ohio District Court Judge Susan Dlott, in ordering the case a certification of state question to the Supreme Court, said, “Arguably, if the legislature recognized a protected right in a decedent’s tissues and organs removed & retained by a coroner for forensic examination, the statute wouldn’t confine the return of specimens to a religious decedent’s next of kin alone. It thus appears that the enactment of Revised Code §313.123 may limit the rights of persons in the intact remains of their loved ones.”

Dlott stayed the case pending the Supreme Court’s decision., which was appealed but denied by the Sixth Circuit.

Friday, January 18, 2008

Wisconsin virtual schools

In what’s believed to be the first ruling of its kind in the United States, the 2nd District Court of Appeals in Wisconsin last month ordered the state to stop funding the Wisconsin Virtual Academy, bringing focus to bear on a national policy debate as to whether virtual schools qualify for public funding or relegate to home schooling at parental expense. ( MSNBC )( Local )

In a 148-page report issued last November, the North American Council for Online Learning (NACOL) stated that “42 states in the nation have significant supplemental online learning programs (in which students enrolled in physical schools take one or two courses online), or significant full-time programs (in which students take most or all of their courses online, or both. Only eight states – most of them on the east coast -- do not have either, although several of those have begun planning for online learning development as well.”

Ohio is one of those states having a fairly large number of online charter schools; Kentucky boasts the Kentucky Virtual High School and a district program in Jefferson County.

The Report also notes that while new online programs are being developed every year & the total number growing, “a small number have attracted attention from policymakers due to questions about finances, quality, and ways in which those programs adhere to existing laws & regulations.” That was essentially the case in Wisconsin.

“People are paying attention because online learning is really a growing phenomena,” Susan Patrick, president of NACOL, told MSNBC news yesterday. “For us to arbitrarily shut down online learning for students is a really dangerous precedent to set.”

Wisconsin Appeals Court Judge Richard Brown in the decision wrote that the Court’s role was “not to weigh public policies, but to interpret statutes,” and agreed the school may well be a welcomed new option for parents who for any number of reasons wanted their children to have a home-based education and be a benefit children who wouldn’t do as well in traditional settings, but that it was “also a public school operated with state funds , and its operation violates the statutes as they’re now written.” (Court’s Ruling )

Online charter schools in Indiana, similarly, were denied state funding by legislation early last Spring.

Friday, January 11, 2008

Capital Punishment & Public Executions

For those following, if you haven’t seen it yet, SCOTUSblog has the 70-page oral argument transcript from Baze v. Rees posted at their site. SCOTUSblog also “wikis” major or more notable cases such as Baze.

“The Supreme Court has never held that any method of execution violates Eighth Amendment ‘cruel & unusual punishment’” sanctions, a National Law Journal article last year said. It’s being asked to do so now, but is that “addressing the constitutionality of a method of execution or a legal standard the lower courts can use in determining whether a method of execution violates the Eight Amendment?”

“The need for one standard is obvious from the flow of litigation throughout the country that followed the High Court’s 2004 Nelson v. Campbell ruling, and 2005 Hill v. McDonough,” ( which allowed civil rights challenges to lethal injection), the article continued.

First responses don’t seem all that encouraging.

Meanwhile, another spectacular flashes on radar as the U.S. District Court for Eastern Arkansas, also last Monday, ruled that journalists and the public does not have an all exclusive right to view executions under the First Amendment. (Here) (Ruling)

“The Supreme Court has never recognized a First Amendment right of access to executions,” District Court judge Susan Webber wrote, and, in fact, in 1890, in determining that Minnesota’s restrictions on access to executions didn’t violate ex post facto laws, the Court in Holden v. Minnesota stated that “the number & character of those who may witness the execution, and the exclusion altogether of reporters or newspaper representatives… are regulations which the legislature, in its wisdom, and for the public good, could legally prescribe.”

In 1978 it reversed a Ninth Circuit ruling in Houchins v. KQED, holding that “the media has no special right of access to prisons beyond that afforded the general public.”

Webber did add that in 2002, the Ninth Circuit became the only federal appeals court to hold that “the public enjoyed a First Amendment right to view executions from the moment the condemned is escorted into the execution chamber..,” applying the so-called “logic & experience test,” derived from the Supreme Court’s decision in Richmond Newspapers v. Virginia, in 1980. While that test has been used in other venues, it has never been applied beyond the context of judicial proceedings that are part of the criminal trial process. Having so noted, she proceeded by writing that “in Furman v. Georgia, Justice Brennan noted that the American practice of punishing criminals by death had greatly changed over the years, stating that ‘concern for decency & human dignity … has compelled changes in the circumstances surrounding the execution itself. No longer does out society countenance the spectacle of public executions… we reject them as debasing and brutalizing to us all.”