Tuesday, June 30, 2009

Ohio Supreme Court Rules of Procedure

The Ohio Supreme Court reminds us this morning that several amendments to the Rules of Procedure for appellate, civil, criminal and juvenile matters take effect this week. Justices voted 7-0 in approving the amendments earlier this week.

The proposed amendments were published for two rounds of public comment. Following the second comment period, the Supreme Court revised the proposed amendments to Juv. R. 25 and Civ. R. 33 and 36 and filed the revisions with the General Assembly on April 30. All amendments filed by the Supreme Court take effect on July 1, unless the General Assembly adopts a concurrent resolution of disapproval before that date.

Access the rules as amended

Ohio Transportation Laws Implemented

We didn't see this locally, but the Columbus Dispatch – courtesy of "bing" – carried word of some new traffic rules going into effect tomorrow.

"Beginning Wednesday, July 1st. 2009, drivers seeing a tow truck at the side of the road will have to move over and/or slow down, just as they have to for stopped police or fire vehicles."

You now also have to have your headlights on when your windshield wipers are on in the rain. --- and the speed limit for trucks on rural interstates is now going to be 65 mph instead of 55.

The law, part of Ohio's transportation budget bill, was passed April 1st. It also included provisions for a tolling authority, over-weight/over-size vehicles, all-purpose vehicles, multiple year registration of trailers & semi-trailers, and the transportation of radioactive materials. (See Legislative Analysis)

Pending Ohio Legislation

There's been some media attention made the past couple of days about three bills pending in Ohio's legislature, so we thought we'd re-cap them for those who might be interested.

The Columbus Dispatch, over the weekend, had an article discussing a bill introduced in the Ohio Senate that would allow emergency medical workers to draw blood from drunken-driving suspects. That's Senate Bill 58, introduced last Feb. 26, and now in the House’s Criminal Justice Committee for hearings. It was passed by the Senate in April. (Analysis )

Opponents to the measure cite a number of weaknesses or potential problems with the idea, including the fact that EMTs generally aren't trained to collect evidence. Also mentioned in the article was that Senator Tim Grendell, who drafted the amendment including EMTs, said "details of the provision would be worked out by the EMS board and the individual agencies at local levels." Jack Reall, president of the International Assn. of Firefighters Local 67, didn’t like the idea and would have "all details written into the law." "We haven’t had a good history in the state of Ohio of passing legislation and then having an advisory board write rules around it," he told the Dispatch.

The Ohio Senate passed Senate Bill 77 almost unanimously last Wednesday. It would "require anyone arrested for a felony offense starting in July 2011 to submit DNA testing." The legislation, partially a response to a Columbus Dispatch investigation that found police & courts routinely discarding evidence after trials and prosecutors & judges routinely dismissing inmate applications for DNA testing without a stated reason, also expands the categories of convicted felons eligible for DNA testing to include those on parole who have already served prison terms and those convicted of sexually oriented offenses. ( USAToday article )

The bill, though, is much more extensive than that. There are provisions requiring the recording of "custodial interrogations" and defining those as "any interrogation involving a law enforcement officer's questioning that is reasonably likely to elicit incriminating responses;" provisions requiring the preservation of "biological evidence" by "governmental evidence-retention entities," and defining both of them. It has provisions requiring any law enforcement or criminal justice agency that conducts "live" or "photo line-ups" to adopt specific procedures for those line-ups. And it has provisions for entering DNA records into the F.B.I'.s National DNA Index System, and for requiring a court that enters a judgment vacating & setting a conviction aside because of DNA testing to issue within 90 days of the court action an order directing that all official records pertaining to that case be sealed & the proceedings deemed never to have occurred. (See Analysis )

How either of these bills would fare in light of last week's U.S. Supreme Court decision in Melendez-Duaz v. Massachusetts, which held that criminal defendants had a constitutional right under Crawford v. Washington to confront & cross-examine forensic lab technicians who prepare reports used against them in court, would remain to be seen. The Supreme Court’s decision earlier, on June 18th., in Dist. Attorneys Office v. Osborne, holding that inmates didn't have a constitutional right to DNA evidence, might also come into play.

And, finally, two weeks ago, Ohio Representative Kathleen Chandler introduced a bill to "reform the ways public notices of government business are handled."

"A major component of the bill recognizes that the 'reading public' isn’t always reading traditional newspapers, a fact most newspapers recognized years ago, prompting them to create online editions" a Cincinnati Enquirer editorial recently said. Under the bill newspapers that print legal notices would also have to include them in their online editions, and after the first printing of a government notice appears in the newspaper, second, third, and fourth notices can be run on government websites.

Introduced on June 16th., House Bill 220 "implements the recommendations of the Local Government Public Notice Task Force which was created by the General Assembly in 2006." ( Task Force Recommendations )

Tuesday, June 23, 2009

Ohio Supreme Court adopts disciplinary changes

The Ohio Supreme Court announced yesterday the adoption of several amendments to the Rules for the Government of the Judiciary (Rule II) concerning grievances filed against Supreme Court justices and/or alleging campaign misconduct by any Supreme Court candidate (including incumbent justices). [ Here ]

The amendments become effective Jan. 1, 2010, and will apply to any grievance filed on or after Jan. 1, 2010.

Public comment on new revised Ohio probate forms

The Supreme Court of Ohio will accept public comment until July 21 on proposed new and revised probate court forms that concern adoptions, change of name proceedings and protecting incapacitated adults.

The new and revised forms:
  • Incorporate changes because of updates in adoption law.

  • Comply with case law and Civ. R. 4.4 for change of name proceedings.

  • Outline petition procedures for incapacitated adults.

Comments on the proposed amendments should be submitted in writing to: John VanNorman, Policy and Research Counsel, Supreme Court of Ohio, 65 S. Front St., Seventh Floor, Columbus, OH 43215, or john.vannorman@sc.ohio.gov.

Court’s announcement here
language of proposed rule here

Friday, June 19, 2009

DNA testing for convicts not constitutional right

The Supreme Court yesterday afternoon held that convicted inmates had no constitutional rights to further DNA testing “in hopes of proving their innocence long after having been found guilty of crimes and having had started serving their sentences.” ( MSNBC article) (USAToday article)

That case was District Attorney's Office for Third Judicial Dist. v. Osborne, 08-6 (Here)

“Chief Justice John Roberts, writing for the 5-4 majority, acknowledged that DNA testing ‘has an unparalled ability to both exonerate the wrongly convicted and identify the guilty,’” the USAToday article said, “But the said prisoners simply have no constitutional right to a state’s biological evidence after conviction.”

“Of the argument that the matter should be left to the individual states, USAToday said “Justice John Paul Stevens wrote for dissenters that recognizing a right to access for DNA testing ‘would not prevent states from creating procedures for litigants, but merely ensure that they do so in a manner that is non-arbitrary.’”

Reversing an earlier 9th. District Court of Appeals decision back in, “the High Court declined to declare such a constitutional right that Roberts wrote, ‘would take the development of rules & procedures in this area out of the hands of legislatures and the state courts in shaping policy in a focused manner and turn it over to the federal courts in applying the broad parameters of the due process clause.”

Citing Washington v. Glucksberg, 521 U.S. 702, 719 (1997), the Court said, “the availability of new DNA testing techniques, however, cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt. The task of establishing rules to harness DNA’s power to prove innocence without unnecessarily overthrowing the established criminal justice system belongs primarily to the legislature.”

The Court concluded by saying that there was “no reason to suppose that the federal courts’ answers to those questions would be any better than those of the state courts and legislatures, and good reason to suspect just the opposite.” [citing Herrera v. Collins, 506 U.S. 390 (1993) ]

Forty-six states and the federal government already have some sort of statutory base dealing with access to DNA evidence and inmate testing.

Thursday, June 18, 2009

Washington Supreme Court withdraws ruling over judicial conflict

Robert Ambrogi, on Law.com's Legal Blog Watch this morning, has a post about the Washington Supreme Court's withdrawning a landmark ruling in a public records case in response to complaints that the opinion could benefit a separate suit filed by one of the justices who decided the case.

Mr. Ambrogi writes that Washington Supreme Court Justice Richard Sanders wrote the majority opinion in a case capping a 12-year quest to obtain documents from King County, Washington about the public funding of Qwest Field in Seattle, but that county lawyers complained that Sanders had a conflict of interest because "even as he decided the case against King County, he had his own public records lawsuit pending against the state's attorney general, and used the first ruling to seek an increase in fines being awarded in his case."

An article in Tuesday’s Seattle Times related that Justice Sanders’ lawsuit involved "his efforts to obtain documents from the state's attorney general regarding a visit he had made with sex offenders back in 2003 while some of them had cases pending before the court," for which Sanders was later sanctioned for by the Judicial Conduct Commission. Sanders had subsequently appealed, but lost, that sanction.

The recusal question here is perhaps reminiscent of the holdings, at least, of the U.S. Supreme Court's opinion, earlier this month, in Caperton v. Massey Coal. While there is stark difference between Caperton and the present set of circumstances, Caperton’s petition for writ of certiorari referenced the Supreme Court's emphasis in Commonwealth Coatings v. Cont’l Cas Co. in 1968 that "any tribunal permitted by law to try cases & controversies not only must be unbiased, but also even avoid the appearance of bias," Caperton didn’t set out detailed standards for recusal. "The Court left many questions unanswered, inviting the states to sort out where the lines should be drawn to determine when recusal was appropriate," the New York Times said in an article titled "Uncertainty in Law Circles Over New Rules for Judges."

Tuesday, June 16, 2009

Bankruptcy Reform Act challenges

The Bankruptcy Abuse Prevention & Consumer Protection Act, which went into effect in April 2005, is said to have made some of the most substantial amendments to bankruptcy law since that code was enacted in 1978. It's also caused debate and controversy.

A National Law Journal article tells us that now the Supreme Court has agreed to resolve "a long-simmering debate over the constitutionality of provisions in the Act that include lawyers in the definition of 'debt relief agencies,' and restricts the advice they can give clients."

Technically there are two cases, but they've been consolidated for argument next term – Milavetz, Gallop & Milavetz v. United States, 08-1119 and U.S. v. Milavetz, Gallop & Milavetz, 08-1225. The question is "whether an attorney who provides bankruptcy assistance and doesn't fall in one of the five exception categories defined by the Act, is a 'debt relief agency' pursuant to 11 U.S.C. 526, and whether 11 U.S.C. 528 is a violation of the First Amendment." The government contends the provision can be narrowly construed and be interpreted to forbid only advice that a client take on new debt; Milavetz is arguing that including bankruptcy attorneys in a definition of "debt relief agencies," and requirements & restrictions on their advice & advertisements is unconstitutional.

The Eighth Circuit Court of Appeals, last September, held that “attorneys who provide bankruptcy assistance to assisted persons are debt relief agencies under the Bankruptcy Code, and §526(a)(4) is unconstitutional as it applies to them, but §528(a)(4) and 528(b)(2) are constitutional.”

Thursday, June 11, 2009

Texas sentences mentally retarded teen to 100 years

An 18-year old Texas teenager with "profound mental disabilities" was sentenced to 100 years in prison yesterday after pleading guilty to five counts of sex abuse, including aggravated sexual assault, toward a 6-year-old neighbor, USAToday reported this morning.

The case is going to be appealed, according to the Dallas Morning News, with a number of points about the trial itself being questioned. The teenager, has an IQ of 47 and was found mentally retarded as a child. Yet his court-appointed defense lawyer, who had the burden of explaining the boy's disability to the judge and jury, didn't ask for special accommodations for him, such as a liaison who could've helped him understand what was happening in the court. Nor did he call any witnesses to testify as to his defendant's condition.

Jurors also told the Morning News that during their deliberations they repeatedly sent notes to Lamar County Judge Eric Clifford asking if there were any alternatives to prison, which, they say, "the judge didn't answer clearly."

“The sentence raises serious questions about how people with profound disabilities are prosecuted in Texas at a time when both state lawmakers and the U.S. Supreme Court are considering the appropriate punishment for people who are young, mentally disabled, or both,” the Morning News said.

The Morning News also related that the Texas legislature, last week, sent a bill to Texas Governor Rick Perry that would require law enforcement officials taking someone into custody with obvious mental disabilities, to inform court magistrates within 72 hours, who would then have to order a local mental health or mental retardation expert assess the individual and allow that assessment to be considered during the trial’s sentencing phase. ( Bill Analysis ) (See our two previous posts Here and Here)

Thursday, June 04, 2009

Teenager convicted of aggravated murder

Todd Kendal Washington, age 17, was convicted of aggravated murder, felonious assault, and aggravated robbery yesterday, having pistol-whipped and robbed one victim on Aug. 22, and shooting & killing a second victim in front of the victim's girlfriend and two 4-year-old twins on Sept. 30, apparently without any motive.

Washington waived his right to a jury trial, requesting it be heard before a judge only. His attorney presented no evidence and did not call any witnesses, trying only to have Washington convicted on a lesser crime than aggravated murder.

Sentencing is scheduled for July 8th., but the most severe penalty he can currently get is life imprisonment. The Supreme Court, however, is set to hear cases this Fall looking at whether life in prison sentences without parole can be mete out on juvenile offenders, and there is a bill in the U.S. House of Representatives that would change that.

(See our previous posts, here & here, for further information)