Wednesday, May 26, 2010

Ohio Media Jury Instructions

The Ohio Supreme Court made note this afternoon that the Ohio State Bar Association Jury Instructions Committee this week approved a new jury instruction to limit access to news media while Ohioans serve on juries.

"The new instruction advises jurors not to obtain any information about a criminal or civil trial from outside sources such as Twitter, Facebook, YouTube or their iPhone while serving on a jury. Before a trial begins, jurors are warned to refrain from discussing a case and seeking outside information about a case and to limit their knowledge about the facts of the case to what is presented in court."

Ohio State Bar Association announcement
New Instructions

Monday, May 24, 2010

Georgia Spotlight on Nation's Indigent Defense Systems

Jamie Weis, accused in 2006 of killing an elderly neighbor and now having been in the criminal justice system & county jail for four years, is asking the U.S. Supreme Court to delve into what he claims is a breakdown of Georgia's public defender system.

Marcia Coyle's National Law Journal article this morning says, "Weis' petition for review comes at a time when an increasing number of legal challenges are being made to underfunded and overburdened state indigent defense systems. Several lawsuits are pending in Georgia, and courts in New York and Michigan recently have given the green light to class actions against those state systems for alleged failures to provide adequate legal representation."

Georgia's supreme court last March upheld Weis' conviction, ruling, 4-3, that delays were primarily attributable to Weis, not the state, and that Weis did not have a right to his choice of counsel and had refused to cooperate with his public defenders.

But Coyle's article's highlighting a variation of the indigent defense theme by pointing out that "in the U.S. Supreme Court, lead counsel Stephen Bright of the Southern Center for Human Rights in Atlanta, argues this is not a counsel-of-choice issue but an issue of continuity of counsel. Only Georgia, Louisiana and two federal circuits -- the 2nd and 6th -- refuse to recognize that, once the attorney-client bond of trust and confidence has been established, counsel cannot be removed absent some extreme circumstances. 'There's a whole string of [lower court] cases saying, unless the lawyer is just disabled or engages in contemptuous behavior, you can't sever the relationship,' Bright said. 'This wasn't about Weis' seeking preference of counsel but opposing counsel moving to remove counsel. I think the Court will be offended by that.'"

"Harder to convince the justices will be Bright's argument that there was a systemic breakdown of the state public defender system. In that analysis, the justices weigh a series of factors set out in their 1973 decision Barker v. Wingo. Just last term, in Vermont v. Brillon, they rejected the argument in a speedy-trial case where the defendant went through six lawyers, firing one and threatening to kill another."

Friday, May 21, 2010

Juvenile Life Sentences

As we all are aware of by now, the Supreme Court had a pair of major decisions handed down last Monday, the first being its holding that sentences of life in prison without parole for juveniles who committed non-homicide crimes was unconstitutional. [ Graham v. Florida, 08-7412 ]

"The inadequacy of penological theory to justify life without parole sentences for juvenile non-homicide offenders, the limited culpability of such offenders, and the severity of these sentences all lead to the conclusion that the sentencing practice at issue is cruel and unusual," the Court’s syllabus read..

"Embodied in the cruel and unusual punishments ban is the 'precept . . . that punishment for crime should be graduated and pro-portioned to [the] offense,' the Court said, referring to the 1910 precedent Weems v. United States, 217 U. S. 349.

"Cases implementing the proportionality standard fall within two general classifications. In cases of the first type, the Court has considered all the circumstances to determine whether the length of a term-of-years sentence is unconstitutionally excessive for a particular defendant’s crime. The second classification comprises cases in which the Court has applied certain categorical rules against the death penalty. In a subset of such cases considering the nature of the offense, the Court has concluded that capital punishment is impermissible for non-homicide crimes against individuals. e.g., Kennedy v. Louisiana, 554 U. S. ___. In a second subset, cases turning on the offender’s characteristics, the Court has prohibited death for defendants who committed their crimes before age 18, Roper v. Simmons, 543 U. S. 551, or whose intellectual functioning is in a low range, Atkins v. Virginia, 536 U. S. 304… A categorical rule avoids the risk that, as a result of these difficulties, a court or jury will erroneously conclude that a particular juvenile is sufficiently culpable to deserve life without parole for a non-homicide."

The Court also considered the practical matter that "Nationwide, there are only 129 juvenile offenders serving life without parole sentences for non-homicide crimes. Because 77 of those offenders are serving sentences imposed in Florida and the other 52 are imprisoned in just 10 States and in the federal system, it appears that only 12 jurisdictions nationwide in fact impose life without parole sentences on juvenile non-homicide offenders, while 26 States and the District of Columbia do not impose them despite apparent statutory authorization. Given that the statistics reflect nearly all juvenile non-homicide offenders who have received a life without parole sentence stretching back many years, moreover, it is clear how rare these sentences are, even within the States that do sometimes impose them."

Finally, in remanding the case to Florida, the Court said, too, that "Because age '18 is the point where society draws the line for many purposes between childhood and adulthood,' it is the age below which a defendant may not be sentenced to life without parole for a non-homicide crime… A State is not required to guarantee eventual freedom to such an offender, but must impose a sentence that provides some meaningful opportunity for release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance."

[ A second related juvenile case, Sullivan v. Florida, 08-7621, was dismissed per curium by the Court as being improvidently granted ]

Also, a National Law Journal article, this afternoon, indicated the Justice Department's studying Monday's Supreme Court ruling barring life sentences for juveniles convicted of non-homicide crimes, with a possible an eye toward improving rehabilitation programs for juveniles in prison, according to statements made by Assistant Attorney General Laurie Robinson told an American Bar Association public defender conference in Knoxville last night.

See National Law Journal, New York Times, Los Angeles Times, and CNN articles.

Civil Committment of Sexually Dangerous Persons Upheld

As we were discussing above, the Supreme Court handed down two major decisions last Monday. This is the second, United States v. Comstock, 08-1224, in which the Court upheld the law passed by Congress ordering the civil commitment of a mentally ill federal prisoner who is a sex offender with the commitment to continue beyond the date the inmate otherwise would be released.

This reversed & remands a 4th. Circuit Court of Appeals decision from last year.

At issue here was whether Congress had the constitutional authority to enact 18 U.S.C. 4248, which authorizes court-ordered civil commitment by the federal government of (1) "sexually dangerous" persons who are already in the custody of the Bureau of Prisons, but who are coming to the end of their federal prison sentences, and (2) "sexually dangerous" persons who are in the custody of the Attorney General because they have been found mentally incompetent to stand trial.

"There are sound reasons for §4248’s enactment," the Court in its syllabus said. "The Federal Government, as custodian of its prisoners, has the constitutional power to act in order to protect nearby (and other) communities from the danger such prisoners may pose. Moreover, §4248 is 'reasonably adapted' to Congress' power to act as a responsible federal custodian. United States v. Darby, 312 U. S. 100, 121. Congress could have reasonably concluded that federal inmates who suffer from a mental illness that causes them to ‘have serious difficulty in refraining from sexually violent conduct,' §4247(a)(6), would pose an especially high danger to the public if released. And Congress could also have reasonably concluded that a reasonable number of such individuals would likely not be detained by the States if released from federal custody."

The Court in reversing & remanding, though, also said that since it had not reached or decided any claim as to whether the statute or its application denies equal protection, procedural or substantive due process, or any other constitutional rights. Respondents were free to pursue those claims on remand, and any others they have preserved.

Justice Thomas dissented, joined by Justice Scalia. Justice Kennedy concurs in the judgment only, joined by Justice Alito.

CNN and had more.

Juvenile Sex Offender Registration/ Notification Rule Amendments

The handling of juvenile sex offenders has been one of the most contentious issues for states trying to implement the Adam Walsh Child Protection and Safety Act of 2006, Linda Baldwin, head of the department's compliance office told last Friday.

The law, which set tough new rules for registering sex offenders, now requires juveniles 14 and older who commit serious sex crimes to register for the rest of their lives and states to post that information publicly.

The Justice Department, however, has now issued a set of proposed revisions to those rules – that are open to public comment thru July 13th -- that would let states decide whether to include teen offenders in their public registries. The law also currently requires sex offenders who completed prior sentences, but then commit a new crime, to register again regardless of the crime. Another proposed change would give the states discretion to decide that as long as the new crime is not sexual or a felony. [See 75 FR 27362 on May 14, 2010]

Another proposal includes requiring jurisdictions to exempt sex offenders’ e-mail addresses and other Internet identifiers from public Web site posting, pursuant to the KIDS Act, 42 U.S.C. 16915a.

Retroactivity applies. "SORNA's requirements apply to all sex offenders, regardless of when they were convicted," the proposed rules read. "However, the SORNA Guidelines state that it will be deemed sufficient for substantial implementation if jurisdictions register sex offenders with pre-SORNA or pre-SORNA implementation sex offense convictions who remain in the system as prisoners, supervisees, or registrants, or who reenter the system through a subsequent criminal conviction… This feature of the Guidelines reflects an assumption that it may not be possible for jurisdictions to identify and register all sex offenders who fall within the SORNA registration categories, particularly where they have left the justice system and merged into the general population long ago, but that it will be feasible for jurisdictions to do so in relation to sex offenders who remain in the justice system or reenter it through a subsequent criminal conviction."

Comments regarding the proposed rules may be mailed to Linda M. Baldwin, Director, SMART Office, Office of Justice Programs, United States Department of Justice, 810 7th Street, NW., Washington, DC 20531. To ensure proper handling, please reference OAG Docket No. 134 on your correspondence. You may submit comments electronically or view an
electronic version of these proposed guidelines at

Ohio Supreme Court holds sex offender classification appeals are criminal matters

The Ohio Supreme Court yesterday morning held that an appeal of a sexual-offender classification under RC Chapter 2950 was an appeal of a criminal matter that must be filed within 30 days after judgment in the case is entered, not a civil matter for which the 30-day deadline is tolled until the defendant has been served with a copy of the judgment entry. ( See State v. Clayborn, 2010-Ohio-2123 )

Appellant had argued that the sexual-offender classifications were intended to be administrative, not punitive, and are therefore civil determinations.

The Court, however, pointed to three decisions in cases since 1998, in its summary, that dealt with various forms of the sex offender classification statute. "Our holdings inState v. Cook, State v. Wilson, and State v. Ferguson," it said, "do not turn the sex offender classification proceedings in the underlying criminal case, which has a criminal case number, into a civil case… While sex-offender-classification proceedings are civil in nature and require a civil manifest-weight-of-the-evidence standard, we hold that an appeal from a sexual offender classification is a civil matter within the context of a criminal case. Therefore, although the court reviews the classification matter on civil standards, the appeal requirements applicable to criminal cases, nonetheless apply."

Franklin County Court of Appeals decision

Thursday, May 20, 2010

Extention to IRS tax-exemption for charities

Following up on our posting from last Friday about Ohio charities possibly losing their tax-exempt status Monday, a Columbus Dispatch article yesterday now relates that the Internal Revenue Service is extending that deadline, with a guidance bulletin soon to be issued on how charities that missed the deadline can keep their tax-exempt status.

Statement of IRS Commissioner Doug Shulman on the Filing Deadline for Small Charities

Wednesday, May 19, 2010

U.S. Supreme Court on International Custody Disputes

In a case that was closely watched by courts, and family and international law practitioners, the Supreme Court, last Monday, found that an order prohibiting the removal of a child from a country without the noncustodial parent's consent is enforceable under the Hague Convention on the Civil Aspects of International Child Abduction , a reported yesterday morning.

The case, Abbott v. Abbott , was a dispute between the American mother and British father of a 15-year-old boy. Married in Hawaii in 1992, the couple moved to Chile but later began having marital problems. When they separated in 2003, the article said, the Chilean courts granted the mother daily care and control of their son and awarded the father regular visitation rights. Chilean law also conferred on the father a ne exeat right to consent before his son could be taken out of Chile. Unable to find work in Chile, the mother left Chile with their son and returned to the United States. The father found them in Texas and moved to enforce the ne exeat order.

At issue was whether a "ne exeat" right – the right of one parent to veto the other's removal of their child from the country – amounts to a "right of custody" within the meaning of the Hague Convention. Black's Law Dictionary defines "ne exeat" from the Latin meaning "that he not depart; being 1). A writ restraining a person from leaving the republic, specifically an equitable writ ordering the person to whom it is addressed not to leave the jurisdiction of the court or state."

Federal courts have disagreed on whether the ne exeat clause conferred a "right of custody" or a lesser "right of access" under the treaty. In the Abbott case, the 5th U.S. Circuit Court of Appeals ruled it was only a "right of access." That court followed a 2nd Circuit decision, Croll v. Croll (2000), in which then-Judge Sonia Sotomayor had dissented. The Courts of Appeals for the Fourth and Ninth Circuits adopted the conclusion of the Croll majority, while the Eleventh Circuit again followed the reasoning of the Croll dissent.

The Supreme Court, in its syllabus Monday, said, "Chilean law determines the content of Mr. Abbott's right, while the Convention's text and structure resolve whether that right is a "righ[t] of custody….

"That a ne exeat right does not fit within traditional physical custody notions is beside the point because the Convention's definition of 'rights of custody' controls. This uniform, text-based approach ensures international consistency in interpreting the Convention, foreclosing courts from relying on local usage to undermine recognition of custodial arrangements in other countries and under other legal traditions. In any case, this country has adopted modern conceptions of custody e.g., joint legal custody, that accord with the Convention’s broad definition."

Justice Stevens dissented, joined by Justices Thomas and Breyer.

Ohio expanding its "Alternative Response" Child Abuse/Neglect Program

A pilot program giving caseworkers the freedom to use an alternative approach to reports of child abuse and neglect in Ohio is being expanded from its original 10 to 15 additional counties in the state because of it's having been demonstrated to result in better outcomes for children and families, the Ohio Supreme Court announced last Monday.

Back in the summer of 2004, the Ohio Supreme Court’s Advisory Committee on Children, Families and the Courts directed its Subcommittee on Responding to Child Abuse, Neglect and Dependency to:

  • determine if Ohio’s statutory guidelines for the investigation and prosecution of child abuse and neglect properly serve children and families in need of government intervention;

  • make statutory and administrative recommendations to improve Ohio’s system for accepting and investigating reports of child abuse and neglect; and
  • make recommendations to standardize and make uniform Ohio statutes regarding abuse, neglect, and dependency cases.

During the pilot project, caseworkers in 10 counties used Alternative Response to respond to anywhere from 25 to 50 percent of all reports of abuse and neglect. Instead of conducting a traditional family assessment, they responded with an "alternative family assessment response," in which they assessed the needs of the child or family – in a non-threatening, non-adversarial manner – and then offered services to meet those needs.

Caren Kaplan, director of child protection reform for American Humane’s Child Welfare Programs and lead project consultant, told the Court that "the results – across the board – of the Ohio Alternative Response Pilot were sufficiently favorable to recommend that Ohio should develop a comprehensive plan and proceed with statewide implementation of alternative response in all 88 counties."

The Supreme Court's Subcommittee on Child Abuse and Neglect approved the recommendation last Wednesday, hopefully allowing the 25 counties now involved to begin offering those programs by Fall.

More in-depth information in the form of the final AIM report, final evaluation, chronicle of the pilot study and a report with statutory and rule recommendations are available on the American Humane Institute’s website online. While no longer being updated, the Supreme Court’s Final Report of the Subcommittee on Responding to Child Abuse, Neglect & Dependency is still available on the Court’s website.

Tuesday, May 18, 2010

Local Legal Apps Workshop

Impress clients and shock opposing counsel by expertly using the legal applications available via your iPhone or other wireless device.

On Tuesday, May 25, Emily Janoski-Haehlen from Chase College of Law will offer an "Introduction to Legal Apps."

Bring your questions!
What: Legal apps
Why: To learn about the different applications available to you via your mobile device. This class does not offer CLE credit.
When: Tuesday, May 25 @ 12:30
Where: Hamilton County Law Library Boardroom (formerly Cincinnati Law Library)
How to Register: Call 513.946.5300 register or email
This program is free to library subscribers; $35 for nonsubscribers

Friday, May 14, 2010

IRS non-profit filing requirements

Thousands of small non-profits, from Little League teams to community soup kitchens, could lose their tax-exempt status on Monday because of an IRS filing requirement that was part of the 2006 Pension Protection Act, a USAToday article this morning said.

"Previously, non-profits with annual revenue of less than $25,000 were excluded," the article said. "Non-profits that fail to file a return for three consecutive years lose their tax-exempt status. On May 17, the three-year clock runs out for non-profits that haven't filed a return since 2007."

Ohio Provisions for Intimidation of Homeless Persons

A bill introduced in the Ohio House of Representatives last Wednesday would bring some 30 existing statutes of the Revised Code, including involuntary manslaughter, four types of assault, menacing & stalking, hazing, unlawful restraint, arson, vandalism, and three types of sex offenses under additional provisions "if the offender commits the violation with the intent to cause harm to any victim of the violation because that victim is a homeless person."

"Violation of the new section would be 'intimidation of a homeless person,' carrying a penalty of the next higher degree than the offense the commission of which is a necessary element of intimidation of a homeless person."

HB 509

Wednesday, May 12, 2010

Beuke appeal denied

Michael Beuke's motion for a restraining order from the Ohio Southern District Court, again stopping his execution tomorrow morning, was denied yesterday. ( Court's order )

Responding to the State's memorandum in opposition to Beuke's appeal, which raised the potentially threshold issue of whether Beuke had waited too long to request injunctive relief, it was posited that because the State of Ohio modified its execution procedures in November 2009– which defendants mis-identified as "November 30, 2010" – Beuke's waiting until only one week prior to his execution to seek injunctive relief constituted unnecessary delay. "Certainly, Beuke could have and should have pursued injunctive relief earlier than he did," the Court said. "A more diligent approach would have enabled the parties and this Court to approach today's issues without the time constraints confronting all involved. This Court declines to consider whether the inexplicable delay in the filing of Beuke's motion might prove dispositive of the weighty issues involved in today's inquiry, however, because an alternative non-procedural ground proves dispositive."

An interesting aside was an Associated Press article this morning reporting that "a worldwide shortage of the anesthetic used in lethal injections almost kept Ohio from proceeding with an execution scheduled for Thursday."

Richard Nields

Richard Nields' public defender lawyers told the Ohio Parole Board last Monday that he had been an alcoholic with brain damage when he killed his live-in girlfriend during a 1997 argument in their Finneytown, Ohio home, reports.

Nields is scheduled to be executed June 10th.

The AP article, above, also noted the Sixth District Court of Appeals' "being skeptical about Nields' death sentence, noting it barely reached the threshold for a capital charge." The Court of Appeals, however, there also concluded that "a death specification based on an inferential chain of events must still be consistent with the requirement that the death penalty be sparingly, and prudently, applied. See Roper v. Simmons, 543 U.S. 551, 568 (2005) ("Capital punishment must be limited to those offenders who commit a narrow category of the most serious crimes and whose extreme culpability makes them the most deserving of execution.") (quotation marks omitted); see also Kansas v. Marsh, 126 S. Ct. 2516, 2543 (2006) (Souter, J., dissenting) ("[W]ithin the category of capital crimes, the death penalty must be reserved for 'the worst of the worst.'"). At the same time, however, we recognize that a determination of whether this particular murder fits within that 'narrow' category" is a policy matter initially delegated by the state of Ohio to the jury and eventually delegated by the State to its governor to resolve in a fair-minded and even-handed manner." ( Nields v.Bradshaw, 05-401 @ Pp. 16)

Ohio equivalency evaluation of applicants educated outside the United States, but want to be admitted to practice law in Ohio.

Related to our earlier post, the Ohio Supreme Court also announced Monday that it will be accepting public comment on rule amendments clarifying requirements for equivalency evaluation of applicants educated outside the United States who want to be admitted to practice law in Ohio.

Summarizing the amendments, the Court's announcement, said "the proposed amendments to the Rules for the Government of the Bar of Ohio would require an applicant to submit an education evaluation completed by an education evaluation service approved by the Supreme Court. If an applicant's education includes legal instruction, then the applicant must also submit a 'properly authenticated transcript showing successful completion of 30 credit hours of specified courses taken at a law school approved by the American Bar Association' within three years."

Comments on the proposed amendments should be submitted in writing to: Lee Ann Ward, Director of Bar Admissions, Supreme Court of Ohio, 65 South Front Street, 5th Floor, Columbus, Ohio 43215-3431, or e-mailed to not later than June 8, 2010. Your full name and mailing address should also be shown in any comments submitted by e-mail.


Amendments to Ohio Rules Governing Admission to Practice Law

Amendments to the State of Ohio's Rules Governing Admissions to the Practice of Law, specifically character investigation by admissions committees ( Gov.Bar I, Sec. 11 ) were adopted by the Supreme Court March 31st. and became effective on May 1st.

The Supreme Court's announcement summarized the change as "expanding mandatory Supreme Court review of the character, fitness and moral qualifications of applicants seeking to be admitted to the practice of law to anyone convicted of aggravated murder, murder, or any first- or second-degree felony."


Tuesday, May 11, 2010

Ohio Uniform Power of Attorney Act

A bill seeking to adopt the Uniform Power of Attorney Act in Ohio was introduced in its Senate last week.

Ohio power of attorney statutes came into being around 1831 with the advent of other "proof/acknowledgment/written instrument and reecording" statutes, and are now largely found in ORC Chapter 1337. Kentucky and Indiana have comparable legislation.

The new bill would "adopt the Uniform Power of Attorney Act; modify a trustee's duties with respect to life insurance policies, specify a trustee's power to distribute trust principal in further trust, provide for the titling of assets in trust form, and make other changes in the Trust Code; modify the anti-lapse provisions regarding wills and adopt anti-lapse provisions applicable to trusts; and to provide a mechanism for a probate court to order a person who suffers from alcohol and other drug abuse to undergo treatment.

Ohio proposes inreasing retirement ceiling for judges

A resolution introduced in the Ohio House of Representatives yesterday is seeking "To eliminate the age at and after which a person may not be elected or appointed to a judicial office," in the state of Ohio. This would be another constitutional amendment for the voters to consider in November.

§4.06(C) of The Ohio Constitution now ceilings the age of judges at 70 years.

“If adopted by a majority of the electors voting on this proposal, Section 6 of Article IV as amended by this proposal shall take effect on January 1, 2011.”

Monday, May 10, 2010

Ohio death row inmate claims tolerance to lethal injection drugs

In an interesting legal maneuver, Michael Beuke, who's scheduled to be executed Thursday for a 1983 violent crime spree that included aggravated murder, two counts of attempted aggravated murder, three counts of aggravated robbery, and three counts of kidnapping, filed motion last week for another restraining order to stop that execution.

Beuke's motion, AP articles report, "say a barbiturate he takes for a seizure disorder could limit the effectiveness of midazolam, the first drug called for in Ohio's backup execution method that injects drugs into muscles… a twist on a similar argument made last month by another Ohio death row inmate who claimed he had an allergy to anesthesia that could affect his execution. [ Motion for TRO ]

The federal courts rejected Darryl Durr's claim and he was executed April 20.

"Ohio adopted its backup method last year when it switched to a single dose of a powerful anesthetic as its primary execution method," the AP article said. "The backup method has never been used, meaning there is no precedent in other executions for the type of problems Beuke alleges could occur."

In its answer to Beuke's motion, the Attorney General's Office noted that Beuke had been taking the case-in-point anti-seizure medication in for a long time, yet his attorneys chose not to raise the issue until a week before his date of execution.

Friday, May 07, 2010

The Thomas J. Moyer Award for Judicial Excellence

The Ohio State Bar Association (OSBA) announced yesterday the creation of the Thomas J. Moyer Award for Judicial Excellence, in honor of the late Chief Justice. Mary Moyer, wife of Chief Justice Moyer, accepted the first award posthumously on his behalf.

The Supreme Court's website relates that "the prestigious award honors a current or former Ohio state or federal judge who demonstrates outstanding qualities of judicial excellence including integrity, fairness, open-mindedness, knowledge of the law, professionalism, ethics, creativity, sound judgment, courage, and decisiveness."

Officers from the OSBA and Ohio Judicial Conference will form the nominating committee while the OSBA Board of Governors will select the recipient based on the committee’s recommendation.

The Supreme Court also reported that "the OSBA also established the Thomas J. Moyer Fund at the Ohio State Bar Foundation, made an initial contribution of $1,000 in Chief Justice Moyer's name, and will make a similar contribution each year to honor each award recipient. Chief Justice Moyer's family will be given the opportunity to designate the use of the fund."

Ohio Supreme Court's announcement
Ohio Bar Association

Legislation stripping citizenship from U.S. terrorists

A CNN article this morning heralds “Bill aims to strip certain Americans of their citizenship.”

"A bipartisan group of legislators on Thursday introduced legislation in Congress to strip citizenship from any American found to be involved in terrorism.," the article says. Joe Lieberman, I-Connecticut, and Scott Brown, R-Massachusetts, co-sponsored the bill in the Senate, while an identical bill was introduced in the House by Reps. Jason Altmire, D-Pennsylvania, and Charlie Dent, R-Pennsylvania. (See Senate Bill 3327 and House Bill 5237)

"'As the attempted terrorist attack on Times Square showed us again, our enemies today are even more willing than the Nazis or fascists were to kill innocent civilian Americans [in WWII],' Lieberman, chairman of the Senate Homeland Security Committee, told reporters. 'Our enemies today are stateless actors who don't wear uniforms and plot against Americans abroad and here in the United States…'"

The bill, Lieberman said "…would simply update the 1940 law to account for the enemy that we are fighting today… Many have said this law goes too far. Remember, this bill only updates an existing statute that has been on the books for 70 years that accounts for the terrorist enemy that we are fighting today"

"Legal experts, meanwhile, argue that the new bill has serious constitutional problems," the article said. "'It's unconstitutional,' said Christopher Anders, Senior Legislative Counsel to the American Civil Liberties Union. 'Taking away someone's citizenship is a truly extraordinary step and to do that based on mere suspicion and to be giving that power to government bureaucrats without ever having a court trial will be an amazing step.'"

CNN noted that the Supreme Court had examined citizenship rights in the 1980 case of Vance v. Terrazas. That case involved the son of a Mexican citizen born in the United States who, at the age of 22, executed an application for a certificate of Mexican nationality, swearing "adherence, obedience, and submission to the laws and authorities of the Mexican Republic" and "expressly [renouncing] United States citizenship, as well as any submission, obedience, and loyalty to any foreign government, especially to that of the United States of America. . . ."

Vance, however, wasn't the first consideration, as the District Court prior to the Supreme Court's hearing it observed that "the first sentence of the Fourteenth Amendment, as construed in Afroyim v. Rusk, 387 U.S. 253, 268 (1967), '[protects] every citizen of this Nation against a congressional forcible destruction of his citizenship' and that every citizen has 'a constitutional right to remain a citizen . . . unless he voluntarily relinquishes that citizenship.'" The Supreme Court there agreed.

The New York Times also had an article.

Thursday, May 06, 2010

Ohio Statute of Limitations on Child Sex Abuse Not Enhanced by Repressed Memories

On April 14, 2008, a Greene County, Ohio woman filed a complaint claiming she had been sexually assaulted and molested at least three times -- the last in the fall of 1984 – but that she had repressed memories of the abuse until they surfaced 23 years later on April 20, 2007, triggered by the killings on the campus of Virginia Tech.

The trial court dismissed the complaint holding the period of limitations applicable to actions involving claims of childhood sexual abuse [ ORC 2305.111(C) ] had expired.

On appeal, the 2nd. District Court began its deliberation with a recapitulation of the history of statutory limitation period for childhood sexual abuse actions, noting that the Supreme Court had expressly adopted a limitations period in 1994 with its holding in Doe v. First United Methodist Church (1994), 68 Ohio St.3d 531, 629 N.E.2d 402. There the Court held that"[a] cause of action premised upon acts of sexual abuse is subject to the one-year statute of limitations for assault and battery." A minor victim, however, "has one year from the date he or she reaches the age of majority to assert any claims against the perpetrator arising from the sexual abuse." This rule, the 2nd District noted, applied only "where the victim knows the identity of the perpetrator and is fully aware of the fact that a battery has occurred." (2nd District opinion )

Later that same year, in Ault v. Jasko (1994), 70 Ohio St.3d 114, 637 N.E.2d 870, the Supreme Court addressed the situation where a minor victim repressed memories of the alleged abuse. The "discovery rule," it held, applied to toll the limitations period in such situations… The limitations period did not begin to run until "the victim recalls or otherwise discovers that he or she was sexually abused, or when, through the exercise of reasonable diligence, the victim should have discovered the sexual abuse."

It was this second premise upon which the current case made its way to the Supreme Court now, though it, like the 2nd. District, disagreed.

"It is beyond dispute from the unambiguous statutory language that R.C. 2305.111(C) governs a claim resulting from childhood sexual abuse," the Court said. "That statute clearly provides that a cause of action brought by a victim of childhood sexual abuse asserting any claim resulting from childhood abuse accrues upon the date on which the victim reaches the age of majority.

"The only exception to the accrual of the cause of action on the date the victim reaches the age of majority is when the defendant fraudulently conceals facts from the plaintiff. While R.C. 2305.111(C) explicitly sets forth a tolling provision for cases involving fraudulent concealment, the statute does not contain a tolling provision for persons with repressed memories of childhood sexual abuse. The legislature could have included a tolling provision for repressed memory, but it chose not to do so. That decision is a legislative prerogative that we are not permitted to overrule."

[ Summary of Supreme Court’s decision ]

U.S. Supreme Court strikes down habeas corpus grant based on double jeopardy clause

Anna Christensen and Stanford's Alex Harris at ScotusBlog, last Tuesday reported on the U.S. Supreme Court decision in Renico v. Lett , No. 09-338.

"At issue in the case," they summarized, "was the trial judge's decision to declare a mistrial in respondent Reginald Lett's first trial on first-degree murder charges. Neither Lett nor the state had asked for a mistrial on the record; after four hours of deliberations, the jury had sent the judge a note asking what would happen if it could not agree. In his second trial, the jury found Lett guilty. He appealed, arguing that the Double Jeopardy Clause prohibited the state from trying him again. The Michigan Court of Appeals agreed and reversed his conviction, but it was then in turn reversed by the Michigan Supreme Court. Relying on the U.S. Supreme Court's holding nearly two hundred years ago in United States v. Perez, that court reasoned that a new trial after a mistrial does not violate the Double Jeopardy Clause as long as there was a 'manifest necessity' for the mistrial, as reflected by the trial judge's exercise of its 'sound discretion'; moreover, the Michigan Supreme Court noted, the U.S. Supreme Court has subsequently held that appellate courts must generally defer to the trial judge's determination that the jury is deadlocked."

The Supreme Court's answer… "In concluding that Lett is not entitled to a writ of habeas corpus, we do not deny that the trial judge could have been more thorough before declaring a mistrial. As the Court of Appeals pointed out, id.,she could have asked the foreperson additional follow-up questions, granted additional time for further deliberations, or consulted with the prosecutor and defense counsel before acting. Any of these steps would have been appropriate under the circumstances. None, however, was required—either under our double jeopardy precedents or, by extension, under AEDPA.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) "prevents defendants—and federal courts—from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts," the majority's opinion said. "Whether or not the Michigan Supreme Court's opinion reinstating Lett's conviction in this case was correct, it was clearly not unreasonable. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion."

Justices Stevens, Sotomayor, and Breyer dissented, "providing historical anecdotes about the lengths to which common law courts would go to force juries to reach a verdict," as Christensen and Harris put it, "and reiterating the more pragmatic rationales for the Double Jeopardy Clause's guarantee that a mistrial will ‘be reserved for 'extraordinary and striking circumstances.''"

Sixth Circuit Court of Appeals decision

Tuesday, May 04, 2010

Ohio Supreme Court Holds Prior DNA Testing Not 'Definitive' If New Testing Method Can Detect Information Old Test Counldn't

The Ohio Supreme Court today ruled that, under ORC §2953.74, a state law that allows prison inmates to obtain new DNA testing of evidence from their trials under certain conditions, a prior DNA test is not "definitive" when a new testing method can detect information that could not be detected by the prior DNA test. (State v. Prade, Slip Opinion No. 2010-Ohio-1842 )

Writing for the majority, Justice Evelyn Lundberg Stratton "emphasized that today's decision does not address 'the issue of whether to allow new DNA testing in cases where prior tests provided a match or other meaningful information, and an inmate is simply asking for a new test using the latest techniques. Rather, our holding is limited to situations in which advances in DNA testing have made it possible to learn information about DNA evidence that could not even be detected at the earlier trial.'"

The case was that in which former Akron police captain Douglas Prade was found guilty and is currently serving a life sentence for the 1997 murder of his ex-wife, Dr. Margo Prade. Among the physical evidence introduced at his 1998 trial was a bite mark that the killer made on Dr. Prade’s arm through her lab coat and blouse when she apparently attempted to defend herself, the Court’s summary said. Although DNA tests were performed on the sleeve of the lab coat over the bite mark, blood from the victim’s wounds had covered that area of the sleeve and technicians using the best testing method available at that time, called polymerase chain reaction or PCR testing, reported that the only DNA they were able to detect on the sleeve was that of the victim. Expert witnesses called by Prade and by the state offered conflicting testimony regarding whether the bite mark left on the victim’s skin was compatible with Prade’s teeth. He was subsequently convicted and sentenced to life in prison.

"Citing testimony by the quality assurance administrator of the state's own DNA testing laboratory," the Court summary said, "Justice Stratton wrote that recent advances in DNA testing techniques, including the development of Y-STR testing which 'ignores' female DNA in a test sample and detects only male DNA, now makes it possible for new testing to do what the PCR methodology available in 1998 could not: identify and test small amounts of genetic material from a male even when it has been commingled with a much greater amount of female DNA such as the blood stains on Dr. Prade’s lab coat. 'Thus,' wrote Justice Stratton, 'new DNA testing methods are now able to provide new information that was not able to be detected at the time of defendant’s trial. We hold that a prior DNA test is not 'definitive' within the meaning of R.C. 2953.74(A) when a new DNA testing method can detect information that could not be detected by the prior DNA test.'"

"Secondhand smoke" defense rejected in Eastern District N.Y. case this morning reported that "a federal judge in Brooklyn has held that a baggage screener at John F. Kennedy International Airport who tested positive for marijuana cannot avoid being fired on the grounds that his test results were allegedly the product of secondhand smoke."

Plaintiff in the case, Leonard Sutera, had provided a urine sample in a random drug test for which he had tested positive for marijuana. He later claimed the result was caused by secondhand smoke he had inhaled at a recent concert. A supervisor rejected that claim, and he was fired.

Eastern District of New York Judge Jack B. Weinstein dismissed the case last Friday, shooting down plaintiff's civil rights challenge contending he was owed a hearing before an independent tribunal prior to his termination, and that the federal government violated his substantive and procedural rights, as well as Privacy and Administrative Procedure acts, in his 22-page decision. ( See Sutera v. Transportation Security Administration, 09-cv-2351 )

U.S. Supreme Court's new entrance

The U.S. Supreme Court announced, yesterday, that it was closing its grand front entrance – up the marble steps to enter the building under the facade that says "Equal Justice Under Law" -- to the arriving public. Instead, citing security reasons, visitors will have to enter a side entrance and go through screening devices that can check for "weapons, explosives and chemical and biological hazards," the court said in its statement. (See also L.A. Times article )

Several publications have noted Supreme Court Justices Breyer and Ginsberg's statement objecting to the plan, calling the change unfortunate and unjustified. Breyer said no other high court in the world, not even Israel's, has closed its front entrance over security concerns…The main entrance and front steps "are not only a means to, but also a metaphor for, access to the court itself."

As several articles have noted, however, the building's remodeling & renovations, in general, along with the new entrance, grew out of two independent security studies in 2001 and 2009. (Here )

Monday, May 03, 2010

Ohio bills addressing sex offender notification "loophole"

In an attempt for Ohio to close a loophole in its sex offender notification law that left neighbors of a Cleveland man suspected of killing 11 women unaware of his criminal past, State Sen. Shirley Smith, a Democrat from Cleveland, has introduced a bill that would require county sheriffs to go back and look for sex offenders whose presence in a community had not been announced, the Plain Dealer reported this morning.

Although Tier III offenders --the most dangerous class, and the one that included Anthony Sowell, who was accused last year of murdering 11 women and leaving their remains in his suburban Cleveland home -- are required to tell county sheriffs every 90 days where they are living, a rule requiring the sheriff to send out notifications to area residents about the person applies only to newly registered offenders, the article says. Smith's bill, now in the Senate's Judicial Criminal Justice Committee, would presumably close that gap.

A similar bill with the most of the same supporters, introduced last November, is also in that committee.

Former Franklin County Probate Court Judge Eric Brown sworn in as Chief Justice of Ohio Supreme Court

Former Franklin County Probate Court Judge Eric Brown was sworn as Chief Justice of the Supreme Court of Ohio at a public ceremony at 11:30 a.m. today, at the Ohio Statehouse. (Announcement)

On April 14, Gov. Ted Strickland named Judge Brown to the vacancy on the Supreme Court following the late Chief Justice Thomas J. Moyer’s unexpected death on April 2.

Prior Posting