New York Facebook privacy questions

To go along with our post yesterday about Twitter account ownership, MSN Business this morning’s reporting a New York appeals court’s determining there are limits to how much proof of employee shenanigans a business can legally gather from sites like Facebook.

In this instance a New York appeals court determined last October (decision) that there were limits to how much proof of employee shenanigans a business could legally gather from social media utilities such as Facebook. The Appellate Division of the New York Supreme Court ruled that commercial builder Turner Construction Co. should not have a free hand in searching the Facebook activity of an employee who was seeking compensation in a personal injury suit against the company. The company was attempting to use information from the employee's Facebook account to show that he was not being truthful about the extent of his injuries.

“Though disparate in the level to which social media activities are admissible as evidence in a legal proceeding,” MSN’s article notes, “one thing that's for sure is that social media utilities and what we post on them have wide implications. Specifically, these cases point to the emerging role social media utilities are taking in regard to civil suits, with some courts granting greater access to what was once considered private information on a social media site.

“And if you need more of a reason to pay attention to cases that involve social media, keep in mind that civil law is established through court precedents — that is, previous court decisions like those mentioned above. So don't think for a moment that rulings in faraway states won't impact your case in California or Illinois or wherever it is you do business…”

Who owns company Twitter account?

“Who, exactly, owns your Twitter account?” a CNN.com article this morning asks, stating that “It's a potentially complicated question when an account is used both professionally and personally.

Now there’s a California case concerning whether a Twitter account belongs to a company or a former employee that CNN says “may blaze new trails in social media law.”

PhoneDog, a website devoted to all things mobile products and services, filed suit against former employee Noah Kravitz in California Northern District Court for $340,000 last July, alleging Kravitz' continued use of the Twitter account he was "given use of" while employed with PhoneDog after his leaving was a misappropriation of trade secrets and damaged the company's business, goodwill, and reputation.

Kravitz' motion to dismiss because of lack of subject matter jurisdiction and failure to state a claim have up to this point been denied and denied in part, granted in part, respectively. ( Order )

Calls for Public Banking

Spurred by the recession, bank bailouts and the difficulty consumers are having getting loans, a USAToday.com article this morning says, members of the “Occupy movement” and others are stepping up calls for a public banking option similar to the one that’s been in North Dakota since just after the turn of the century.

North Dakota currently has the nation's only state-run bank, enacting its model in 1919. Supporters point out that the state is also the only one to have had a budget surplus since the economic crisis began, and an unemployment rate below 4%. All state agencies deposit their funds in the Bank which then uses that money to support economic development, make student loans and partner with community banks to make small-business and farm loans. Deposits are backed not by the FDIC, but by the state, USAToday reports.

The Public Banking Institute, a non-profit group formed last January to advocate for public banking, reported 14 states have considered legislation to either create some form of a state-run bank or study whether it is feasible. Illinois HB 2064 is one of those bills, but none of our local tri-states are among that group.

Amicus brief supporting FDA warning labels

University of Pittsburgh’s Jurist Paper Chase last Friday reported Attorney Generals from 24 states & U.S. territories -- Alaska, Arizona, Arkansas, California, Connecticut, the District of Columbia, Hawaii, Idaho, Illinois, Iowa, Maine, Maryland, Mississippi, Montana, New Hampshire, New Mexico, Ohio, Rhode Island, South Dakota, Utah, Vermont, the Virgin Islands, Washington and West Virginia-- filed an amicus brief in support of the FDA’s appeal of the U.S. Court of Appeals for the District of Columbia Circuit’s blocking the implementation of new FDA requirements mandating that all cigarette packages would have graphic warnings detailing the dangers of tobacco use back in November.

Jurist recounted that President Obama had signed the Family Smoking Prevention and Tobacco Control Act (FSPTCA) [HR 1256 text] in 2009, with the Food & Drug Administration (FDA) then mandating that by September 2012 all cigarette packaging contain new warning labels with graphic images of the health issues related to smoking and related textual warnings. A suit filed by the R.J. Reynolds Co. requested an injunction [ complaint ] on the basis that the new regulations violated their First Amendment rights and burdened their right to commercial speech by compelling placement of the new warning labels on the top 50 and bottom 20 percent of all packaging & advertisements. The District of Columbia Circuit agreed.

Applications for Ohio Southern District indigent defense attorneys

The Ohio Southern District Court, pursuant to its Criminal Justice Act Plan, has begun soliciting applications from those wishing to serve as appointed counsels for indigent criminal defendants under the 18 U.S.C. §3006A for the Dayton and Cincinnati areas.

Applicants must complete the application form found on the Court’s website, by contacting the Clerk of Court by mail to:

“Clerk, U.S. District Court ,Federal Building ,Room 712, 200 West Second Street, Dayton, Ohio 45402” or telephoning (937)-512-1400 in Dayton, or “Clerk, U.S. District Court, 100 E. Fifth Street, Room 103, Cincinnati, Ohio 45202” or telephoning (513) 564-7500 in Cincinnati.

Existing panel members must complete an application if they wish to be considered for continued membership in the CJA Panel, and continued membership is not guaranteed.
(Court’s announcement)

Ohio Innocence Project wins man's release

Cincinnati.com articles last week reported on the release of Roger Dean Gillispie, a Dayton-area man who spent two decades in prison for rapes that U.C. “Innocence Project” law students and others believe he did not commit.

U.S. District Court Magistrate Judge Michael Merz, on Dec. 15th. found Gillespie’s habeas corpus “meritorious,” ordering his release from custody unless retried & convicted by July 1, 2012. That was slightly modified yesterday in response to the State’s appealing the decision, by the Court’s “recognizing that Fed. R. App.P. 23(c) creates a presumption in favor of release pending appeal of a successful application for the writ, but that the presumption must be balanced against “the factors traditionally considered in deciding whether to stay a judgment in a civil case.” Gillispie’s release is conditional, pending the Sixth Circuit appeal and any subsequent review by the U.S. Supreme Court, and his remaining within the Southern District of Ohio on electronically monitored home detention.

( Court’s order )

Ohio Supreme Court holds trial court can't modify own final judgment

Ohio’s supreme court on Dec.22, held that, unless authorized by a specific statutory provision, a trial court generally does not have authority to modify its own final judgment that imposes a criminal sentence.

The Court summarized that “Jack Carlisle of Cleveland had been convicted by a jury of charges in connection with a sexual assault on his 6-year old foster daughter & sentenced to prison terms of three years for kidnapping and one year for gross sexual imposition, with those terms to be served concurrently. The trial court then stayed execution of Carlisle’s sentence and allowed him to remain free on bond while he appealed his convictions.

“The 8th District Court of Appeals affirmed Carlisle’s conviction, revoked his bail, and issued a special mandate (directive) ordering the trial court to proceed with execution of its sentence. But before the trial court acted on the court of appeals’ mandate, however, Carlisle filed a motion asking the trial judge to reconsider and modify his sentence. Asserting it retained authority to modify his sentence until it was executed by delivering him to prison, Carlisle advised the trial court that health conditions from which he had suffered at the time of his trial were chronic and life-threatening, requiring ongoing treatment, including kidney dialysis three times a week, that would have to be paid for by the state if he was sent to prison.

“In addition to challenging the trial court’s authority to modify Carlisle’s sentence in the first instance, the state acknowledged the significant medical expenses associated with Carlisle’s incarceration but represented that it was willing to bear the costs in light of the seriousness of the offense. The state also argued that Carlisle’s medical problems did not prevent him from committing the offenses and, therefore, incarceration was necessary to protect the community.

“The trial court agreed with Carlisle that it retained authority to modify his sentence, and, taking note of the state’s recent budget cuts and the ‘astronomical’ costs the state would incur for Carlisle’s medical treatment, and finding that Carlisle posed no threat to the community, vacated its original sentence and resentenced Carlisle to five years of community control based on ‘a change of circumstances.’

“The state appealed resentencing, arguing that the trial court had acted without legal authority in reconsidering and modifying its original judgment order in the case, which included the sentence.

State v. Carlisle, Slip Opinion No. 2011-Ohio-6553

Ohio Supreme Court Law Library catalog application

The Ohio Supreme Court yesterday announced that its law library back on Dec. 6 activated a software application by which the public will now be able to access its catalog with on iPhone and iPad devices.

Mobile access can now be acquire by downloading the free mobile app, BookMyne, and then searching “Ohio Supreme Court.”

The application currently now only works on iPhones, iPads, and iPods, but Ken Kozlowski, the Supreme Court of Ohio’s Law Library director, said it is expected be available for Androids in 2012.

With a collection of nearly a half-million volumes, the Law Library is one of the largest state supreme court law libraries in the nation. In addition to providing library services to the Justices and Supreme Court staff, the Law Library also serves the state legislature, state administrative agencies, attorneys, and is the primary law library for all state agencies located in Columbus. It is also open and available to the general public, providing a full range of services to all patrons, although registration is there required.

The catalog application can be downloaded via iTunes here or thru the Library’s website here.

Ohio Supreme Court upholds death sentence for murder of Cincinnati 3-Year-Old

Ohio's supreme court has upheld the convictions and death sentence of one Lamont Hunter of Cincinnati for the 2006 rape and aggravated murder of his girlfriend's three-year-old son.

Hunter was indicted on charges of child endangerment, rape and aggravated murder with the death penalty specifications that 1) he killed the toddler in the course of committing a violent felony (rape), and 2) purposely caused the death of a child under the age of 13, the Court summarized. He entered not guilty pleas on all charges and specifications. Shortly before his trial was scheduled to begin, He hired Cincinnati attorney Clyde Bennett II to replace the two attorneys who had been appointed by the court to represent him.

Hunter subsequently waived a jury trial in favor of a trial before a three-judge panel. The court returned guilty verdicts on all charges. Following consideration of aggravating and mitigating factors during the penalty phase of the trial, the panel concluded that the aggravating factors outweighed the mitigating factors and sentenced Hunter to death on the aggravated murder charge. The court also imposed a life sentence on the rape count and eight years imprisonment on the child endangering count. Hunter’s convictions and death sentence were subject to automatic review by the Supreme Court.

State v. Hunter, Slip Opinion No. 2011-Ohio-6524

Ohio Supreme Court "limited liability" language usage

The Ohio Supreme Court this morning reported it has adopted amendments to its Government of the Bar of Ohio & Rules of Professional Conduct changing references to “partnership having limited liability” and “registered partnership” to “limited liability partnership,” effective Jan. 1, 2012.

Rules affected are Rule III, Sections 1-4, and Rule VI, Section 1, of the Rules for the Government of the Bar and Rule 1.4, Comment [8], and Rule 7.5(a) of the Ohio Rules of Professional Conduct.

The changes act to conform Supreme Court Rules to the language used in the updated Ohio Revised Code chapter and statutory references to the Ohio Uniform Partnership Act back in 2008.


View the complete text of the amendments.

Notices to Hamilton County Lawyers

As of January 1, 2012, the Hamilton County Court of Common Pleas Assignment Commissioner’s Office will no longer send post-cards to counsel with future court dates via U.S. Mail. All attorneys must register for e-mail notifications to receive future court dates via the form posted on the Court’s website under the “forms” icon or downloaded here.

also

Beginning January 3, 2012, in accordance with the newly revised Local Rules 10, 11, and 34 of the Hamilton County Rules of Civil Procedure, the Court of Common Pleas will require most civil suits to be
filed electronically with the Clerk of Courts. This requirement applies to all cases in which a case number
beginning with “A” is assigned.

Prior to filing electronically, attorneys may get information & register by logging on to http://www.courtclerk.org/efiling.asp Attorneys should register now at the Clerk’s website to prepare for the January 3rd. deadline.

Kentucky indigent defense representation

The Kentucky Bar Association’s Board of Governors unanimously adopted a resolution at its November 18th meeting endorsing findings and recommendations that call for Gov. Steven L. Beshear and the Kentucky General Assembly to immediately address and improve the system for the representation of indigents in conflict cases. (See “Report of Kentucky Bar Association Task Force on Provision & Compensation of Conflict Counsel for Indigents” attached to resolution)

The nine recommendations relate to the funding and structure of the system, their press release stated, including allocation of an additional $5.2 million to implement changes that will bring the system into compliance with the ethical and constitutional requirements of the Kentucky Supreme Court and with the professional standards set out by the American Bar Association.

Southern District of Indiana civil rule amendments

Indiana’s Southern District Court is entertaining its period for public comment thru December 15 of all Local Civil Rules of Court which, if adopted, will be effective Jan. 1, 2012.

Proposed amendments are available on the court's website here

Comments should be sent to:

Local Rule Comments
Office of the Clerk
105 U.S. Courthouse
46 East Ohio Street
Indianapolis, IN 46204

or via email to:LocalRules@insd.uscourts.gov

Federal Rule amendments

The U.S. Judicial Conference has a reminder posted that a number of amendments to the Federal Rules of Appellate, Bankruptcy, Criminal Procedure, and Evidence took effect December 1, 2011.

Congress took no action after the changes were approved by Supreme Court more than seven months earlier, allowing those amendments to these rules to now go in effect:

• Appellate Rules 4 and 40
• Bankruptcy Rules 2003, 2019, 3001, 4004, and 6003.
• Criminal Rules 1, 3, 4, 6, 9, 32, 40, 41, 43, and 49.
• Evidence Rules 101-1103

Additionally, new Bankruptcy Rules 1004.2 and 3002.1 are in effect, as well as new Criminal Rule 4.1.
More information available at their website here

New Illinois Circuit Court civil jury instructions

The Illinois Supreme Court's Committee on Jury Instructions in Civil Cases announced four revisions today:

105.01 Professional Negligence - Duty
3.03 Insurance/Benefits
3.08 Opinion Testimony
60.01 Violation of Statute, Ordinance or Administrative Regulation

Note is made that “while Illinois Supreme Court Rule 239(a) prescribes the use of Illinois Pattern Jury Instructions, an instruction is approved or rejected only after it has been judicially questioned and considered. [Powers v. Illinois Central Gulf Railroad Company, 91 Ill. 2d 375 (1982)]

A complete listing of recent civil & criminal jury instructions are posted by the Court here and here.

Supreme Court updates

Playing “catch-up” again, we’ve come across three cases before the Supreme Court we feel important.

The first is Setser v. United States, which was heard on Nov.30th. -- the Court here considering whether a federal judge may impose a sentence and direct that it be served consecutively to, or concurrently with, a term of imprisonment that is expected to be – but has not yet been – imposed in a state court for a state crime.

ScotusBlog recapped Petitioner Monroe Setser’s “having been on probation for a state drug crime when he was arrested for possessing (more) methamphetamine. That drug possession violated both federal and Texas state law. He was tried first for the federal offense and was convicted. The federal judge imposing the sentence knew that Setser was likely to receive a state sentence for the same conduct, and was also likely to have his probation revoked. The judge accordingly directed that the federal sentence would be served consecutively to any sentence imposed as a result of the probation revocation, but concurrently with any state sentence imposed for the drug possession. The question before the Court was whether the judge had the power to issue such a directive…”

The 5th. Circuit’s appeal opinion is here; Setser's petition for certiorari here; and the Brief in Opposition here. ScotusBlog posts an argument transcript here.

Martel v. Clair and Williams v. Illinois were heard by the Court yesterday – Martel being the topic of yesterday’s posting. Transcript to that case may be read here.

Williams v. Illinois, ScotusBlog referred to last Monday as “the next in the line of cases involving the Court’s more defendant-friendly interpretation of the Confrontation Clause. The question being whether the Confrontation Clause is violated if an expert testifies about the results of testing conducted by a non-testifying third party, if the report itself is not introduced at trial.

“Here, an expert testified about the results of a DNA test conducted by an analyst, but the DNA test was not admitted. The Supreme Court of Illinois held that there was no constitutional violation, but the U.S. Supreme Court granted certiorari to resolve a conflict in the lower courts over the Confrontation Clause’s application in these circumstances.”

Williams’ petition for certiorari, and Illinois’ response in opposition are here & here. That transcript is here.

A bit akin to Martel, ScotusBlog yesterday made note of the petition for Alabama v. Lane, 11-627, as “raising one or more questions that have a reasonable chance of being granted” and of future interest. The issue here is “Whether a criminal defendant, to whom the Sixth Amendment grants no right to choose which lawyer a court will appoint to represent him in the first instance, nevertheless has a Sixth Amendment right to choose continued representation by that appointed lawyer, such that a court's erroneous replacement of that lawyer is structural error requiring automatic reversal, even when substitute counsel provides effective representation and the defendant is not otherwise prejudiced.”

Alabama’s petition for certiorari

Habeas counsel & death row inmates

The question is asked, "How easy should it be for someone on death row, challenging his state court conviction or sentence in federal court, to get his court-appointed lawyer replaced by another one?"

California, supported by twenty-six states, including Ohio & Kentucky, contends that the Court of Appeals for the Ninth Circuit has made it much too easy. As the states frame the case, the question is whether the condemned prisoner is entitled to a replacement lawyer "just because he expresses dissatisfaction and alleges that his counsel was failing to pursue important evidence." (States' amicus brief )

The Supreme Court heard this case this morning.

ScotusBlog had this background preview posted last Wednesday.


Petition for certiorari
Brief in opposition

9th. Circuit’s opinion

Supreme Court resolving crack cocaine split between federal courts

“Selling cocaine in crack form used to subject offenders to the same sentence one would get for selling 100 times as much in powder,” a New York Times article from last week began. “Then the new law -- the Fair Sentencing Act of 2010 -- reduced the disparity to 18 to 1, at least for people who committed their offenses after the law became effective on Aug. 3, 2010…. But what about people who committed their offenses before the statute came into force but were not sentenced until afterward?”

The lower courts have produced split decisions almost as soon as Congress had passed the law, sometimes even within the same court. Now the Supreme Court has agreed to resolve the question.

In essence, as aptly summarized by Law.com’s Daily Report last October, “the Justice Department initially argued defendants who committed their crimes before it became law were ineligible for the new mandatory minimum rules if they hadn't been sentenced by then. Prosecutors argued the new law couldn't help those defendants because the statute didn't expressly say it applied retroactively, and that divided the lower federal courts."

The 7th Circuit sided with the government, while the 1st Circuit went the other way. (See U.S. v. Douglas)

In May, an 11th Circuit panel adopted the prosecution's view in the case of Charles Hudson, serving a 20-year mandatory minimum sentence for crack convictions out of South Florida. The unpublished decision said the panel's conclusion was mandated by language from a 2010 ruling by the 11th Circuit on the new fair sentencing law, United States v. Gomes, 621 F.3d 1343. Then, later in June, an second 11th Circuit panel went the other way in an unsigned but published opinion deciding the fate of Carmelina Vera Rojas, another South Florida drug defendant sentenced under a pre-FSA mandatory minimum, this one 10 years. While the Rojas panel didn't mention the earlier decision in Hudson's case, its June 24 opinion said that the 2010 Gomes decision didn't mandate a ruling for the prosecution because, in that case, Gomes had been sentenced by the time the Fair Sentencing Act was signed into law. The Federal Public Defender's office in South Florida, the Daily Report observed, which represents both Rojas and Hudson, had missed the deadline to ask for a rehearing in Hudson's case, but quickly asked for and was granted permission to do so based on the Rojas opinion. (Here)

Subsequent to that sequence, the 11th. Circuit now appears to be rehearing both Rojas and Hudson, with preceedings being consolidated & scheduled for in February. (Here)

The Times article is about the pair of 7th. Circuit cases -- Hill v. United States, 11-5721 and Dorsey v. United States, 11-5683, which the Supreme Court has also consolidated and will hear together – but, as ScotusBlog last Nov. 10th. has also observed, the Court may well hold Hill so that it can be considered alongside several other cases that raise the same issue including: Dorsey, Robinson v. United States, 11-5842, Fisher v. United States, 11-6096, Hyde v. United States, 11-6364, Lewis v. United States, 11-6464, and, Hernandez v. United States, 11-6602.

Ohio looking at employability blocks for ex-convicts

A Cleveland Plain Dealer article last Monday wrote of a meeting between Ohio Governor John Kasich and prosecutors, judges & lawmakers to begin exploring ways to better deal with some of the roadblocks to employment many non-violent ex-convicts recently released from prison currently face -- an issue that likely won't be too popular with many of his fellow Republican lawmakers who over the past decade passed a series of tough-on-crime laws with mandatory sentencing guidelines.

There are some "800 or so stipulations written into Ohio's constitution, laws, administrative codes and court rules – collectively referred to as 'collateral sanctions' -- that keep many former inmates from qualifying for a myriad of jobs in today’s markets," the article says and that will be looked at. "Depending on their crime, some felons cannot obtain a driver's license or a professional license to hold jobs requiring even minimal education, such as cutting hair or driving trucks. And they could be blocked from dozens of other professions, too, from banking to insurance sales to athletic training or being a pawn broker."

Gov. Kasich noted that he and State Senator Shirley Smith, who for years has fought for legislation to help convicts re-assimilate into their communities, already won't agree on eliminating what they call the "box" -- the question on most, or many, job applications that asks whether the applicant has been convicted of a felony. Many employers won't consider hiring a person who has checked the yes box to that question.

Smith wants it removed, but Kasich wants to keep it, saying employers still ought to know that a prospective employee is a felon but should be encouraged to consider other factors in deciding whether to hire the person.

Influential at this onset and point in time has been a report entitled, "Collateral consequences of criminal conviction in Ohio," authored by a group led by Lawrence Travis at the University of Cincinnati's Center for Criminal Justice Research, which surveyed "hundreds of Ohio judges, prosecutors, defense attorneys and parole officers," who generally agreed that it was time for the state's criminal justice system to address the unintended impact of some collateral sanctions.

Ohio cyber fraud legislation

The Ohio Senate passed its version of a bill aimed at strengthening the state's telecommunications fraud law yesterday. [Bill's analysis]

"In 2010, 7,304 Ohioans reported losing more than $10 million through thefts or scams involving electronic communications.," according to an Attorney General's press release yesterday. "Cyber fraud scammers often use e-commerce sites like eBay and Craigslist, social media platforms like Facebook, or telephone ruses posing as family members or telemarketers. Most local law enforcement agencies lack the resources to investigate complex cyber fraud cases; in addition, local efforts are also hindered by the fact that most cyber fraud is reported to state and federal agencies because the crimes occur over the phone or Internet.

"The legislation would complement efforts started by Attorney General DeWine in creating the Economic Crimes Division, which conducts criminal investigations within the Consumer Protection Section of his Office. After only two such cases were prosecuted in 2010, the new division indicted nine suspects in several counties for more than 35 felonies committed against Ohio consumers. The division also has over 40 further investigations still pending."

Senate Bill 223, introduced back in September, is companion legislation to House Bill 329.

New Ohio Supreme Court writing-citation manual released

The Ohio Supreme Court has issued a new comprehensive writing/citation manual to be applied in its opinions starting Jan. 1, 2012. The new guide replaces the original "Manual of Citations",issued in 1985, the May 2002 "interim version", and a subsequent later revision.

“Divided into three parts,” the Court’s announcement says, “the new manual contains guidance on proper citation format for opinions, cases, and statutes in Supreme Court opinions; proper style for Supreme Court opinions; and a new section with examples on how to structure an opinion.”

Several significant changes are noted, including:

• The federal circuits are now identified using “Cir.,” e.g., 6th Cir. instead of C.A.6.


• Federal statutes are now cited using “U.S.C.,” e.g., 42 U.S.C. 1982 instead of Section 1982, Title 42, U.S. Code.


• Ohio case citations no longer include Ohio Bar Reports (OBR) or Ohio Opinions (O.O., O.O.2d, O.O.3d).

Manual instructions also cover how to cite opinions before and after May 1, 2002, when the Supreme Court began posting all opinions online.

New Writing Manual (PDF)

Ohio bench - jury trial legislation

The Cleveland Plain Dealer, last weekend, carried a story about former Summit County prosecutor Lynn Slaby, who is now a state representative, introducing a bill last month by at the urging of the Ohio Prosecuting Attorneys Association that would change Ohio law to give themselves veto power when a criminal defendant chooses to have his case heard by a judge instead of a jury. [See text and analysis of HB 265, introduced June 14, 2011]

The Ohio Judicial Conference, which opposes the bill, notes that its recent impact statement that “Ohio is one of twenty-one states granting criminal defendants the right to choose whether they will be tried by jury or by the judge, and does not require the consent of the prosecuting attorney to waive jury trials. The remaining 29 states, the Federal system, and Washington D.C. require the consent of the prosecuting attorney in order to waive trial by jury.

The Judicial Conference’s impact statement also briefs some relevant case history, including the Ohio Supreme Court’s upholding the validity of then General Code 13442-4 that in all criminal cases pending in state courts of record in this state, the defendant shall have the right to trial by jury, and may, if s/he so elects, be tried by the court without a jury… [ State v. Smith, 123 O St. 237 (1931)] [General Code 13442-4 is now ORC § 2945.05; See also §2945.06 with respect to “Procedures for trial by court" ]

The Judicial Conference also addressed the federal aspect, noting that in Singer v. United States, the U.S. Supreme Court examined whether a criminal defendant in a federal criminal case has an unconditional constitutional right to a trial by jury, and whether there was also a correlative constitutional right for a criminal defendant to have is/her case decided by the judge alone if s/ he considers such a trial to be to her/ his advantage. [ Singer v. US, 380 US 24 (1965)]. The Court held that there is no constitutional or federally recognized right to a criminal trial before a judge sitting alone, and, citing Patton v. United States, reaffirmed their previous holding that a defendant can waive the right to trial by jury. [ Patton v. US 281 US 276 (1930)].

Ohio Supreme Court juvenile sex offender cases

A Newark Advocate article last week describes the Ohio Supreme Court’s decision to review whether “requiring a 17-year-old boy to register as a sex offender for touching girls' breasts violates the constitutional protection against cruel and unusual punishment.

In the case pursuant a 17-year-old boy was found delinquent of sexual imposition and disorderly conduct, both the equivalent of misdemeanor offenses back in July 2010, according to the article. He had been expelled from high school, but was then also required to register as a Tier I sex offender for the next 15 years. His attorney thinks that’s “cruel & unusual punishment.” [ Memorandum in support ]

The Advocate’s article indicated that this case, from Licking County, is “joining a number of other cases disputing how sex offender registration is applied to juveniles here in Ohio.” The Court heard arguments on an Athens County case last February addressing the application of In re Smith (2008-1624), In re Adrian (2009-0189); and State v. Bodyke (2008-2502) as they may apply to juveniles and the “public registry-qualified juvenile offender registrant” (PRQJOR) provisions of Senate Bill 10, now codified at ORC § 2152.86. The Athens County case will set guidelines for the state’s future considerations. (Court's Acceptance)

In way of review, Bodyke, in 2010, found that portions of Senate Bill 10 (Ohio’s “Adam Walsh Act”), authorizing the attorney general to reclassify sex offenders, were unconstitutional. State v. Williams, this past summer, extended that to retroactive provisions of registration and community notification. In re Smith and Adrian had both dealt with retroactivity and were remanded for consideration in light of Williams.

Ohio Supreme Court -- Attorney General initiatives

Two major initiatives were announced by the Ohio Supreme Court and Ohio Attorney General last week.

The first was Ohio Supreme Court Justice Evelyn Stratton and Attorney General Mike DeWine’s announcing that the Court’s 10-year old Advisory Committee on Mental Illness and the Courts (ACMIC) is being evolved into a new, combined-effort, Task Force on Criminal Justice and Mental Illness, allowing expansion into areas beyond everyday realm of the court system. ( Columbus Dispatch )

The ACMIC, was initially tasked with developing solutions for the “revolving door issue of persons with mental illness trapped in the criminal justice system,” the Attorney General’s press release stated. “In the past 10 years, ACMIC has helped establish 37 mental health courts, promoted the training of 4,580 crisis-intervention team officers in 76 of 88 counties, made recommendations for changes to Medicaid, and advocated for a new Juvenile Competency Statute.” (See ACMIC’s web page for much more)

Attorney General DeWine and Justice Stratton also collaborated on the Mentally Ill Offender Treatment and Crime Reduction Act (MIOTCRA) at the national level when Attorney General DeWine was a U.S. senator. The MIOTCRA program helps identify, treat and supervise persons with mental illness who otherwise would cycle in and out of the justice system.

Second was the Attorney General’s Office’s announcement of “a bold new ‘Crimes Against Children Initiative,’ comprehensive plan to protect Ohio's children from sexual predators.” ( Here )

That new undertaking creates a "Crimes Against Children Unit" at the Bureau of Criminal Investigation (BCI), which will investigate child predator cases and, along with the Ohio Peace Officer Training Academy (OPOTA) provide specialized training to Ohio law enforcement.

Two attorneys within the Attorney General's Special Prosecutions Unit will address crimes against children exclusively, thereby providing valuable resources to local officials who will be able to tap their assistance in the prosecution of predator cases.

Finally, an internal “rapid response team” addressing issues spawn from sex crimes committed against children will be put together. The team will include child victim advocates, special prosecutors, and agents from BCI. The Rapid Response Team will respond to victims in the field, partnering with local medical experts as needed.

Title Insurance Challenge May Set Consumer Protection Precedent

The Cleveland Plain Dealer had an article this past weekend about a lawsuit filed by a 41-year-old teacher's aide against First American Financial Corp., which alleges her $455.53 title insurance purchase in 2006 resulted from an illegal kickback scheme, which has evolved into a far-reaching consumer-rights dispute that the U.S. Supreme Court will be hearing on Nov. 28.

In 2006, Denise Edwards’ title company had agreed to steer almost all its title insurance business to First American Financial Corp. in exchange for a $2 million payment years before that bought a minority share in the agency. First American contends plaintiff has no legal standing to sue it for violating the Real Estate Settlement Procedures Act (RESPA) of 1974, in that the insurance steering didn't hurt Edwards because all title insurance policies cost the same amount of money in Ohio when she bought her three-bedroom house.

Legal experts, the article says, say a decision against that plaintiff could weaken a broad range of consumer protection statutes, curtail class-action suits, and have implications for everything from copyright to credit reporting law, where financial harm to the aggrieved can be hard to prove.

Briefs supporting First American argue that allowing lawsuits by people who haven't suffered damages encourages potentially bankrupting class-action cases (i.e. Here). The Federal government, consumer groups and attorneys general from 11 states have filed legal briefs that take Edwards' side, saying that inside dealing of the sort Edwards experienced damages consumers and that lawsuits like hers are needed to ensure that companies comply with consumer protection laws.

ScotusBlog posted a review of the case ( Here) last Friday, and has additional information and filings (Here)

Ohio Supreme Court sex offender case

Last July the Ohio Supreme Court in State v. Williams held that "imposing enhanced sex offender registration and community notification requirements included in the 2007 Ohio Adam Walsh Act (AWA) against defendants whose crimes were committed before the effective date of that law violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly from enacting retroactive laws." (See Court summary)

In Williams, prior to his sentencing hearing, Williams entered a motion asking the trial court to sentence him under the Megan's Law sex offender classification scheme that was in effect on the date of his offense, rather than under the AWA classification scheme. The trial court overruled Williams' motion. Williams appealed, arguing that the retroactive application of the AWA registration requirements to his offense violated the ex post facto, due process and double jeopardy clauses of the U.S. Constitution and the retroactivity clause of the Ohio Constitution. The 12th District Court of Appeals had affirmed the trial court's classification of Williams under the AWA as constitutional. Ohio Attorney General Mike DeWine and Warren County Prosecutor David Fornshell petitioned the Court for a reconsideration and/or clarification of its decision that same week. That was unceremoniously denied in September. ( Ohio’s Megan Law )( Adam Walsh version )

But we're not done with sex offender retroactivity issues here in Ohio yet; the Court heard yet another appeal of this same nature last Tuesday.The case this time was State v. Palmer, in which a 46-year old man was convicted of sexual battery in 1995, served out his sentence and was released before Ohio's first sex offender registration statute, Megan's Law, went into effect, but is still being required to register as a sex offender.

Palmer's position is that "At the time of his sentencing, Ohio's sexual offender registration system was the law created by the General Assembly when it enacted Ohio's version of Megan's Law in 1996. Am.Sub.H.B. No. 180, 146 Ohio Laws, Part II, 2560, 2601. Megan's Law provided for offender registration, classification, and community notification. But under that law, 'a person whose prison term for a sexually oriented offense was completed before July 1, 1997, is not required to register under R.C. 2950.04(A)(1)(a) or periodically verify a current address under R.C. 2950.06(A)[.]'" State v. Champion, 106 Ohio St.3d 120, 2005-Ohio-4098 at 113…. He completed his sentence before July 1, 1997, and so had no duty to register or verify his address under that earlier legislation"

The State's opposing view is that "The unqualified language of R.C. 2950.04(A)(2) applies the registration duty to all offenders who were convicted of sexually oriented offenses, regardless of when the offense or conviction occurred. Language in prior versions of the statute tying the registration duty to the date of the sentencing hearing or release from prison has been deleted, thereby rendering the holding of State v. Champion, 106 Ohio St.3d 120, 2005-Ohio-4098, inapposite…

"Insofar as appellant uses the first proposition of law to contend he has a separation of-powers defense to application of new law to him, appellant notably does not explain how he would fit within the holding of State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424. Bodyke's separation-of-powers holding only applies when there has been a prior judicial classification, and appellant does not claim that any judge classified him previously. Indeed, his main argument has been that he was not even subject to Megan's Law, which is consistent with the view that no judge ever classified him. As appellant's conviction predated the effective date of Megan's Law, the sentencing judge made no reference to sex-offender registration status. Appellant simply does not benefit from Bodyke, and there is no prior judicial classification to 'reinstate.'"

Ohio death penalty review task force charged

The task force being convened by the Ohio Supreme Court to review the administration of Ohio's death penalty procedures received its charge from Supreme Court Chief Justice Maureen O'Connor yesterday morning. (Court's Announcement)

Chief Justice O'Connor reiterated during her opening remarks that "It should be made perfectly clear from the outset that this task force is not being asked to make a judgment on whether Ohio should or should not have the death penalty….. What you are being asked to do is provide to the Court and the state bar guidance on the current laws on the subject, the practices in other jurisdictions, the data, the costs, and many other aspects associated with the death penalty."

A cooperative effort between the Supreme Court and the Ohio State Bar Association, the Joint Task Force is chaired by retired Second District Court of Appeals Judge James A. Brogan and is made up of another 21 judges, prosecuting and defense attorneys, lawmakers, and law professors. (See Court's earlier announcement)

Judge Brogan in his remarks raised several initial questions for the group to whet their considerations, including whether the standard of proof in death penalty should be "beyond all doubt" instead of "beyond a reasonable doubt" as in other criminal cases.

Other discussions centered around prosecutorial discretion in seeking the death penalty and the extent to which the economics of a given county impacted how prosecutors made their decision, and whether discovery in death penalty cases should be made different than in ordinary criminal cases.

Additionally, Judge Brogan asked whether death penalty cases deemed disproportional to other cases that did not include the death penalty, should be set aside on appeal.


An Associate Press article yesterday also noted some of Ohio’s laws governing when and how the death penalty can be imposed, including alternate sentences and appeals issues, goes back to 1981.

Ohio HB 86 (aside)

Delaware County's law library brought an almost 110-year old case to our attention yesterday morning with respect to questions being raised with respect to Ohio HB 86 issues.

In re Kline, 70 Ohio St. 25 (1904) Where a statute defining a crime and prescribing the punishment is repealed before the final judgment in a prosecution there under, such repeal forecloses all further proceedings, unless a contrary intent appears in the repealing statute; but, when the repeal occurs after final judgment, it does not vacate or modify the judgment, or render it invalid.

Ohio Sentencing HB 86 Questions & Review

At once being described as landmark legislation being the first substantive revision & updating of Ohio sentencing law in 15 years, recently enacted HB 86 has also generated its share of concern, apprehension, and confusion as well – So much so that the General Assembly and Ohio Criminal Sentencing Commission are being reported as being in the process of weighing those changes even as the corrections overhaul goes into effect.

Ohio Capital Connection’s Hanna Report last Wednesday commented that "Concerns voiced by the Ohio Supreme Court, Ohio Department of Rehabilitation and Correction (DRC), trial judges, law enforcement, and other interested parties since its passage in June range from technical discrepancies with major repercussions to larger constitutional questions around separation of powers and rights of the accused," and a Supreme Court announcement that same day reported "Judges and lawyers across the state's now studying how House Bill 86 changes the way they issue sentences in criminal cases and learning about the new law through training seminars..."

Sentencing Commission minutes from its last meeting addressed some of those perceived problems along with the Commission’s initial responses. (See Here)

The Sentencing Commission has also issued its summary of 2011 Changes to Criminal & Juvenile Law, and Felony Sentencing and Drug Offense Quick Reference Guides.

Elsewhere:

• The full text of HB 86 is 420 pages with a 140-page analysis by the Ohio Legislative Commission.

• The Ohio Judicial Conference issued summaries on the bill generally (here), Juvenile Justice Provisions more specifically (here), and an outline of Changes in Juvenile Bindovers (here)

• The Ohio Public Defender’s website has a summary by the Franklin Public Defender’s Office posted

• The Ohio Prosecuting Attorneys Association has a briefing on major Fully Retroactive H.B. 86 Changes to Judicial Release

Ohio Supreme Court advisory opinions

The Ohio Supreme Court's Board of Commissioners on Grievances & Discipline this past October 7th. for the first time addressed Professional Conduct Rule 5.5 (Unauthorized practice of law; multijurisdictional practice of law), which took effect back in 2007, deciding that "out-of-state debt settlement lawyers are not authorized to provide legal services on a temporary basis to Ohio clients."

Section (c) of the rule contains "safe harbors" that permit an out-of-state lawyer to provide legal services in Ohio temporarily, the Board said, but, in applying the "reasonable relationship" factors found in the comments to Rule 5.5, concluded that allowing the multijurisdictional practice at issue would not serve the interests of clients and public when the "matters are not connected to the lawyers' home state of admission, there is not a pre-existing relationship between the lawyers and the Ohio clients, and the lawyers do not have a recognized expertise in a particular body of federal, nationally-uniform, foreign, or international law that is applicable to the consumer debt matters." [ Announcement and Advisory Opinion 2011-2 ]


Also on October 7th., the Court's Board on the Unauthorized Practice of Law outlined activities non-attorneys can and cannot engage in concerning Medicaid benefits.

Opinion UPL 11-01 says in essence non-attorneys may review documents, prepare and file Medicaid applications and attend state hearings on behalf of an individual "to the extent that those activities are authorized by federal law," but draws the line for non-attorneys at performing "Medicaid planning" for current and prospective nursing-home patients and/or their families regarding qualification for Medicaid benefits "if it requires specialized legal training, skill, and experience." [Announcement]

Ohio Supreme Court Traffic Rule amendment

The Ohio Supreme Court is also accepting public comment on a proposed amendment to Ohio Traffic Rules that clarifies the authority of traffic violations bureaus.

The proposed addition to Rule 13(B)(4) states that driving while under suspension or revocation of a driver’s or commercial driver’s license cannot be processed by a traffic violations bureau "when jail is a possible penalty."

Text of Proposed Amendment

Submitted comments in writing to:

Jo Ellen Cline, Government Relations Counsel
Supreme Court of Ohio
65 S. Front St., Seventh Floor
Columbus, Ohio 43215
or
j.cline@sc.ohio.gov.

Ohio Supreme Court seeking comments on Rule of Practice & Procedure amendments

The Ohio Supreme Court will accept public comment until Nov. 22 on amendments to annual updates to the Rules of Practice and Procedure recommended by the Supreme Court Commission on the Rules of Practice and Procedure.

The Court's announcement last Friday says that the proposed amendments concern changes to the state’s rules of appellate procedure, civil procedure, criminal procedure, juvenile procedure and rules of evidence, many of which target inconsistencies, allow for electronic means of service, remove outdated concepts, or move certain rules to other sections that make more sense. There are, however, a few new rules proposed.

-- Civil Procedure Rule 65.1, for instance, has been proposed regarding civil protection orders. Currently, existing civil rules governing protection order proceedings and the requirements and purposes of two Ohio Revised Code statutes are in conflict. "Sections 3113.31 and 2903.214 of the Ohio Revised Code," the amendment brief states, "establish special statutory proceedings for obtaining domestic violence, stalking, and sexually oriented offense civil protection orders. Both statutes state that the proceedings 'shall be conducted in accordance with the Rules of Civil Procedure.' However, the civil rules governing magistrates, discovery, and other procedures applicable to civil actions in general interfere with the process and requirements set out in the statutes. It is difficult, if not impossible, to apply the existing civil rules in these protection order proceedings and still comply with the requirements and purposes of the statutes.

"The legislature has also adopted R.C. 2151.34, a statute dealing with civil protection orders against a minor. This statute must also be addressed in drafting a new rule because, like the other two statutes, it states that the proceedings 'shall be conducted in accordance with the Rules of Civil Procedure.'

" The procedures for obtaining the protection orders provided by these three statutes are designed for the benefit of pro se parties and the orders are generally sought pro se—a significant consideration in drafting the proposed rule."


Another new rule – Juvenile Procedure Rule 5 – has been proposed to require juvenile courts to use a juvenile's initials rather than his or her full name in court decisions and press releases.

A clean-up amendment to Juv. R. 22 is also proposed. "The current rule requires the filing of a motion for discovery within ten days of appearance of counsel which leaves little time for the juvenile’s defense to file a request for discovery, for the prosecutor’s office to comply, and a subsequent motion for discovery to be filed. Although the rule allows for the court to extend time for making prehearing motions in the interest of justice, if the rule is strictly adhered to, the defense may be out of time to file a motion legitimately certifying that the request was refused The proposed amendment will provide more workable timelines and consistency of notice in these circumstances."


Text of Proposed Amendments

Comments should be submitted in writing to:

Jo Ellen Cline, Government Relations Counsel
Supreme Court of Ohio
65 S. Front St., Seventh Floor
Columbus, Ohio 43215
Or via e-mail to j.cline@sc.ohio.gov.

Gallup Poll has 35% opposing death penalty

A new Gallup poll released this morning indicates that more than one-third of Americans now oppose the death penalty — the highest level in nearly 40 years.

USAToday reports that the poll found that 35% of those polled oppose the death penalty — the highest opposition since March 1972 --- "moreover, those who believe the death penalty is being applied fairly, and those who say it isn't used often enough, are at the lowest levels in a decade, underscoring significant changes in those attitudes."

The Gallup poll was conducted shortly after two controversial cases drew national attention: Troy Davis’ execution in September, and last week's Supreme Court hearing involving Alabama death row inmate Cory Maples.

"Recent years have seen renewed controversy over the death penalty's use," the poll reported, "including the 2010 execution of Teresa Lewis in Virginia, the first woman to be executed in that state in almost 100 years, and the execution of Davis in September of this year. It is not clear whether the death penalty will be an issue in next year's presidential race, although Texas Gov. Rick Perry was asked in a recent Republican debate about his state's status as the most frequent in carrying out the death penalty.

"A separate trend question, not asked this year, explicitly offers respondents the opportunity to choose between the death penalty and life imprisonment with no possibility of parole, and last year's update found about half of Americans preferring the latter option. On the other hand, Gallup has found support for the use of the death penalty rising when Americans are asked about specific cases involving high-profile mass killings, such as the Oklahoma City bomber, Timothy McVeigh."


Meanwhile, here in southwestern Ohio, USAToday also reported that Democratic State Reps. Ted Celeste of Columbus and Nickie Antonio of suburban Cleveland are asking Gov. John Kasich for a moratorium on Ohio executions while a recently appointed Supreme Court committee studies the state’s death penalty provisions. The two co-sponsor House Bill 160 – the “Execute Justice” bill – that would do away with capital punishment in Ohio. ( See Press Release )

The 20-member task force convened by the Supreme Court and the Ohio State Bar Association, will consist of judges, prosecuting attorneys, criminal defense lawyers, lawmakers and academic experts, who will review Ohio's current laws, practices elsewhere, data and costs, as well as a 2007 report released by the American Bar Association that called for a moratorium while problems the report said it had identified were examined. ( Report )( executive summary )

Third Circuit "crack sentencing" conflict cases

Law.com’s Daily Report yesterday morning carries word of “the full 11th U.S. Circuit Court of Appeals last week deciding to take up a question about the scope of a 2010 federal statute designed to reduce the disparity between crack and powder cocaine sentences. The court's decision to use its power of en banc review—usually doled out sparingly—is remarkable because the government has signed on to the defense position in the cases to be reheard.

"At issue,” the article continued, “is a category of defendants who committed drug crimes before President Barack Obama signed the federal Fair Sentencing Act into law on Aug. 3, 2010—but weren't sentenced until after the bill became law.

“Although Attorney General Eric H. Holder Jr. supported the bill, the Justice Department initially argued defendants who committed their crimes before it became law were ineligible for the new mandatory minimum rules if they hadn't been sentenced by then. Prosecutors argued the new law couldn't help those defendants because the statute didn't expressly say it applied retroactively.”

In May, an 11th Circuit panel adopted the prosecution's view in the case of Charles Hudson, serving a 20-year mandatory minimum sentence for crack convictions out of South Florida. The unpublished decision said the panel's conclusion was mandated by language from a 2010 ruling by the 11th Circuit on the new fair sentencing law, United States v. Gomes, 621 F.3d 1343. [US Supreme Court certiorari denied Apr. 4, 2011 ] Then in late June, a second 11th Circuit panel went the other way in an unsigned but published opinion that was to decide the fate of Carmelina Vera Rojas, another South Florida drug defendant sentenced under a pre-FSA mandatory minimum, this one 10 years. While the Rojas panel didn't mention the earlier decision in Hudson's case, its June 24 opinion said that the 2010 Gomes decision didn't mandate a ruling for the prosecution because, in that case, Gomes had been sentenced by the time the Fair Sentencing Act was signed into law.


The majority of federal appeals courts have followed Gomes in holding that the Federal Sentencing Act was not retroactive. A conflict in 3rd. Circuit cases was qualified this past August with that Court’s foootnoted proviso in United States v. Dixon, 648 F.3d 195, 2011 U.S. App. LEXIS 16374 (3d Cir. Pa. 2011):

"As a threshold issue, we determine that our previous decision in United States v. Reevey, 631 F.3d 110 (3d Cir. 2010), upon which the District Court relied, does not resolve the question presented in this appeal. When considering whether a law applies retroactively, the question is always “to whom”? In Reevey, we held that it did not apply retroactively to the group comprised of defendants who committed their crimes and who were sentenced before the Act was enacted. In doing so, we joined every Court of Appeal to consider the issue. See United States v. Doggins, 633 F.3d 379, 384 (5th Cir. 2011); United States v. Bell, 624 F.3d 803, 814-15 (7th Cir. 2010); United States v. Brewer, 624 F.3d 900, 909 n.7 (8th Cir. 2010);
United States v. Carradine, 621 F.3d 575, 580 (6th Cir. 2010); United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir. 2010); United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir. 2010) (per curiam). The “to whom” question here is different. The issue in this case is whether the FSA applies to the separate group of defendants who committed their crimes before the Act was enacted, but who were sentenced afterwards. We specifically abstained from answering this question in Reevey. 631 F.3d at 115 n.5 (distinguishing a defendant in Dixon’s position from Reevey because Reevey, unlike Dixon, committed his crime and was sentenced before the FSA was enacted). Our answer to the question whether Congress intended to apply the FSA to one group – defendants in Reevey’s position – has no bearing on whether Congress intended to apply the FSA to another – defendants in Dixon’s position. See United States v. Fisher, 635 F.3d 336, 339 (7th Cir. 2011) (concluding that a case similar to Reevey did not control whether the Act applies to defendants like Dixon)".

Akron, Ohio's Domestic Violence Court

The first court in the state of Ohio devoted exclusively to handling felonies stemming from domestic violence issues opened in Akron last Monday with its first 15 cases. Summit County Common Pleas Court Judge Paul Gallagher, who’ll preside over the new court, told the Akron Legal News he expects to handle at least 350 cases a year.

"The goal of this court is to hold offenders accountable, increase the safety of victims and ensure consistency in the way these cases are handled," Summit County Prosecutor Sherri Bevan Walsh said in a USAToday article this morning. "This is not a diversion program. Our ultimate goal is to stop the cycle of violence."

Offenders who have at least two misdemeanor domestic violence charges from a municipal court will move to the common pleas domestic violence court. The second offense is a 4th degree felony and the third offense is a 3rd degree felony. The Summit County's prosecutor's office indicted 353 felony cases last year. Judge Gallagher said he expects to have a steady docket of at least that many or more.

Quite often victims will recant, Gallagher said in the Akron News article, in part because of dependency issues. "Trials are also interesting to jurors -- to hear on a 911 tape 'he's going to kill me,' then on stand have them say he's the picture of a near-perfect spouse. To hear women recant is hard to understand, so we often have experts in these issues come in and explain, to the jury, why women recant."

"Everybody charged with domestic violence is screened through normal plea negotiations with the prosecutor's office," he said. "I agree with their philosophy, that just because a victim recants, that doesn't mean the case would go away." The prosecutor's office in Summit County has been very successful in prosecution even when victims recant, he added.

Coincidentially, The Columbus Dispatch last week reported the Ohio Supreme Court's hearing oral arguments that same day on a domestic violence case that could have wide-reaching affect across the state. There, the Cuyahoga County prosecutor's office wants the high court to instruct judges across the state to consider calling accusers to the stand in domestic-violence cases, which would give prosecutors a chance to cross-examine them on statements and complaints made to police before they then refused to testify. ( Memorandum in support of jurisdiction ) Our post last Thursday has more.

Ohio Supreme Court seeking public comment on "limited liability" language

The Ohio Supreme Court is accepting public comment on proposed amendments designed to conform the Court’s Rules for the Government of the Bar of Ohio and the Ohio Rules of Professional Conduct to the language now updated in the Ohio Revised Code and statutory references to the Ohio Uniform Partnership Act. (Announcement)

From the amendment’s background:

Gov. Bar Rule III authorizes lawyers to practice through legal professional associations, corporations, legal clinics, limited liability companies, and partnerships having limited liability. Regarding partnerships having limited liability, Gov. Bar Rule III references both Chapter 1775 and section 1775.62 of the Revised Code as the applicable statutory provisions. However, the General Assembly repealed R.C. Chapter 1775 in its entirety effective January 1,2010, and replaced it with R.C. Chapter 1776, the Ohio Uniform Partnership Act. R.C. Chapter 1776 now governs the creation of partnerships having limited liability. Accordingly, the proposed amendment to Gov. Bar Rule III adds citations to R.C. Chapter 1776. To cover partnerships formed under prior law, the general reference to R.C.Chapter 1775 remains. The citation to R.C. 1775.62 is changed to R.C. 1776.82, which now controls the designations of limited liability partnerships.

Written comments on the proposed amendments to Rule III, Sections 1-4, and Rule VI, Section 1, of the Supreme Court Rules for the Government of the Bar of Ohio and Rule 1.4, Comment [8], and Rule 7.5(a) of the Ohio Rules of Professional Conduct must be received no later than November 8, 2011 and submitted to:

Michelle A. Hall, Senior Staff Counsel
Board of Commissioners on Grievances and Discipline
65 South Front Street, 5th Floor
Columbus, Ohio 43215-3431
or via e-mail to: michelle.hall@sc.ohio.gov

Burglars' tipoff leads to California child porn arrest

CNN this morning carries a report about a central California man’s being arrested for possession of child pornography, thanks to a tip from burglars who robbed the man's property in the first place, authorities said.

Two juveniles broke into the man’s barn and stole approximately 50 CDs they believed were blank, according to the article. Some weren’t, but rather contained pornographic images of children.

Despite having obtained the CDs under decidedly shady circumstances, the pair decided to inform police…. A search warrant was served and three more computers, along with three laptops and several external hard drives were seized.

The man admitted possessing the CD pornography, but has refused to say whether there is more on any of the computers. He was booked for possession of child pornography and posted $25,000 bail.

The two burglar suspects were not arrested, but their case has been sent to the Merced County District Attorney's Office for review.

Ohio Supreme Court domestic violence case

The Columbus Dispatch yesterday had an article about the Ohio Supreme Court's hearing oral arguments Tuesday morning about a case that could affect some domestic-violence prosecutions across the state.

In an altogether common problem alleged victims of domestic violence eventually recant what they told police and decide not to testify against their husbands or boyfriends. The Cuyahoga County prosecutor's office wants the high court to instruct judges to consider calling accusers to the stand in domestic-violence cases, which would give prosecutors a chance to cross-examine them on statements and complaints made to police before they then refused to testify. (Memorandum in support of jurisdiction )

"Until the decisions of the United States Supreme Court in Crawford v. Washington (2004), 541, U.S. 36, 124 S.Ct. 1354, and Davis v. Washington (2006), 547 U.S. 813, 821, 126 S.Ct. 2266," Cuyahoga’s petition read, "prosecutors had some latitude to introduce hearsay in accordance with the applicable evidentiary rules. In the aftermath of those decisions, it is nearly impossible to prove a domestic violence case when the complaining witness recants before trial….. Evid. R. 614(A) offers some hope. The rule allows the court to call the victim as its witness, affording the prosecutor the ability to cross-examine the victim on his or her prior statement and subsequent recantation., (but) as the facts of this case demonstrate, trial judges unaccustomed or openly hostile to the rule can place it out of reach, foreclosing any reasonable hope for proving a recanting-victim domestic violence case…"

Citing the 2003 Lake County case, State v. Sealey, Cuyahoga pointed out "the court's authority to call a witness pursuant to Evid. R. 614(A) is within its inherent authority, and should be exercised in fulfillment of its fundamental duty to arrive at the truth," and posits that "a review of Ohio decisional law by the undersigned reveals no other court that requires specific proof of a threat as a prerequisite to use of Evid. R. 614(A)."

Ohio Supreme Court's review of denial of new trial based on new evidence

The Ohio Supreme Court on Tuesday held that "in a case where a death penalty has been imposed, the state's intermediate courts of appeals have jurisdiction to review a ruling by the trial court denying the defendant's motion for a new trial based on newly discovered evidence, and also that a trial court has jurisdiction to decide a defendant's motion for a new trial based on newly discovered evidence even after the defendant’s death sentence has been affirmed on appeal by the Supreme Court of Ohio." [ State v. Davis ][ court’s summary ]

In particular the question here was "whether an intermediate court of appeals had jurisdiction to review a trial court's ruling on a new trial motion in a capital case, in light of a 1994 amendment to the state constitution that eliminated intermediate appellate review of death penalty cases in favor of direct review by the Supreme Court."

Justice Judith Ann Lanzinger noted in considerations that "among the state's 12 appellate districts, only the 11th District, appears to have reviewed that question: a) barred intermediate appellate review of a postconviction motion for a new trial in a death penalty case, or b) barred a court of appeals only from hearing the appeal of a final judgment in which a trial court actually imposes a death sentence."

On discussing that case, State v. Jackson from last year, Justice Lanzinger stated "the court concluded that '[Section 3(B)(2), Article IV, Ohio Constitution] refers expressly to a specific judgment that a court of appeals does not have the authority to review; i.e., the final sentencing judgment which sets forth the order regarding the imposition of the death penalty. Given the narrowness of the jurisdictional exception in Section 3(B)(2), logic dictates that the provision was not intended to totally deprive a court of appeals of all authority to review a final judgment stemming from a case in which the death penalty was imposed. Rather the wording of Section 3(B)(2) supports the conclusion that an appellate court has the jurisdiction to review final judgments rendered in such a proceeding, except for the entry containing the weighing exercise which leads to the imposition of the death sentence.'" (also see State v. Jackson initial appeal @ 2010 Ohio 1270)


Of the second aspect – "a trial court's retaining jurisdiction to consider a post-conviction motion for a new trial under Crim.R. 33(B) after a defendant’s death sentence has been affirmed on appeal"-- Justice Lanzinger distinguished this circumstance from the issue analyzed in the supreme court's 1978 decision in State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, where, she noted, a trial court improperly allowed a defendant to withdraw his earlier guilty plea and granted him a new trial after a court of appeals had reviewed and specifically affirmed the validity of that plea in upholding the defendant’s convictions. In this case, Justice Lanzinger observed, Davis' motion for a new trial was based on new postconviction evidence challenging the validity of DNA testimony, evidence that was not part of the trial record reviewed by the Supreme Court when it upheld Davis’ convictions and death sentence on direct appeal.