Ohio sex offender registry clarification asked

Attorney General Mike DeWine and Warren County Prosecutor David Fornshell are asking the Ohio Supreme Court to clarify its decision in State v. Williams last week that struck down parts of the state's sex-offender law that had been applied retroactively to crimes committed before the law took effect in 2008.

In a motion to “reconsider and/or clarify” the state’s officials say "It’s genuinely unclear what the court meant to do doctrinally, and that confusion has significant consequences,” an article in yesterday’s Columbus Dispatch said. “That confusion, in part,” the article said, was because the justices in the majority ‘entangled’ federal and state constitutional law.”

The state of Nebraska, too, is being sued over changes made to rules for inclusion in its sex offender registry last year. “It used to be risk-based,” an ABC News article Monday said, “meaning if an offender was deemed low-risk, his or her name wouldn't be made public. Those who were likely to reoffend were placed on the registry…. Now, anyone convicted of a crime with a sexual element is on the Internet-based registry for everyone to see, and that has plaintiffs arguing that the new law should not be retroactive to those who weren't initially on the registry because they were considered low-risk.”

State Sen. Pete Pirsch, who introduced and sponsored LB 285, said the old system was flawed because it was based on subjective assessments where, he said, the law should be based on objective, scientific fact.

Pirsch also told ABC News that “the lion's share of these moving parts that were in LB 285 have been in place in other states and have been tested and have been upheld in terms of constitutionality," but the article also referred to the Ohio case, above’s ruling that the state unfairly increased punishment on people whose crimes happened before the law took effect.

Supreme Court’s summary of State v. Williams
State v. Williams, Slip Opinion No. 2011-Ohio-3374

3rd. Circuit OKs DNA Collection on Arrest

Referring to DNA profiling samples are "fingerprints for the 21st century," a sharply divided 3^rd Circuit Court of Appeals ruled that the government has the right to routinely collect DNA samples from anyone who is arrested for inclusion in a national database., yesterday.

The case had been a challenge to the constitutionality of federal statute enacted as part of the DNA Analysis Backlog Elimination Act of 2000, amended in 2006 to permit the collection of DNA samples from individuals who are arrested, facing charges, or convicted [ 42 U.S.C. § 14135a(a)(1)(A) and implementing regulation @ 28 CFR §28.12 ]

An article in The Legal Intelligencer this morning reported that the ruling overturns a November 2009 decision by U.S. District Judge David S. Cercone of the Western District of Pennsylvania that held prosecutors cannot, without a warrant, routinely collect DNA samples from arrestees for inclusion in a national database. Other courts – along with the 3^rd. Circuit -- have already held that those convicted of certain crimes may be subjected to DNA sampling, but Cercone said that he found "no compelling reason to unduly burden a legitimate expectation of privacy and extend these warrantless, suspicionless searches to those members of society who have not been convicted, are presumed innocent, but have been arrested and are awaiting proper trial." ( District Court holding )

Writing for the 3^rd. Circuit this time around, though, Circuit Court Judge Julio Fuentes’ majority opinion said “"DNA profiling is simply a more precise method of ascertaining identity and is thus akin to fingerprinting, which has long been accepted as part of routine booking procedures… Because they developed pursuant to the DNA Act function as 'genetic fingerprints' used only for identification purposes, arrestees and pretrial detainees have reduced privacy interests in the information derived from a DNA sample," ( 3^rd. Circuit’s holding )

Circuit Judge Marjorie O. Rendell, writing in dissent, complained that "collecting and analyzing DNA is much more intrusive than either fingerprinting or photographing, and believes the privacy rights of arrestees ‘are not so weak as to permit the government to intrude into their bodies and extract the highly sensitive information coded in their genes.’”

Ohio court interpreter rule

The Ohio Supreme Court announced adoption, yesterday, of a new rule that "would require courts to hire a certified foreign language or sign language interpreter, when available, to ensure the 'meaningful participation' of deaf and limited English proficient individuals in court proceedings." The rule takes effect on Jan. 1, 2013.

The late, former Chief Justice Thomas Moyer appointed the Advisory Committee on Interpreter Services to study the best use of interpreters in Ohio courts back in April 2005, this having evolved from recommendations of the Ohio Racial Fairness Implementation Task Force. (Task Force Report )

The initial set of Rules of Superintendence for the Courts, governing the certification of court interpreters, became effective Jan. 1, 2010, and the first group of 23 interpreters were certified by February 2011.

The Court entertained public comment on this current rule in January.

Text of Current Rules

Ohio postponed execution

“It is the policy of the State of Ohio that the State follows its written execution protocol, except when it does not.”

At least so commented South Ohio District Court Judge Gregory Frost last Monday in granting Kenneth Smith’s temporary restraining order halting his scheduled execution next week. ( Order )

“It is the most fundamental expression of the principles, rights, and obligations that define this country,” Judge Frost wrote “No governmental actor should ever disregard its dictates and prescriptions in this or any other context to fulfill any sense of perceived duty. It is wholly lawful to execute capital inmates. It is wholly unlawful to even attempt to do so in a manner that violates the Constitution.

“….There is no doubt that Ohio can lawfully execute those inmates condemned to capital punishment. But there is equally no reasonable debate over whether the Constitution confines the means of implementing that end. It does. The perplexing if not often shocking departures from the core components of the execution process that are set forth in the written protocol not only offend the Constitution based on irrationality but also disturb fundamental rights that the law bestows on every individual under the Constitution, regardless of the depraved nature of his or her crimes.”

The Court in this instance was not considering the constitutionality of Ohio’s death penalty, only whether Smith’s contentions regarding the State’s deviations from its declared protocol merited his execution being postponed, giving him the opportunity to continued participation in that larger endeavor.

Ohio partial custody same-sex 'co-parent' supreme court case

The Ohio Supreme Court, Tuesday, upheld lower court rulings that a biological mother, who acknowledged her same-sex partner as a “co-parent” of her daughter while the two women were in a relationship, did not permanently give up her sole custody of the child to create legal shared custody with the partner.

The Court’s summary further stated “the 4-3 decision authored by Justice Robert R. Cupp, affirmed a 1st District Court of Appeals ruling that competent, credible evidence supported the Hamilton County Juvenile Court’s judgment that although Kelly Mullen of Cincinnati shared the responsibilities of parenting her daughter Lucy with former partner Michele Hobbs while the women lived together, Mullen’s actions did not confer on Hobbs a permanent right to shared custody of Lucy after her relationship with Mullen ended.” ( Court’s decision )

The Enquirer and Columbus Dispatch both had articles.

Ohio DUI contentions

Last month we reported two Ohio municipal court judges’ taking the relatively new position that it's allowable, in some cases, for defense lawyers to present testimony challenging results from a portable breath tester used on suspected drunken drivers -- decisions apparently having the potential for “wide impact” in the state. ( Previous post )

Central Ohio's Pickaway County (Circleville) Municipal Court Judge Gary Dumm last June 2^nd. held that his court won't accept evidence from the Intoxilyzer 8000 breathalyzer until the state offers scientific proof that they provide accurate readings, USAToday reported last Monday. Judge Grimm had said that while he found the test results are admissible under Ohio evidence rules, the devices could be vulnerable to interference from smartphones and that readings may be skewed depending on how long a suspect blows into the them. (Judge Dumm’s decision )

Now, Athens County Judge William Grimm has ruled that expert witnesses could be called to testify about the reliability of the Intoxilyzer 8000 if the testimony is specific to the case. ( Judge Grimm’s decision )

Tim Huey, president-elect and DUI chairman of the Ohio Association of Criminal Defense Lawyers, was quoted as saying the decision “was huge, changing the landscape of DUI trials in Ohio, in terms of being able to introduce all relevant evidence,"

The article continued by saying that “While the ruling applies only to Athens County, Huey predicted that it would impact the thinking of judges elsewhere in the state, who may have been inclined to rely upon the 1984 Ohio Supreme Court decision in State v. Vega. Grim wrote that that precedent has been misread as barring any challenges to the reliability of breath-test instruments.”

As we noted in our previous posting, in the years since the Vega decision some things have changed. For one thing, the statute in question was amended in 1983, superseding Vega in some respects. Two years after Vega, in the vehicular homicide case, State v. Scheurell, Ohio’s 10th. District Court of Appeals said of the revision that, "accordingly, it would appear that we have reverted to the pre-presumption version of the statute, insofar as proving a charge of driving under the influence of alcohol pursuant to R.C. 4511.19(A)(1) is concerned. Under those circumstances, the logic supporting Parton v.. Weilnau, remains compelling. Because the field of chemical testing for alcohol concentration is beyond the common knowledge of laymen, a jury is not qualified to assess this kind of special scientific evidence, if unassisted by a knowledgeable expert."

Judge Dumm's decision in Circleville Municipal Court, last month, stated that recent supreme court decisions such as State v. Edwards in 2005, indicate "a defendant at trial may challenge breath tests on grounds other than that the results were illegally obtained because they were obtained in noncompliance with health department rules."

Mexican National on Texas death row creating international stir

Fox News this morning has an article about the pending execution of a Mexican national in the United States scheduled for today “becoming something of an international brouhaha.”

Fox News reports that “President Obama, the State Department and Mexico, have all asked the State of Texas for a last-minute reprieve of Humberto Leal, 38, who was convicted in 1995 in the brutal raping and murder of a teenage girl, citing the U.N.-enforced 1963 Vienna Treaty, which officials believe Leal could have altered his penalty with had he been given the chance.

“The treaty requires foreign nationals who are arrested in foreign countries the right to access their consulates. Texas police would have been required to inform Leal that he has the legal right to contact the Mexican consular, which could have offered him legal advice.” ( Text of Convention )

The Obama administration petitioned the U.S. Supreme Court to stop the execution, last Friday, asking the court to delay the execution for up to six months to give Congress time to consider legislation that would enforce the U.N. treaty. “Congress reportedly has had three years to pass the bill but has not, so it is impossible to pass it in time to spare Leal unless a stay is ordered. ( Amicus brief )

ScotusBlog pointed to the editorial board of the New York Times also urging the Court to grant Leal’s request for a stay, arguing that it would be a “miscarriage of justice” if he were executed before Congress can pass legislation to ensure that states comply with the Vienna Convention on Consular Relations.

Texas, though, “appears to bristle at the idea of a foreign body affecting judgments in the state, even though President George W. Bush endorsed the U.N. ruling,” Fox’s article says.

“Texas is not bound by a foreign court’s ruling,” Katherine Cesinger, press secretary for Gov. Perry's office said in a statement. “The U.S. Supreme Court ruled in 2008 that the treaty was not binding on the states and that the president does not have the authority to order states to review cases of the then 51 foreign nationals on death row in the U.S.”

Ohio Supreme Court seeking public comments to enhance disciplinary system

The Ohio Supreme Court is seeking public comment on a series of proposed rule amendments designed to enhance Ohio’s disciplinary system for lawyers and judges.

The Court had considered a set of amendment proposals contained in a December 2009 report from an 18-member Task Force to Review the Ohio Disciplinary System appointed by the late Chief Justice Thomas J. Moyer and published for comment in February 2010. After discussing the report and written comments, the Court made several revisions and is now re-issuing them for a second round of public comment. (Task Force’s report )

The Court’s announcement states “ review of the disciplinary system follows a five-year process to review, rewrite and adopt new ethical rules governing the conduct of Ohio lawyers (2007) and judges (2009). This is the first comprehensive review of the disciplinary process undertaken by the Court in at least the last 20 years. The last series of major amendments occurred in the late 1990s based on recommendations from a committee appointed by the Ohio State Bar Association.”

Text of Proposed Amendments.

Comments will be entertained until Aug. 2^nd. & should be submitted in writing to:

Richard A. Dove, Secretary, Board of Commissioners on Grievances & Discipline
65 S. Front St., Fifth Floor
Columbus, Ohio 43215

or rick.dove@sc.ohio.gov

Ohio Rules of Practice, Procedure amendments

The Ohio Supreme, last Friday, announced adoption of amendments to the rules of evidence, appellate procedure, civil procedure, criminal procedure, and juvenile procedure.

Amendments include those to Rules of Appellate Procedure (4, 9, 21, 25, 26, and 43), the Ohio Rules of Civil Procedure (53, 84 and 86), the Ohio Rules of Criminal Procedure (12, 14, 19, 58, and 59), the Ohio Rules of Juvenile Procedure (40, 46 and 47), and the Ohio Rules of Evidence (612 and 1102).

Text of Amendments Here