Wednesday, August 31, 2011

Centralizing Ohio income taxes this morning’s reporting that “Ohio cities and towns are resisting something being studied by the Kasich administration, to have the state collect local taxes,” and, as its Columbus Dispatch counterpart puts it, “Opposition is growing to the proposal before it’s even seen the light of day.”

“Centralizing municipal income-tax collections is an idea Gov. John Kasich has kicked around for months, and it continues to percolate within the Department of Taxation,” the Dispatch article says, “but as Tax Commissioner Joseph Testa approaches some municipal leaders about the possibility, he has been met with tough questions from some and opposition from others… a major concern being about local tax money going first to the state and then being redistributed back to municipalities.”

That concern was expressed by Gahanna, Ohio Finance Director Angel Mumma, who recommended that its city council draft a resolution against centralizing local tax collections. Gahanna outsourced its local tax collections to the Regional Income Tax Agency last year, but Mumma said she is concerned the city would lose its ability to enforce its tax code or losing control of that revenue.

The Cleveland Plain Dealer had an article yesterday.

Hamilton County, Ohio e-filings

The Court of Common Pleas and Clerk of Courts Office of Hamilton County, Ohio are announcing their going to be requiring all civil suits—more than 11,000 last year -- to be filed electronically beginning in January 2012. Eventually, criminal cases will be filed that way too. (See posted article )

Hamilton County’s domestic relations, juvenile, probate, and municipal courts are not involved in the project at this time. Self-represented litigants are also being exempted from the requirement for now.

E-filing is not a new concept and has been around at least since around 1999. Many federal courts, including the U.S. 6th. Circuit and Southern District courts, already use these systems.

The Montgomery County Clerk of Courts was the first clerk's office in Ohio to go paperless - or almost paperless – in common pleas courts beginning Jan. 1, 2010. Brush calls his system "paper on demand" because some still can file using paper. That includes people who file suits without having a lawyer, without the equipment to file electronically and/or “technologically challenged” attorneys who can’t pick up or understand the process. In those cases the old system is reverted to.

Hamilton County will be the first jurisdiction in Greater Cincinnati to try it. Hamilton County Common Pleas Court Judge Robert Winkler reported that the Clerk’s new c-filing system is already up and running along with a detailed guide, with l prints of each screen explaining how to use it available on the Clerk’s website

Tuesday, August 30, 2011

Taser news

Colerain Township Police Chief Dan Meloy said he began to look at alternatives to standard issue tasers when he had the opportunity to be one of an elite group of departments piloting a new alternative, he jumped on it. Colerain Township has been training with a new – and some say safer – alternative to Tasers-- a select pilot project of a new non-lethal weapon, the Mark 63 Trident.

Manufactured by Virginia-based Aegis, the device is several weapons rolled into one, incorporating high intensity light, pepper spray and a stun gun.

Meloy said training for use of the Mark 63 Trident was easy and its design, which incorporates a number of non-lethal options, allows an officer to escalate the amount of force needed easily when required. “This reduces the number of decisions an officer has to make, and the Trident makes it easier for an officer to change his tactics in the middle of a situation,” Meloy told the Community Press. “With the Trident, it’s all there in the officer’s hand.”

The Press’ article also noted that “larger departments such as Cincinnati Police and sheriff’s offices in Hamilton and Butler counties continue using tasers. Officials have credited them with helping to reduce fatal police incidents, but Cincinnati defense attorney Mike Allen predicts the recent death of a student at the University of Cincinnati after being shot with a taser may cause more police agencies to drop its use.

An LLRX article recently noted that “Tasers have been around for decades, the device first having been developed in 1967. Law enforcement agencies began adopting the devices extensively in the 1990s as they searched for a less-lethal alternative to firearms as a means of subduing violent or escaping persons, as well as a means of reducing injuries sustained by officers when attempting to physically control suspects. Indeed, in the incident that sparked the 1992 Los Angeles riots, Los Angeles Police Department officers used Tasers to subdue Rodney King during a traffic stop. During the subsequent criminal trial of the officers, their attorney argued that the fact that King tried to get up after having 50,000 volts of electricity shot into his body gave the officers reasonable cause to believe that King was high on PCP and therefore dangerous; prosecutors argued that the videotape of the incident clearly showed that King was in pain from the electrical shock and was not in any position or condition to be any danger to officers.

“According to the National Institute of Justice, part of the U.S. Department of Justice's Office of Justice Programs, as of June 2008, approximately 11,500 law enforcement agencies had acquired CEDs, or conducted energy devices, for use as a ‘less-lethal’ weapon.”

Monday, August 29, 2011

Supreme Court Adopts Insurance Coverage Law as New Specialization Area

Effective October 1, 2011, the Supreme Court adopted Insurance Coverage Law as a field of law subject to specialization designation in Ohio pursuant to recommendation of the Commission on Certification of Attorneys as Specialists.

The Court’s Commission on Certification of Attorneys as Specialists (CCAS), last June 24, approved insurance coverage law as a specialty area in Ohio and adopted the following definition: “Insurance Coverage Law is the area of law involving issues between insurers and policy holders concerning the rights and responsibilities that arise under insurance policies.”

Additional information on the Commission’s Standards for Accreditation of Specialty Certification Programs for Ohio Lawyers can be found here.

The Court’s announcement is here.

New Jersey Supreme Court eyewitness ruling

A Cleveland Plain Dealer article over the weekend noted the New Jersey Supreme Court’s decision last week issuing new rules that allow criminal defendants to more easily contest an eyewitness' identification could encourage similar challenges in state courts nationwide.

The New Jersey’s Court’s decision, according to a New Jersey Law Journal article last Wednesday, changed the rules for trial judges and juries considering eyewitness identification of suspects in criminal cases, citing the vagaries of human memory and a host of other factors and “adhering largely to recommendations made by a special master last June, held in State v. Henderson, A-8-08, that the standard for evaluating eyewitness identification that has been in use for 34 years can no longer be relied on, because it does not take into account the possible factors that could lead an eyewitness — even one absolutely sure in his or her own mind that an identification is accurate — to be completely wrong.” ( Special Master’s Report )

“While the decision applies only in New Jersey, it is likely to have considerable impact nationally,” an article in the New York Times said. “The state’s highest court has long been considered a trailblazer in criminal law, and New Jersey has already been a leader in establishing guidelines on how judges should handle such testimony.”

An earlier New York Times article covering the story noted that the U.S. Supreme Court, in November, is scheduled to “return to the question of what the Constitution has to say about the use of eyewitness evidence, when it hears Perry v. New Hampshire, 10-8974. The last time the court took a hard look at the question was in 1977 with Manson v. Braithwaite. Since then, the scientific understanding of human memory has been transformed and more than 2,000 studies on the topic have been published in professional journals in the past 30 years… What they collectively show is that it is perilous to base a conviction on a witness’s identification of a stranger. Memory is not a videotape. It is fragile at best, worse under stress and subject to distortion and contamination.”

The New Jersey Law Journal article reported that “Under the currently existing two-prong test for evaluating eyewitness identifications — established by Manson v. Braithwaite, 432 U.S. 98 (1977), and adopted by New Jersey in State v. Madison, 109 N.J. 223 (1988) — a trial judge first decides whether the police were impermissibly suggestive in getting the witness to pick out a particular individual. If so, the judge then considers the opportunity the witness had to view the suspect; the witness' degree of attention; the accuracy of his or her prior description; the level of certainty demonstrated by the witness; and the time between the crime and the identification… Rabner said the Manson/Madison test rested on three assumptions — that it would adequately measure reliability, that it would deter improper police practices and that jurors would be able to detect untrustworthy testimony—and sent the case to the special master, retired Superior Court Judge Geoffrey Gaulkin. In a July 2010 report, on which the Court heard arguments last March 30, found strong scientific evidence that mistaken identifications of criminal suspects occur far too often and that the assumptions underlying Manson/Madison are no longer valid, "We conclude from the hearing that they are not," Rabner said.

“The decision listed more than a dozen factors that judges should consider in evaluating the reliability of a witness’s identification, including whether a weapon was visible during a crime of short duration, the amount of time the witness had to observe the event, how close the witness was to the suspect, whether the witness was under the influence of alcohol or drugs, whether the witness was identifying someone of a different race and the length of time that had elapsed between the crime and the identification.”

Ohio, the Plain Dealer’s article mentions, enacted similar reforms a year ago, and legal experts said Thursday that the changes are proving effective in preventing witnesses from making erroneous identifications in police lineups. Senate Bill 77, which former-Gov. Ted Strickland signed last April and went into effect July 6, 2010, dealt “with issues involving DNA collection and evidence preservation, and established new procedures for conducting police photo arrays. Under the new law, the process must either be administered by an officer who is uninvolved in the investigation, or the suspect's photo must be placed in a folder and randomly shuffled among other folders containing photos… Cuyahoga County Prosecutor Bill Mason said Thursday that under those guidelines, Ohio's system for assessing the admissibility of an eyewitness identification is not far off from New Jersey's new rules.”

Thursday, August 25, 2011

Ohio HB 86 sentencing guidelines

A story in the Warren, Ohio Tribune Chronicle Tuesday is relating that many judges around the state are “taking a wait & see approach” to new sentencing guidelines effected by recently-passed Ohio House Bill 86, under which they would be under orders “to contact the Ohio's Department of Rehabilitation and Correction if they choose to sentence certain fourth- and fifth-degree felons.

“Those convicted of lower-level felonies still may go to prison if they committed a sex offense or a crime of violence with a gun or threatened harm to a victim,” the article said, “But in the case of lower-level felony drug offenders and non-violent offenders, judges had to notify ODRC ‘'for information on programming / sanctions available of at least one year's duration.’” The question then centers around already overworked probation departments.

The Ohio Sentencing Commission has compiled a summary & analysis of HB 86 for more detailed information.

Wednesday, August 24, 2011

Death Penalty in Ohio

As the whole death penalty thing continues with its perhaps last dying breathes across the country, Ohio remains at at least one fulcrum.

It is one of the 34 states that still has the death penalty on its books and pending executions.

This past week the Ohio Dept. of Corrections submitted a revised lethal-injection procedure to the Southern Ohio District Court in response to Judge Gregory Frost’s criticism last July 8th. that” the state’s adherence to its own procedures and protocol as ‘haphazard’ and unacceptable, indefinitely stopping Kenneth Wayne Smith’s scheduled July 19th. execution, and leading Gov. Kasich to postpone the scheduled Aug. 16 execution of Brett Hartmann until next year. A Columbus Dispatch article said “the 17-page protocol makes no dramatic changes, but ‘bolsters documentation and clarifies instructions,’ requiring an independent review of each lethal-injection procedure with the intent to assess and ensure adherence to the policy and provide recommendations for improvement."

“The new policy is the result of a comprehensive quality-control review of all aspects of the management of the offender prior to and through the lethal injection procedure,” Carlo LoParo, spokesman for the Ohio Department of Rehabilitation and Correction said. “It mandates explicit compliance with all aspects of the written policy directive.”

Most eminently affected by Judge Frost’s decision are Billy Slagle and Joseph Murphy. The Court has ordered Slagle to refile motions for a temporary restraining order and preliminary injunction with a hearing on those on September 13. Murphy, who wasn’t part of the case until July 21st, needs to re-file those initial papers which will be addressed at a Sept. 7th. hearing. (Court’s order on Aug. 23)

While that aspect plays out, the Dayton Daily News, this past weekend, carried a story about State Rep. Terry Blair’s having introduced legislation back in March to abolish the death penalty in Ohio and replace it with life imprisonment without parole for the worst crimes. ( HB 160 analysis)

Tuesday, August 23, 2011

Ohio Human Trafficking Commission

Vowing to go after the “scum that are preying on very vulnerable people,” Ohio Attorney General Mike DeWine relaunched a statewide commission working to combat human trafficking in Ohio last week.

The state’s renamed “Human Trafficking Commission” had its first meeting last Monday, picking up where predecessor Richard Cordray left off last year. The former Trafficking in Persons Study Commission compiled a series of reports on people in Ohio who have been or are at risk of being forced into prostitution and other illegal labor activities, and suggested
recommendations for dealing with the issue.

In that group’s executive summary “four factors that may increase the risk to youth in Ohio were identified, including
(1) Ohio’s weak response to trafficking victims, (2) evidence that first responders to human trafficking in Ohio were unaware and unprepared, (3) customers who purchase youth remain protected, receiving minimal charges and rarely being prosecuted in Ohio in any significant way, while traffickers suffer minimal consequences, and (4) high rates of vulnerable youth in Ohio.” The need for better data collection & analysis was also noted. (
Full Report Here )

Celia Williamson, a University of Toledo researcher, echoed the lack of solid statistics in this area in a Toledo Blade article, also last week, saying an effort was under way with a study to interview trafficking victims. Toledo, Cleveland, Columbus, and Cincinnati are current part of the study, with Williamson hoping to add at least four more cities to the mix.

The Blade article also mentions State Rep. Teresa Fedor’s, a commission member, having introduced a “safe harbor” type bill last June in which a minor would not be charged with prostitution if he or she was under duress or coercion at the time of the crime, but would be provided “appropriate services,” including the development of procedures for “reuniting the minor with family members in the minor's country of origin or destination country.” (See HB 262 )

Friday, August 19, 2011

Ohio "specialized docket"standards

The Ohio Supreme Court has adopted a new Rule of Superintendence that allows local courts receive Supreme Court certification of specialized dockets, and includes a set of 12 standards intended to create a minimum level of uniform practices while still allowing courts tailor specific operations to meet their local needs. (See announcement )

The standards spell out the procedure for certification, requiring courts to engage in a planning process for their specialized docket programs, use non-adversarial approaches, hold regular treatment team meetings, and conduct regular status review hearings for each individual placed in a program. The standards specifically exempt commercial dockets, housing dockets and environmental dockets from the requirements of the rule.

The rule will take effect January 1, 2113

Ohio has eight specialized docket programs according to the Supreme Court’s specialized courts section. ( map )

Text of Rule

New Ohio Probate Forms

The Ohio Supreme Court has adopted new and revised standard probate court forms covering wrongful death and survival claims settlements (Form 14.2), petitioner’s accounts (Form 18.9), and personal identifiers (Form 45(D))

Amendments become effective September 1,2011

Text of Forms

Thursday, August 18, 2011

New Ohio Rules of Practice

The Ohio Supreme Court yesterday announced that it had adopted amendments to Rules 1.2, 2.2, 8.5 and 18.3 of its Rules of Practice, becoming effective October 1, 2011.

“Changes to Rule 8.5 will have the broadest impact by requiring copies of jurisdictional memoranda and merit briefs to be single-sided,” the Court’s announcement said. “The current rule states that only the original memorandum or brief filed with the Court needs to be single-sided, while the copies could be double-sided. As of Oct. 1, both the original and copies for these specific court filings will need to be single-sided. Additional changes included in Rule 8.5 will reduce the number of copies required for jurisdictional memoranda, complaints in original actions and evidence in original actions.”

In division (A), a cross-reference to the copy requirements for facsimile filing was added and the number of copies required by the Court was reduced. In division C, the requirement that copies are to be single-sided was added. Division (D) was eliminated because the rules now require the original to be submitted in a scan-ready format.

Rule of Practice 1.2 was modified to emphasize that all of the pro hac vice requirements imposed by Rule XII of the Rules for the Government of the Bar of Ohio must be complied with when filing a motion for pro hac vice admission with the Supreme Court of Ohio.

Rule 2.2 (A)(6) was amended to address an amendment to the Rules of Appellate Procedure that permits the court of appeals to initiate en banc consideration sua sponte.

Full Text of the Amendments

Tuesday, August 09, 2011

DNA Collections on Felony Arrests

A question perhaps increasingly presented to the state and federal courts of the nation, to paraphrase California First District Court of Appeals Judge Anthony Kline, is the extent to which technology can be permitted to diminish the privacy guaranteed by the Fourth Amendment.

That court last week decided that that state's law mandating DNA samples be taken from felony arrestees is unconstitutional. last Thursday, noted "the DNA question is a hot one — in September, the Ninth Circuit U.S. Court of Appeals is set to rehear a case involving DNA collection as a condition of pretrial release, while last month reporting the Third Circuit Court of Appeals’ "sharply divided opinion" that “ DNA profiling samples are 'fingerprints for the 21st century,' and ruling that the government has the right to routinely collect DNA samples from anyone who is arrested for inclusion in a national database."

The National Conference of State Legislatures last year reported that all 50 states were now require convicted sex offenders to provide DNA samples, with many increasingly expanding those policies to include all felons and, in some cases, misdemeanor offenses. 47 states require that all convicted felons provide a DNA sample to the state’s database, whether sex-related or not.

By 2009, 21 states had passed laws authorizing DNA samples at the time of arrest in some cases. Ohio joined those ranks last year with the passage of its Senate Bill 77. That law went into effect July 1st.

Compulsory DNA Collection as a Fourth Amendment issue was addressed by the Congressional Research Service in February 2010. ( Report available here )