Thursday, February 24, 2011

Ohio "firearm provision" not separate offense

The Ohio Supreme Court this morning held that the "firearm specification" provision of state law that adds three years to the prison sentence of an offender who uses a firearm in the commission of a felony does not charge the defendant with a separate criminal offense. The state's allied offenses of similar import statute (R.C. 2941.25), therefore, does not require the firearm specification and the underlying offense to be merged for sentencing. In other words, the defendant is required to serve a sentence for discharging a firearm and serve an additional three-year sentence for using a firearm during the commission of that offense.

State v. Ford, Slip Opinion No. 2011-Ohio-765

Smart on Crime Coalition's criminal reform report

Earlier this month, The Blog of LegalTimes had a posting in which it discussed the Smart on Crime Coalition’s recent report in which it sought to recommend reforms to Congress & the Administration ranging from mandatory recording of police interrogations to ensuring the improvements in indigent defense and eradicating prison rape.

That Coalition – comprised of groups such as the American Bar Association, American Civil Liberties Union, National Legal Aid & Defender Association, National Association of Criminal Defense Lawyers, and Heritage Foundation -- says it "seeks to provide federal policymakers in both Congress and the Administration a comprehensive, systematic analysis of the current challenges facing state and federal criminal justice systems and recommendations to address those challenges. The main focus of Smart on Crime is the steps the federal government can take to improve federal criminal justice and support states seeking to improve their own systems."

BLT observed that "the report notes that since the coalition issued a similar set of recommendations at the beginning of the Obama administration in 2009, 'too little has been accomplished,' but, with the need for reform only increasing, the group reconvened and updated the recommendations." The effort took on an added urgency in response to Senator Jim Webb's (D-Va.) announcement that he was re-introducing a bill that would "establish a National Criminal Justice Commission to undertake a comprehensive review of all areas of the criminal justice system, including federal, state, local, and tribal governments' criminal justice costs, practices, and policies."

The Library of Congress' summary said further that the earlier bill would’ve "directed that Commission to: (1) make findings regarding its review and recommendations for changes in oversight, policies, practices, and laws designed to prevent, deter, and reduce crime and violence, improve cost-effectiveness, and ensure the interests of justice; (2) conduct public hearings in various locations around the United States; (3) consult with federal, state, local, and tribal government and nongovernmental leaders and other stakeholders in the criminal justice system, including the U.S. Sentencing Commission; and (4) submit a final report, within 18 months after its formation, to Congress, the President, and state, local, and tribal governments, and make such report available to the public." [ SB 714 (2010) ]

Topics addressed in the Report include innocence claims & wrongful convictions, prisons & the death penalty, federal sentencing, indigent defense, and juvenile issues.

The Report’s executive summary is Here, and complete report Here

Wednesday, February 23, 2011

Ohio Ethics Commission opinion

The Ohio Ethics Commission released an opinion this morning respective of situations in which a state department director has a conflict of interest. The Commission stated:

Syllabus by the Commission:

(1) Division (D) of Section 102.03 of the Revised Code prohibits a director of a state department from participating in any matter before the department that results in a definite and direct benefit or detriment to the director, or to a family member or business associate of the director;
(2) In such a situation, R.C. 102.03(D) also prohibits the director from delegating the matter to a subordinate official or employee at the department;
(3) When a department director withdraws from a matter before the department because R.C. 102.03(D) prohibits the director from acting on the matter, the director will be considered absent from the department and the person described in Section 121.05 of the Revised Code can act in the director’s place.

Tuesday, February 22, 2011

Ohio legal aid/ public defense

The ideology of fair & speedy trials in this country is age-old and almost inherent in our creed, but almost from the start it also presented a lot of challenges, some of which are still very much with us today.

Wikipedia states that, historically, legal aid has its roots in the right to counsel and right to a fair trial movement in 19th Century continental European countries. "Poor man's laws" waives court fees for the poor and provided for the appointment of duty solicitors for those who could not afford to pay for a solicitor. Initially the expectation was that duty solicitors would act on a pro bono basis. In the early 20th Century many European countries had no formal approach to legal aid and the poor relied on the charity of lawyers for legal aid… Beginning in the late 1800s and throughout the early years of the 20th century, one Wikipedia article relates, the American legal profession expressed its commitment to the concept of free legal assistance for poor people in the form of legal aid societies and bar association legal aid committees… The first legal aid society, The German Society of New York, was founded in 1876 to protect German immigrants from exploitation.

The Supreme Court cases Gideon v. Wainwright in 1963 – and Henry Fonda’s portrayal 15 years later in Gideon's Trumpet – and Miranda v. Arizona in 1966, magnified and brought indigent rights more into public view. – What a lot of people don’t realize is that these cases were criminal in nature, not civil. The right to legal counsel in criminal cases is founded in Sixth Amendment provisions of a fair & speedy trial by an impartial jury, but those provisions only protect against possible sentences of jail or prison time.

Different jurisdictions have come to have different approaches in providing legal counsel for criminal defendants who do not have financial access to a private attorney, Wikipedia's article on public defenders says. "Under the federal system and most common among the states is a publicly funded public defender office, which typically functions as an agency of the federal, state or local government and as such, these attorneys are compensated as salaried government employees." Here in Cincinnati and Hamilton County, for instance, both criminal & civil cases were initially provided for by the Legal Aid Society of Greater Cincinnati until 1976 when the state passed legislation for its own public defenders system.

An second Wikipedia article notes, "Congress, in 1974, created the Legal Services Corporation (LSC) to provide federal funding for civil (non-criminal) legal aid services, but that that funding has fluctuated dramatically over the past three decades depending upon which political parties were in control of Congress and the White House.

The President in his $3.7 trillion 2012 budget proposal called for a $30 million increase in LSC funding for the next fiscal year. ( Blog of LegalTimes had more )

Commissioners in Butler County, Ohio, which had used non-profit corporations for Guardian Ad Litem services or court-appointed outside counsel, last week approved spending $1.36 million on a project that calls for the hiring of nearly four dozen part-time attorneys to represent poor criminals in common pleas court, municipal courts in Middletown and Hamilton and the county's three area courts; and salaries for a public defender at $47,180 a year, two secretaries and two investigators. That plan now has yet to be approved by the Ohio Public Defender's Office. The Cincinnati Enquirer in reporting this also observed that "Hamilton and Clermont counties have public defender systems in place while judges in Warren County appoint attorneys for indigent defendants."

And speaking of Hamilton County, we have a new public defender. Sheila Kyle-Reno takes office March 14th., having for the last six years, served as directing attorney for the Elizabethtown trial office of the Kentucky Department o Public Advocacy - Kentucky's state version of the public defender's office. Ms. Kyle-Reno is taking over for retiring Lou Strigari, who had been Hamilton County’s Public Defender since 1994. ( More )

Friday, February 18, 2011

Ohio Supreme Court Juvenile Domestic Violence Rule/Forms

Effective last June 17, 2010, Am., Sub. H.B. 10 authorized the juvenile court divisions of Courts of Common Pleas to issue and enforce civil protection orders against juvenile respondents for certain offenses of violence, sexually oriented offenses, and domestic violence. Additionally, the legislation expanded the domestic violence definition of "family or household member" under the domestic violence statute, R.C. 3113.31, to include foster parents.

The Ohio Supreme Court yesterday announced the adoption of a new rule that establishes forms for the adjudication of juvenile domestic violence cases and certain other cases, effective March 1st.

Link to Rule & New Forms

Ohio Supreme Court Grievance/Disciplinary Opinion

The Ohio Supreme Court Board of Commissioners on Grievances & Discipline last week issued an opinion stating:
SYLLABUS: It is improper for a plaintiff’s lawyer to personally agree, as a condition of settlement, to indemnify the opposing party from any and all claims by third persons to the settlement funds. Such agreements are not authorized by Prof. Cond. Rule 1.15(d) and violate Prof. Cond. Rules 1.8(e) and 1.7(a)(2). Further, it is improper for a lawyer to propose or require, as a condition of settlement, that a plaintiff’s lawyer make a personal agreement to indemnify the opposing party from any and all claims by third persons to the settlement funds. Such conduct violates Prof. Cond. Rule 8.4(a). The Board recommends that this advisory opinion be prospective in application. (Opinion 2011-1)
A complete collection of the Board's advisory opinions, a subject index, and an advisory opinion status list are available ( Here )

Electronic Discovery Guidance

Law Technology News yesterday morning carried a story about U.S. Southern District of New York Court Judge Shira Scheindlin -- perhaps the most influential jurist in the development of electronic data discovery protocols -- issuing another opinion that has "the EDD community a-flutter," ruling on Feb. 7 that metadata must accompany documents that federal agencies send in response to Freedom of Information Act requests.

Prestigious Los Angeles law firm Gibson Dunn & Crutcher, a leader in electronic discovery litigation, was quick to turn out an alert in which it said "Judge Scheindlin apparently viewed this as a teachable moment regarding how parties should produce [electronically stored information]. While not of the scope of her opinions in Zubulake and Pension Committee, her decision here nevertheless provides helpful guidance regarding the form of production and the parties' obligations to discuss these issues in the Rule 26(f) meeting of counsel."

LTN's article also links to the case discussed.

Friday, February 11, 2011

Death Penalty Update

It sounds a gruesome thing to talk about perhaps, but the media's been abound with death penalty news from around the area for the last month or so. We'll try to summarize some of it.

The Ohio Supreme Court last week announced execution dates for seven condemned inmates, ending what had been a break in capital punishment scheduling. Two additional Ohio inmates already have scheduled execution dates, bringing the total to nine now, and an Enquirer article Tuesday morning said state and county prosecutors have asked Ohio's highest court to schedule executions for up to eight more of Death Row's 157 convicts.

"Last year," that article says, "Ohio set a modern record for executions with eight, the most since capital punishment resumed at Southern Ohio Correctional Facility in Lucasville in 1999. Ohio's total was second only to Texas, which held 17 executions last year; Texas currently has two scheduled for later this month.

While neither Indiana nor Kentucky had any executions last year, Kentucky prison officials last month were combining their search for drugs needed to carry out capital punishment for three longtime death row inmates while also considering holding back-to-back executions. Multiple executions in a single day or on consecutive days are not unprecedented around the country, according to an Associated Press article then, but not within the last five years. Kentucky hasn't carried out back-to-back executions since reinstating the death penalty in 1976. That same article reported that, "back in September, Hospira, the Lake Forest, Ill., company that is the main supplier of sodium thiopental in the United States, said because of a raw material shortage, no more of the fast-acting anesthetic could be produced until 2011. The company then announced it would stop making the drug altogether."

The shortage or unavailability of sodium thiopental was rapid and widespread. State prison officials began looking for sources overseas – which brought up other questions, such as whether the Food and Drug Administration would permit thiopental imports, even though there are no FDA-approved, foreign suppliers of the drugs? The Wall Street Journal last week reported that the FDA had announced "it would permit prison officials to import thiopental to their hearts' content, but would not vouch for the safety and or purity of imported thiopental." That resulted in six death-row inmates from Arizona, California and Tennessee suing the FDA in federal court last week, claiming the agency has violated federal law by allowing states to import thiopental that has not been reviewed for safety and purity. ( Complaint )

U.S. District Court Judge Gregory Frost, of Ohio's Southern District, last year dismissed claims by death row inmate Darryl Durr asserting that "Ohio’s use of sodium thiopentalas a means of execution, as well as the State's possible use of midazolam and hydromorphone as an alternative means of execution, violated the Federal Controlled Substances Act, 21 U.S.C. §§801 et seq., the Federal Food, Drug & Cosmetic Act, 21 U.S.C. §§ 301 et seq., and various federal regulations associated with these Acts." In that case the state had pointed out that, 25 years earlier, the U.S. Supreme Court in Heckler v. Chaney, 470 U.S. 821 (1985), "a number of condemned inmates had argued that the states were violating federal law in using drugs to execute them, and that the Food and Drug Administration (FDA) should prohibit the use of the drugs until the FDA certified that the drugs were 'safe and effective' for execution. The FDA unsurprisingly rejected the prisoners' arguments, reasoning that it was primarily concerned with serious dangers to the public, and that such dangers were not posed by the states' procedures for lawfully executing condemned prisoners." ( Motion to Dismiss )

The Ohio Supreme Court, in answering a certified question from Ohio's Northern District Court, also last year, as to whether there was "a post-conviction or other forum to litigate issues of whether Ohio's lethal injection protocol is constitutional under Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520,170 L.Ed.2d 420 (2008), or under Ohio law?" answered that there was not . The Court further said it would not hear further cases regarding lethal injection until the Ohio General Assembly explicitly expanded state review of death penalty cases. ( See Scott v. Houk )

Last month, the Ohio Department of Rehabilitation and Correction announced that it was switching its lethal injection drug to a single, powerful dose of pentobarbital, a common anesthetic used in surgeries and also by veterinarians to euthanize pets, replacing sodium thiopental. That announcement met with objection by the drug’s manufacturer, Lundbeck, Inc., which was quoted in the Columbus Dispatch as saying, "Lundbeck is dedicated to saving people's lives... Use of our products to end lives contradicts everything we're in business to do."

LastTuesday morning CNN reported the U.S. Justice Department was reviewing a request from 13 states on how to acquire an execution drug no longer made in the United States and whether the federal government would share its supplies with them.

All of which can brings us to the other side of the question.

A recent National Law Journal article (subscription) asked whether Illinois' effort to end capital punishment would help kill the death penalty nationally. The Illinois General Assembly passed legislation last month repealing that state's death penalty which will go into effect in July unless vetoed by Governor Pat Quinn.

Wikipedia reports that as of November 2010, fourteen states & the District of Columbia have already abolished the death penalty. Illinois reinstated capital punishment in 1977, but has been under a moratorium since 2000. "Other states that have ditched the death penalty recently — New Mexico in 2009, New Jersey in 2007 and New York (by court ruling) in 2004 — were not actively executing inmates beforehand, but Illinois executed 12 people since capital punishment was reinstated in 1976."

A Dayton Daily News commentary last weekend said "there’s no need to travel far into the future to find outrage over America's system of capital punishment. A growing chorus of voices is calling for a re-examination of the death penalty in Ohio. Among the most powerful voices: Ohio's Catholic bishops; Ohio Supreme Court Justice Paul Pfeifer; former attorney general Jim Petro; and former state prison director Terry Collins – Justice Pfeifer served as chairman of the Senate Criminal Justice Committee when Ohio debated the capital punishment bill in 1981. (More on Justice Pfeifer's position)

--- and State Rep. Ted Celeste, is said to be drafting our own bill calling for the end to the death penalty here in Ohio.

Tuesday, February 08, 2011

Ohio abortion-ban legislation

The Cincinnati Enquirer this morning has an article saying that legislation being introduced at the Statehouse tomorrow banning abortions in Ohio once a fetus' heartbeat is detected is seen by both sides of the abortion issue as a likely test case that could end up in the U.S. Supreme Court.

Ohio, as a matter of fact, has several bills proposing new abortion limits -- including stiffer penalties on health clinics and doctors who don't follow state law, according to a second article, including:
  • SB 8 .and HB 63 concerning abortions to minors
  • HB 79 prohibiting health plan coverage for abortions
  • HB 7 and 78 revising criminal statutes governing post-viability abortions

Abortions have been legal in every state of the Union since Roe v. Wade in 1973. In its one article on the subject, WikiPedia says that “prior to ‘Roe’, there were exceptions to the abortion ban in at least 10 states; ‘Roe’ established that a woman has a right to self-determination (often referred to as a 'right to privacy') covering the decision whether or not to carry a pregnancy to term, but that this right must be balanced against a state's interest in preserving fetal life… Roe established a ‘trimester’ system of increasing state interest in the life of the fetus corresponding to the fetus's increasing ‘viability’ (likelihood of survival outside the uterus) over the course of a pregnancy, such that states were prohibited from banning abortion early in pregnancy but allowed to impose increasing restrictions or outright bans later in pregnancy. That decision was modified by the 1992 case Planned Parenthood v. Casey, which upheld the ‘central holding’ in Roe that there is a fundamental right to privacy encompassing the decision about abortion, but replacing the trimester system with the point of fetal viability (whenever it may occur) as defining a state's right to override the woman's autonomy."

The topic has remained volatile.

A 2007 Stateline article commented on the diversity of the states’ positions, saying, "Six states – Illinois, Kentucky, Louisiana, Mississippi, North Dakota and South Dakota -- have so-called trigger laws waiting on the books to make abortion illegal as soon as federal policy permits. Three more states – Arkansas, Missouri and North Dakota – have passed weaker laws declaring the state's intention to criminalize abortion, but experts say those laws can’t be enforced.

"In contrast, seven states have passed laws ensuring the legality of abortion whether Roe v. Wade stands or falls: California, Connecticut, Hawaii, Maine, Maryland, Nevada and Washington. California and nine others also have constitutional language interpreted by courts as protecting a woman’s right to end her pregnancy."

Monday, February 07, 2011

Ohio Supreme Court "specialized courts" standards

The Ohio Supreme Court announced this morning that it is going to be accepting public comments on a new rule that outlines standards to help guide local courts if they are currently operating or considering starting a specialized court docket until March 1.

Since the establishment of the Hamilton County Drug Court in 1995, Ohio has been recognized as a national leader in the implementation of specialized dockets. In 2001, the Supreme Court created the Specialized Dockets Section to assist and support local courts in developing specialized programs uniquely tailored to helping specific populations within the court system. Today, there are nearly 150 specialized dockets operating in Ohio including drug courts, mental health courts, re-entry courts, OVI courts, veterans courts, sex offender courts, felony non-support courts and domestic violence courts.

The Court’s announcement said the 12 standards proposed under Rule 36.02 of the Rules of Superintendence for the Courts of Ohio are intended to create a minimum level of uniform practices yet still allow courts to tailor operations to meet their individual needs. Some of the standards require courts to engage in a planning process, use a non-adversarial approach, hold regular treatment team meetings, and conduct regular status review hearings.

Comments on the proposed amendments should be submitted in writing to: Melissa Knopp, Specialized Dockets Section manager, Supreme Court of Ohio, 65 S. Front St., Sixth Floor, Columbus, Ohio 43215 or

Text of Proposed Amendments

Thursday, February 03, 2011

Ohio same sex supreme court custody case

Kelly Mullen and her former partner, Michele Hobbs, were in a committed relationship for five years before agreeing to raise a child together. Mullen is the child’s, a girl, biological mother. They consulted a lawyer, but never reached a written agreement, and later split up.

The Cincinnati Enquirer yesterday reported that when the adults split up in October 2007, Mullen and the child had moved out of the house they had shared with Hobbs; Mullen denying Hobbs any contact with the little girl. Two months later, Hobbs petitioned Hamilton County Juvenile Court to grant her permanent shared custody of the child on an equal basis with Mullen. A motion for joint custody was granted to Hobbs by a magistrate, but subsequently overturned by Juvenile Court. An appeals court upheld the reversal

The Supreme Court granted weekly visitation rights to Hobbs pending its decision.

The case was heard yesterday morning

Memorandum in support of jurisdiction ( Filed by: Hobbs, Michele )

Memorandum in response of Kelly Mullen
Memorandum in response of Scott Liming

First District Court of Appeals case

Wednesday, February 02, 2011

Ohio Probation Study

A report released today by the Council of State Governments' Justice Center recommends Ohio adopt 13 changes to its probation and sentencing laws that could shrink the state's prison population by 4,500 inmates over the next four years and save taxpayers $62 million, the Associate Press reports. [ See Report ]

Those proposals are grouped in three basic categories:
  • Holding offenders accountable in more meaningful ways
  • Making smarter use of community corrections programs such as halfway houses
  • Strengthening supervision of persons on probation

USAToday this morning also noted that “a report by the Justice Center in July of last year found that Ohio's probation system was too fragmented and the state cycles too many low-risk offenders serving short sentences through the prison system. In 2008, the state spent $189 million on inmates with an average sentence of just nine months.

Last year's study also found that Ohio's numerous probation agencies overlap, aren't coordinated and have different training standards and that there's no useful information collected statewide that could help improve the probation system, and that the state spends more than $130 million annually on programs trying to keep people out of prison with no information on whether the programs actually work.”

The Ohio Supreme Court also reported that Chief Justice Maureen O’Connor, who chairs the Ohio Criminal Sentencing Commission, and Justice Evelyn Lundberg Stratton also participated. Chief Justice O’Connor highlighting policies relating to the probation system saying, “About 75 percent of people under the control of Ohio’s criminal justice system are on probation, yet without data or coordination, the effectiveness of supervision at holding offenders accountable is largely unknown. This framework has the potential to modernize and strengthen probation and result in cost savings.”