Thursday, March 31, 2011

Supreme Court reverses single-incidentBrady violation case

The New York Times reported yesterday that "The Supreme Court had reversed a $14 million jury award in favor of a former death row inmate who had finally been aquitted & freed after prosecutorial misconduct came to light."

In early 1985, John Thompson was charged with the murder of Raymond T. Liuzza, Jr. in New Orleans. Publicity following the murder charge led the victims of an unrelated armed robbery to identify Thompson as their attacker, and he was also charged with that crime.

As part of the robbery investigation a blood test was ran on a stain on one of the victims' pants, the results being returned to the prosecutor's office two days before trial, but never being forwarded to Thompson's attorney. That evidence wasn't introduced at trial, and he was found guilty & convicted.

A few weeks later, Thompson was then tried for the Liuzza murder. Because of the armed robbery conviction, he did not testify in his own defense, and was subsequently convicted and sentenced to death for that crime.

In the 14 years following Thompson's murder conviction, state and federal courts reviewed and denied his challenges to the conviction and sentence; the State scheduling his execution for May 20, 1999.

Then in late April 1999, a private investigator doing research on a habeas action for Thompson discovered the crime lab report from the armed robbery investigation in the files of the New Orleans Police Crime Laboratory. Thompson was tested and found to have blood type O, proving that the blood on the swatch was not his. His attorneys presented this evidence to the district attorney's office, which, in turn, moved to stay the execution and vacate Thompson's armed robbery conviction. The Louisiana Court of Appeals then reversed Thompson’s murder conviction, concluding that the armed robbery conviction unconstitutionally deprived Thompson of his right to testify in his own defense at the murder trial. Re-tried in 2003, he was found not guilty.

Thompson subsequently sued the district attorney's office, prosecutors, and others involved in the trial, alleging that their conduct caused him to be wrongfully convicted, incarcerated for 18 years, and nearly executed. The only claim that proceeded to trial, the case shows, was Thompson’s claim under§1983 that the district attorney’s office had violated Brady by failing to disclose the crime lab report in his armed robbery trial. A jury awarded Thompson $14 million in damages, with the District Court adding more than $1million in attorney’s fees and costs.

The Fifth Circuit affirmed on appeal.

In its decision Tuesday, a divided Supreme Court said "A district attorney’s office may not be held liable under §1983 for failure to train its prosecutors based on a single Brady violation… it does not follow that, because Brady has gray areas and some Brady decisions are dif-ficult, prosecutors will so obviously make wrong decisions that failingto train them amounts, as it must, to “a decision by the city itself to violate the Constitution."

Connick v. Thompson, 09-571

Tuesday, March 29, 2011

Ohio Supreme Court rule amendments

The Ohio Supreme Court adopted two rule amendments yesterday, both of which become effective April 1, 2011.

The first will allow suspended attorneys, in limited circumstances, to apply for reinstatement while still being subject to probation or other post-conviction sanctions. (See Court's announcement here or full text of amendment here).

The second establishes a recusal process when questions arise about the impartiality of a Justice in a case. Rule 14.6 of the Rules of Practice of the Supreme Court of Ohio will allow a party to a case to request the recusal of a Justice, or an appeals court judge sitting by assignment on the Supreme Court, and/or enable a Justice to self disclose if he/she believes there might be a potential basis for disqualification. ( Court's announcement and text of new rule )

Friday, March 25, 2011

Ohio criminal sentencing legislation

Sentencing can be one of the most rapidly changing areas of law there is. In Ohio, 1995 Senate Bill 2, is often viewed as the first comprehensive revision of the state's criminal code since 1974. Senate Bill 2 and amending "clean-up" Senate Bill 269 went into effect July 1, 1996.

Enter federal sentencing cases Apprendi v. New Jersey(2000), Blakely v. Washington(2004), U.S. v. Booker(2005), Cunningham v. California(2007) and then resultant State of Ohio v. Foster in 2006. Cuyahoga County Common Pleas Court Judge Burt Griffin and Case Western University Professor of Law Lewis Katz in their Ohio Felony Sentencing Law (Baldwin Ohio Handbook Series) wrote; "In the aftermath of Apprendi, Blakely, and Booker, but before Cunningham, the Ohio Supreme Court used an axe rather than a scalpel to bring Ohio sentencing reform legislation in line with Supreme Court rulings. In State v. Foster it did away with ten years of sentencing reform, essentially reinstating the pre-SB 2 system which had resulted in prison overcrowding and sentencing disparity…"

Last February, Ohio's Senate Judiciary-Criminal Justice Committee started new rounds of hearings on criminal sentencing reforms with current Senate Bill 10. Fairfield County Common Pleas Court Judge Richard Berens in testifying before the Committee last week "opposed aspects of SB10 as presently drafted, and other proposals to limit the discretion of Common Pleas judges to sentence certain felony offenders to prison."

The Ohio Sentencing Commission's recently-released 2011 Monitoring Report recommended reviving length-of-stay guidelines that were in the old SB2 and later invalidated by State v. Foster. The Sentencing Commission estimates that that decision, along with several federal cases, increased the prison population by 4,000 since 2006. It favors passage of the current SB 10.

Text of Senate Bill 10
Bill Analysis

Wednesday, March 23, 2011

Wiretapping right to sue

In what a New York Times editorial this morning referred to as "a decision that might lead to a significant — and far too long delayed — legal review of federal statute," the United States Second Circuit Court of Appeals this past Monday reinstated a lawsuit by civil liberties and journalism groups challenging government eavesdropping law, that the district court had found against two years ago because of a lack of standing.

The Circuit Court, Monday, noted that "the only issue presented by this appeal is whether the plaintiffs are legally in a position to assert these claims in federal court, not whether the claims are to any degree valid. Their merit is an issue for another court on another day… Because standing may be based on a reasonable fear of future injury and costs incurred to avoid that injury, and the plaintiffs establish that they have a reasonable fear of injury and have incurred costs to avoid it, we agree that they have standing."

At issue in the case, plaintiffs posit "a challenge to the constitutionality of the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801, et seq. ("FISA"), as amended by H.R. 6304, the FISA Amendments Act of2008 ("FISA Amendments Act," "FAA," or "Act"), which the President signed into law on July 10, 2008. As amended, FISA allows the executive branch sweeping and virtually unregulated authority to monitor the international communications - and in some cases the purely domestic communications – of law abiding U.S. citizens and residents. The amended law (the "challenged law") eviscerates the "[c]lear legal standards and effective oversight and controls" that the Senate Church Committee concluded in 1978 were necessary to ensure that government surveillance did "not itself undermine the democratic system it [was] intended to protect."

District Court holding
Original complaint

Monday, March 21, 2011

Ohio death penalty update (March 2011)

The death penalty & related subjects have been back in the news a lot again. We presented a review of sorts back in January which this now expands on.

Illinois abolished capital punishment back on March 9th., with the sentences of all 15 inmates on death row there being commuted to life in prison effective as of that date. That was after a decade-long moratorium on executions in that state.

Ohio, Kentucky, and Indiana here in the Midwest are all still states with the death penalty –- Ohio, the day after Illinois abolished its death sentence -– executing its second inmate of the year using a new protocol and drug – the first time a single injection of the sedative pentobarbital has been used in a U.S. execution. That, in part, was because of the shortage or unavailability of sodium thiopental which had numerous states looking for sources overseas once Hospira, the Lake Forest, Ill., company that was the main supplier of that drug in the United States stopped making it last September.

That brought up other questions, such as whether the Food and Drug Administration would permit thiopental imports from outside the country even though there are no FDA-approved, foreign suppliers of the drug? The Wall Street Journal back in January had 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." Six death-row inmates from Arizona, California and Tennessee filed suit in D.C. District Court last month, claiming the agency has violated federal law by allowing states to import thiopental that has not been reviewed for safety and purity. ( Complaint )

During this same time 13 states were approaching the Justice Department requesting assistance on how to acquire sodium thiopental and/or whether the federal government would share its supplies with them, and the attorney for Georgia death row inmate Andrew Grant DeYoung was sending Attorney General Eric Holder a letter alleging that the Georgia Department of Corrections (“GDC”) appeared to have violated the Controlled Substances Act (“CSA”) by failing to register as an importer of thiopental and filing a declaration to import the drug.

Earlier this month, The Associated Press reported that Holder said in a March 4 letter sent to the National Association of Attorneys General that the federal government didn't have any reserves of sodium thiopental for lethal injections and was facing the same dilemma as many of the states. The Department of Justice, now, last Tuesday, confiscated for the first time nationally Georgia's recently-obtained supply of sodium thiopental, effectively putting executions there on hold.

Finally, a Reuters article appearing in last Wednesday's Chicago Tribune made the observation that "A perfect storm of cash-strapped budgets, newly elected governors and an increased use of DNA evidence threatens to smite the death penalty in an increasing number of states…"

The death penalty "stands a good chance of being eliminated this year in Connecticut, Maryland and Montana, where bills are wending their way through those statehouses," the Trib article quotes Richard Dieter, executive director for the Death Penalty Information Center, as saying. Repeal efforts also are underway in Florida, Kansas, and here in Ohio, although their success there are seen to be less likely. A Columbus Dispatch article last Wednesday noted that "death-penalty opponents have pushed for abolishment for years (in Ohio) but have made few inroads. However, the movement now has gotten a nudge recently when Ohio Supreme Court Justice Paul E. Pfeifer and Terry Collins, former state prison director, called for ending executions.

It should also be noted as well, though, that the Death Penalty Information Center also reports that New York and West Virginia were/ had been entertaining legislation reinstating their death penalties, New York's specifically being restricted to the intention killiung of police officers.

Monday, March 14, 2011

You and the Legal System: Landlord Tenant Issues

The Hamilton County Law Library, in conjunction with the Cincinnati Bar Association's Lawyer Referral Service, will present You and the Legal System: Landlord/Tenant Issues on Friday, March 18, 2011 at 12:00 noon at the Law Library.

We're pleased to announce that Ivan Tamarkin, a Cincinnati attorney practicing primarily in real estate law and employment law, will be the speaker. There will be time for questions from the audience. This program is free and open to the public. Attorneys are welcome to attend but please note that the session is intended primarily for the non-lawyer citizen. Please call 513.946.5300 at the Hamilton County Law Library to reserve a seat.

For a list of other upcoming programs, see

Friday, March 11, 2011

Ohio death penalty protocol

Johnnie Baston became the second inmate executed by the State of Ohio this year, but the first using another new state procedure, and put death with a single injection of the sedative pentobarbital -- that first also being the first time the drug has been used in a U.S. execution.

Several other procedures were changed as well.

"In the past, executioners inserted the needles in the inmate's cell as witnesses watched on closed-circuit TV. No audio was provided and there was no way to hear an inmate if the process wasn't working correctly.," the Associated Press reported. "But, starting yesterday, the needles will be inserted from behind a curtain in the death chamber, where an inmate could call out to an attorney — separated only by a window — if the insertion process isn't working.

"Now, an attorney concerned about how an execution is going could use a death house phone to contact a fellow lawyer in a nearby building with access to a computer and cellphone to contact courts or other officials about the problem, Carlo LoParo, a spokesman for the Ohio Department of Rehabilitation and Correction said.

“There is a catch with the change, though: The state will still allow an inmate only three witnesses. For an inmate to be guaranteed fast access to a lawyer, he would have to give up one of his designated witnesses, usually a family member."

The U.S. Southern Ohio District Court, two years ago in Apanovich v. Wilkerson, held that an inmate's constitutional rights weren't violated by having to substitute a witness for an attorney.

Wednesday, March 09, 2011

Illinois abolishes death penalty

Illinois Gov. Pat Quinn has abolished the death penalty in that state, immediately commuting the sentences of all 15 inmates on death row there. Illinois now joins 15 other states that have done away with the death penalty.

Former Gov. George Ryan had imposed a moratorium on executions in 2000 after the death sentences of 13 men were overturned, also clearing death row before leaving office in 2003 by commuting the sentences of 167 condemned inmates to life in prison, the Associated Press reported.

Thirty-five states, federal courts and the military, retain the death penalty, according to the Death Penalty Information Center. New Mexico abolished the death penalty in 2009; New Jersey 2007. A court ruling abolished it in New York in 2004. Illinois’ last execution, prior to its moratorium was in 1999 when Andrew Kokoraleis was put to death.

The New York Times, USAToday, and CNN have more.

Tuesday, March 08, 2011

DNA evidence suits OKd under Federal civil rights

The U.S. Supreme Court ruled Monday that prisoners can file federal civil-rights lawsuits seeking DNA testing of crime-scene evidence, a decision that gives inmates a new legal pathway to seek exoneration through scientific evidence, the Wall Street Journal yesterday reported.

The case, Skinner v. Switzer, "was a follow-up to the Supreme Court's District Attorney’s Office v. Osborne 5-4 decision in 2009 that said convicts had no constitutional right to DNA testing of evidence in their cases, a ruling that left the matter to the discretion of individual states," the Journal article said. But, "the legal issue in the case was also tightly focused and quite preliminary," the New York Times added, "Justice Ruth Bader Ginsburg emphasizing the narrowness of the ruling. Allowing Mr. Skinner to sue, she said, was not the same thing as saying he should win his suit.

“Justice Ginsburg noted that Osborne, had severely limited the kinds of claims prisoners seeking DNA evidence can make. That decision, she wrote, "left slim room for the prisoner to show that the governing state law denies him procedural due process."

USAToday and CNN also had stories

Monday, March 07, 2011

Kentucky drug rehab law

The Wall Street Journal last Friday noted Kentucky's becoming the latest among a growing number of states renouncing "some of the long prison sentences that have been a hallmark of the war on drugs and instead focusing on treatment, which once-skeptical lawmakers now say is proven to be less expensive and more effective."

"While the changes are part of broader belt-tightening efforts," the Journal's article conceded, "they also reflect a growing belief among state lawmakers that prosecuting drug offenders aggressively often fails to treat their underlying addiction problems and can result in offenders cycling in and out of prisons for years—a critique long voiced by groups that advocate in favor of defendants' rights…" Estimates are that passage of the new law will save the Commonwealth $422 million over the next decade. Delaware, Florida, Indiana, Massachusetts and Pennsylvania are among those that also have pending bills to reduce penalties for drug offenders, in some cases by directing defendants into treatment programs. Similar laws have taken effect in South Carolina, Colorado and New York in recent years. States have maintained stiff penalties for more-serious drug crimes."

Kentucky's HB 463
Governor's Press Release

Wednesday, March 02, 2011

Kentucky adopts statewide rules for family law cases

The Supreme Court of Kentucky last month announced that it had for the first time adopted uniform rules for family law cases statewide, effective Jan. 1st.

The Family Court Rules of Procedure and Practice apply to all family law cases, handled by Family Court judges in 71 Kentucky counties and by circuit and district judges in the 49 other counties without a Family Court. Family law cases include such matters as divorce, termination of parental rights, domestic violence, child support, juvenile status offenses, adoption, and dependency, neglect or abuse.

"Before now there were no statewide rules specifically for family law cases," the Court's statement said. "Kentucky judges followed the Supreme Court Civil Rules and created local family law rules for their jurisdiction. The new rules are based on best practices in domestic and child welfare cases in Kentucky courts. They provide a uniform set of rules for judges, attorneys and parties to follow statewide to help ensure safety, permanency and well-being for children and families."

"These rules will change the way family law is practiced in Kentucky," Chief Justice John Minton said. "The many Kentucky citizens involved in family law proceedings – some of the most sensitive and difficult cases to come before our courts – will benefit from the dedication and vision of Justice Noble and all those who assisted with drafting these rules."

Summary of Family Court Rules

Ohio sets four more execution dates

Execution dates for four Ohio inmates were announced yesterday:
  • Reginald Brooks, case 1985-1616 on Tuesday, November 15, 2011
  • Charles Lorraine, case 1990-1927 on Wednesday, January, 18, 2012
  • Michael Webb, case 1993-1374 on Wednesday, February 22, 2012
  • Brett Hartman, case 1998-1475 on Tuesday, August 16, 2011

Hartman had asked that Chief Justice Maureen O’Connor remove herself from the case because she was the county prosecutor at the time he was tried and his execution date overturned because she had also signed his execution order last Feb. 8th.. The Court vacated the original execution order signed by Chief Justice O’Connor, but denied his asking her recusal as once the order was vacated, that point was mooted. His execution date was re-established for August 16th..(Decision)

Tuesday, March 01, 2011

New Ohio Supreme Court attorney specialization

On June 25, 2010, the Ohio Supreme Court's Commission on Certification of Attorneys as Specialists proposed insurance coverage law as a specialty area in Ohio being defined as:that area of law involving issues between insurers and policy holders concerning the rights and responsibilities that arise under insurance policies, including the duty of good faith.

CCAS was established in 1993 to identify specialty areas and to set minimum standards for certification as specialists. After a specialty area definition recommended by the CCAS has been approved by the Court, agencies that have programs of certification in the defined area apply to the CCAS for recognition that their program meets the minimum standards. By this process, the agency that applied is approved to certify Ohio attorneys as specialists in the field of law.

It will now be accepting public comment on the insurance law proposal until March 29, 2011 (Announcement )

Comments should be submitted in writing to:
Susan Christoff, Director, Attorney Services Division,
Supreme Court of Ohio
65 S. Front St., Fifth Floor
Columbus, Ohio 43215
or via e-mail to

Text of Proposal

New Ohio Supreme Court probate forms

The Supreme Court of Ohio announced yesterday that it will be accepting public comment on proposed new and revised probate court forms addressing personal identifier concerns, wrongful death and survival claim settlements, and petitioner's accounts until March 29, 2011.

Comments on the proposed forms should be submitted in writing to:
John VanNorman,
Policy and Research Counsel,
Supreme Court of Ohio
65 S. Front St., Seventh Floor
Columbus, OH 43215 or via e-mail to

Text of proposed forms Here

Ohio Supreme Court posts local rules of court

The Ohio Supreme Court last week announced the inclusion of local rules of court from the majority of Ohio's trial courts being posted online on the Court's website. Not all Ohio courts have internet access.

Supreme Court Clerk of Court Kristina D. Frost said Rule 5 of the Rules of Superintendence for Ohio Courts, in pertinence here, requires local courts to file copies of their rules with the Supreme Court, or changes to them, by the first of February of every year. Rule 5 in its present form was adopted in July 1997 "to ensure that the Court has a current, comprehensive set of local rules adopted by each court or division." That availability is now online in most cases.

The Court's availability parallels the efforts of the Ohio Law Library Consortium which started their online project in 2008. (OCCL local rules of court)

County law libraries in Ohio were assimilated fully under "county control" in 2005 when they collectively became known as "county law library resource boards." The Ohio Law Library Consortium was a voluntary growth out of that with the intent of creating a forum for sharing the collective resources of the county libraries in Ohio. That outgrowth became more formalized in 2010 when the law actually went into effect. [ "Consortium of county law library" ORC - 3375.481 (eff. Jan. 1, 2010 ) ]

The Supreme Court's rules can be accessed via one of three drop-down menus on the left-hand side of the Supreme Court's website: "The Ohio Judicial System – Ohio Trial Courts & Local Rules," "Clerk of Court & Case Information – Local Rules" or "Ohio Rules of Court – Local Rules."

Federal Judges' Pocket Guide on Sealed Cases

The Federal Judicial Center has published a pocket guide for federal judges focusing on the occasional need to seal court records and proceedings.

"The public in general, and news media in particular, have a qualified right of access to court proceedings and records rooted in the common law," the Guide states, "But on occasion there are good reasons for courts to keep parts of some proceedings confidential, such as classified information, ongoing investigations, trade secrets, and the identities of minors."

The 22-page pocket guide includes many references to the voluminous amount of federal case law in its discussion, and a procedural checklist of considerations when a record is sealed or when a proceeding is closed to the public.

Federal Judicial Center’s announcement