Wednesday, February 29, 2012

New Ohio Public Defender Affidavit of Indigency Form

The Ohio Public Defenders Office ;on February 1st published a new format of the Financial Disclosure/Affidavit of Indigency form used by defendants in seeking legal representation. The new version will have to be used for all appointments made on or after April 1, 2012.

Financial Disclosure/Affidavit of Indigency form
Instructions for Completing Form

Tuesday, February 28, 2012

Ohio Public Defender Proposal

A Dayton Daily News article this past weekend reported an Ohio working group consisting of representatives from several state offices, the County Commissioners Association of Ohio, Ohio State Bar Association and the Ohio Judicial Conference considering changes in how defense lawyers are provided for the poor, having drafted a proposal that would shift the financial responsibility of indigent defense from counties to the state over a five-year period.

The group, according to the article, has been meeting for several years to consider possible changes to an indigent defense system set up in the 1970s under which counties arrange and pay for lawyers for poor defendants and are then partially reimbursed by the state. “Counties, however, were reimbursed at a rate of about 35 percent by the state last year but had been promised a 50 percent rate when the system was created.”

Ohio Public Defender Tim Young was quoted as stating that “when you have the state of Ohio law being enforced and defended in 88 different ways in the counties ... you end up with huge disparities in cost, quality and efficiency. Under the proposal, the counties still could choose how they provided representation for indigent people, such as using a county public defender's office, court-appointed lawyers, contracts with the state or a combination of those models, but the state public defender's office oversee the system through regional offices & be writing the whole check.” (See Ohio Public Defender’s breakdown of County Indigent Defense Systems )

The Ohio Supreme Court’s Task Force on Pro Se & Indigent Litigants, back in April 2006, opined that “the system of providing counsel to indigent criminal defendants was inefficient, ineffective, and in need of significant improvements. Recommendations of that task force – noting that a similar venture was undertaken in 1992 under then-Justice Craig Wright making many of the same recommendations -- “required modification of the current system by making the Ohio Public Defender Commission an independent entity within the judicial branch of government and implementing local indigent representation commissions to oversee the provision of indigent criminal legal services.” A paramount concern of that task force was also to ensure provision of adequate funding to fully implement its recommendations. ( Task Force Report )

While the Daily News’ article says the present proposal hasn’t been submitted to the General Assembly as of yet, House Bill 49, introduced back in January 2011, would have provided that “specified fees, costs, and fines that currently are deposited into the state treasury to the credit of funds that help pay for the defense of indigent criminal defendants be deposited instead into the municipal treasury to help compensate counsel appointed by the court to represent indigent defendants if the court that imposed the fees, costs, or fines is a municipal court that is not a county‐operated municipal court and that appoints counsel for indigent defendants in a manner other than that provided for in a specified provision of the Revised Code…” The bill had an single hearing in front of the House Judiciary & Ethics Committee last year.

Tuesday, February 21, 2012

Judicial Reviews of 'Adam Walsh' Sex Offender Classication Not Eliminated by Bodyke Decision in Ohio

The Ohio Supreme Court this morning held that its 2010 decision in State v. Bodyke, which invalidated part of Ohio’s Adam Walsh Act (AWA) as unconstitutional, did not invalidate the statutory petition process by which a sex offender may seek judicial review of his classification. The Court also held that when a trial court finds that a defendant who has been indicted for failing to register as a sex offender under the AWA is not a person subject to registration, the trial court has authority to grant a pretrial motion to dismiss the indictment.

The appeal drew the Court to consider two procedural questions that lingered after its decisions in State v. Bodyke, 2010-Ohio-2424, and State v. Williams, 2011-Ohio-3374, each of which invalidated aspects of the state’s version of the Adam Walsh Act.

First, the Court said, it reviewed “whether its decision in Bodyke invalidated the statutory petition process for challenging a classification under the Adam Walsh Act. It did not. Bodyke invalidated the reclassification provisions of the Adam Walsh Act because they violated Ohio’s separation-of-powers doctrine. However, because separation of powers implicates more than one branch of government, it is not at issue in the petition process, which involves only the judiciary and survives Bodyke.

It secondly, addressed whether a trial court could dismiss an indictment alleging violations of the Adam Walsh Act. Crim.R. 12 authorizes pretrial dismissal of defective indictments, and after Williams, duties under the Adam Walsh Act may not be imposed retroactively. When a trial court faces an indictment based on the retroactive application of the Adam Walsh Act, the law not only allows but indeed demands dismissal.”

State v. Palmer, Slip Opinion No. 2012-Ohio-580
Court’ s summary
Franklin County Court of Appeals decision

Ohio’s Adam Walsh Act [ Am.Sub.S.B. No. 10 analysis (2007) ]

Friday, February 17, 2012

Ohio Supreme Court upholding bifurcated civil tort provisions

The Ohio Supreme Court last Wednesday upheld the state’s 2005 tort reform provision that requires state courts hearing civil tort actions to grant requests for “bifurcation” of trials into two separate stages where claims for compensatory and punitive damages have been asserted. [ See Havel v. Villa St. Joseph, Slip Opinion No. 2012-Ohio-552 ]

The case, a medical malpractice/ wrongful death action, involving a violation of the Ohio Nursing Home Patients’ Bill of Rights stemming from an incident in which a resident recuperating from hip surgery had developed skin ulcers that also required surgery, contracted a bacterial infection of those ulcers following that surgery, and had died several months later as a result of complications from that infection. Plaintiff’s complaint had sought both compensatory and punitive damages, to which he defendants moved to bifurcate the trial into two stages pursuant to ORC. 2315.21(B): an initial stage relating only to the presentation of evidence and determination by the jury as to the recovery of compensatory damages, and, if necessary, a second stage involving the presentation of evidence and determination by the jury with respect to the recovery of punitive damages. Trial court denied the motion to bifurcate without stating a reason.

On appeal, the 8th District Court of Appeals, affirmed the judgment of the trial court, holding ORC. § 2315.21(B) was unconstitutional because it conflicted with Civ.R. 42(B), in violation of the separation of powers required by the Ohio Constitution, Article IV, Section 5(B) and certifying its decision to the Supreme Court as being in conflict with a 2009 decision of the 10th District Court of Appeals, Hanners v. Ho Wah Genting Wire & Cable, 2009 Ohio 6481, in which that court upheld ORC. 2315.21(B) as constitutional.

In its decision Justice Terrence O’Donnell noted that: “...R.C. 2315.21(B) does more than set forth the procedure for the bifurcation of tort actions: it makes bifurcation mandatory. ... By eliminating judicial discretion, R.C. 2315.21(B) creates a concomitant right to bifurcation: because the court cannot deny a request for bifurcation under the specified circumstances, the statute turns a request into a demand for or an entitlement to bifurcation by controlling the outcome. We have previously recognized that a statute may create a right when it contains mandatory language and restricts judicial or agency discretion.”

The Court’s summary continued, “Citing prior court decisions including this Court’s 2006 holding in State ex rel. Loyd v. Lovelady, 2006 Ohio 161, Justice O’Donnell wrote that when the language of a statute does not plainly indicate whether the legislature intended it to be substantive or procedural,it is appropriate for courts to look to uncodified language enacted by the legislature, if any, to determine intent. In this case, he wrote, “(T)he statements made by the General Assembly in the uncodified language of S.B. 80 compel the conclusion that although R.C. 2315.21(B) may be ‘packaged in procedural wrapping,’ it is a substantive law because it creates a right to ‘address potential injustice.’”

Wednesday, February 15, 2012

Cybersecurity Act of 2012

Law Technology News this morning had an article that might end up being of interest to many of our readers.

Senator Joe Lieberman of Connecticut , LTN reports, “will be introducing the Cybersecurity Act of 2012 this week, which will aim at protecting crucial American computer infrastructure by giving oversight to the Department of Homeland Security. Experts, however, say it's possible that large law firms and corporate legal departments could be impacted and find themselves reporting security procedures to the federal government, or face fines and public scrutiny.

“The bill,” the article continues, “states that oversight, as evaluated by the National Institute of Standards and Technology, would apply to any agency, company, or organization at which an electronic attack ‘could reasonably lead to catastrophic interruption of life-sustaining services, catastrophic economic damage, or severe degredation of national security capabilities,’ according to summary documents on the U.S. Senate Committee on Homeland Security and Governmental Affairs site.”

The ABA, according to the article, is reserving judgment, but a former Homeland Security policy official was quoted as saying it's possible that law firms could be impacted in extreme situations.

Stewart Baker, a partner at the Washington, D.C. firm, Steptoe & Johnson, who is scheduled to testify before the Senate committee tomorrow, said "It's not completely outside the realm of possibility. But it would be hard to identify those portions of the legal industy that really are critical infrastructure. That is to say, there might be 100 or 200 law firms in America whose secrets, if compromised, would in aggregation result in really significant economic harm. At the end of the day, it's not the law firm's secrets that are important, it's their clients'. Any law firm in America could fail and nobody would die.”

“The bill, in the mean time,” the article said, “is already fostering some controversy. It originated in 2010 as the Protecting Cyber Space as a National Asset Act, and evolved in 2011 as the Cybersecurity and Internet Freedom Act. Those versions were widely criticized for allowing presidential power to order disconnection of networks from the internet, known generally as the internet kill switch. The new bill removes such provisions, yet still invokes what some call constitutional controversy about stipulations that private businesses could be subject to federal monitoring of their computer security, and that businesses could be forced to share potentially private data with the government and other companies. There is also resistance from libertarian groups about what they assert is unnecessary bureaucracy.”

Tuesday, February 14, 2012

Hamilton County, Ohio's juvenile court election dispute

Last week, Southern Ohio U.S. District Court Judge Susan Dlott in a 93-page decision ruled that hundreds of contested votes that could decide the 2010 Hamilton County Juvenile Court race should be counted.

A legal victory for Democratic candidate Tracie Hunter that could translate into a political victory in a judicial contest that has remained undecided for 15 months, last Wednesday also noted that “the ruling also opens the door to a broader challenge to Ohio’s voting system, one that potentially could result in a part of the state’s current electoral procedures being declared unconstitutional.”

“The major question about the uncounted votes,” that article wrote, “is whether the mistakes that kept the provisional ballots from being tabulated were made by voters or poll workers. In some cases, voters showed up at the correct polling location but mistakenly cast ballots at the wrong precinct table – an error commonly referred to as ‘right church, wrong pew.’” Judge Diott didn’t see it that simply, saying it created a double standard. “Under current practices,” she wrote, “votes cast in the wrong precinct are not to be ‘counted under any circumstance, even when the ballot is miscast due to poll worker error…That policy is fundamentally unfair and violates the 14th Amendment’s due process guarantee.”

Yesterday morning -- along partisan lines --’s Politics Extra, reported that the Hamilton County Board of Elections came to a split decision on whether to appeal Judge Diott’s order to the Sixth Circuit or comply with it and count the 283 provisional ballots in question… with the decision now being made by Secretary of State Jon Husted. indicated that the Southern District case last Wednesday didn’t challenge the constitutionality of Ohio’s election statutes, but that an amended complaint could do so. (Also see Notice here)

The case has been before both the
Ohio Supreme Court and Sixth Circuit Court of Appeals in recent months.

In an interesting aside, this morning has a story about a recent Pew Center study that found “some 24 million voter registrations in the United States contain significant errors, including about 1.8 million dead people still on the rolls and many more approved to vote in multiple states.

“Even though the inaccuracies impact one in eight registrations,” the article said, “researchers at the Pew Center on the States said they don't see it as an indicator of widespread fraud. Rather, they believe outdated systems are failing to keep pace with the most basic changes in people's lives, feeding perceptions that U.S. elections are not as airtight as they could be. Eight states -- Colorado, Delaware, Maryland, Nevada, Oregon, Utah, Virginia and Washington -- were reported as saying they were working on a centralized data system in conjunction with the Pew report to help identify people whose registrations may be outdated.”

Thursday, February 09, 2012

Supreme Court turns down Ohio execution case

The Associated Press this morning writes that of the U.S. Supreme Court’s yesterday “adding another wrinkle to Ohio’s debate over how strictly the state’s lethal injection procedures should be followed, by without comment refusing to allow the execution of a condemned killer of an elderly couple to proceed -- that execution delayed by the Ohio Southern District Court last month over concerns that the state continues to deviate too often from its written rules for executions by lethal injection.” ( Court’s order )

The case here in point was that of Charles Lorraine, whose January 18th. execution was stayed by Southern District Judge Gregory Frost a week before that set execution. The Sixth Circuit upheld the stay two days latter, commenting that it “agreed with the district court that the State should do what it agreed to do: in other words it should adhere to the execution protocol it adopted. As the district court found, whether slight or significant deviations from the protocol occur, the State’s ongoing conduct requires the federal courts to monitor every execution on an ad hoc basis, because the State cannot be trusted to fulfill its otherwise lawful duty to execute inmates sentenced to death.”

Later that month, the Columbus Dispatch reported that “without objection from Attorney General Mike DeWine U.S. District Judge Gregory L. Frost halted the execution of Michael Webb, scheduled for Feb. 22, also allowing Webb to join other death-penalty defendants in a lawsuit challenging the constitutionality of the state’s lethal-injection protocol. ( Order )

Then, last week, finding that even though Hamilton County Prosecutor Joe Deters had made mistakes and improper comments during his trial, a 3-judge Sixth Circuit panel on Feb. 2, said “evidence in the case that Jeffrey Wogenstahl abducted, beat and stabbed to death 10-year-old Amber Garrett in 1991 was so overwhelming that the prosecutors’ actions did not change the outcome of the trial. ( Article and Decision Here )

Tuesday, February 07, 2012

FTC Warning Marketers That Mobile Apps May Violate Fair Credit Reporting Act

Also in the social media arena, or at least with mobile applications, the Federal Trade Commission is warning the marketers of six mobile applications that provide background screening that, if they have reason to believe the background reports they provide are being used for employment screening, housing, credit, or other similar purposes, they must comply with Fair Credit Reporting Act provisions.

According to the FTC, some of the applications include criminal record histories, which bear on an individual's character and general reputation, and are precisely the type of information that is typically used in employment and tenant screening. “Under the FCRA,” a press release yesterday said, “operations that assemble or evaluate information to provide to third parties qualify as consumer reporting agencies, or CRAs, and mobile apps that supply such information may also qualify as CRAs under the Act. CRAs must take reasonable steps to ensure the user of each report has a 'permissible purpose' to use the report; take reasonable steps to ensure the maximum possible accuracy of the information conveyed in its reports; and provide users of its reports with information about their obligations under the FCRA….”

Companies receiving letters are Everify, Inc., marketer of the Police Records app, InfoPay, Inc., marketer of the Criminal Pages app, and Intelligator, Inc., marketer of Background Checks, Criminal Records Search, Investigate and Locate Anyone, and People Search and Investigator apps.

NLRB Social Media Reports

Cases related to the social media continue to confront the National Labor Relations Board, a Corporate Counsel article last week related, quoting NLRB as recognizing that "these issues and their treatment by the NLRB continue to be a 'hot topic' among practitioners, human resource professionals, the media, and the public."

That resulted in the issuance of a new report by the office of general counsel at NLRB, which, along with an operations/management memo issued last August (Here), are providing some guidance as this area of the law develops.

Monday, February 06, 2012

Ohio Supreme Court Rules of Practice & Procedure Amendments

The Ohio Supreme Court this morning announced it has filed its annual Rules of Practice & Procedure update with the Ohio General Assembly, including proposed amendments to the rules of evidence, and appellate, civil, criminal, and juvenile procedure.

Initially published for comment last October, the amendments were revised by the Commission on the Rules of Practice and Procedure and approved for filing. A second round of public comment was then commenced, running thru March 6. The Court can then revise and file the amendments with the General Assembly before May 1, the amendments then taking effect on July 1 unless the General Assembly adopts a concurrent resolution of disapproval before then.

The Court’s announcement notes that many of the proposed changes 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.

The Court, in one instance, unanimously approved the proposed amendments for filing with the General Assembly and publication for a second comment period except for the amendments to Juv. R. 3. The Court voted 4-3 in favor of filing and publishing proposed amendments to that rule, which will mandate that juveniles consult with legal counsel before waiving their right to an attorney in specific cases, with Justices Terrence O’Donnell, Judith Ann Lanzinger, and Robert R. Cupp voting against filing the proposed amendments. A new rule – Juvenile Procedure Rule 5 – was then proposed to require juvenile courts to use a juvenile’s initials rather than his or her full name in court decisions and press releases.

Access to the text of all proposed amendments can be gained here.

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

Proposed Federal Sentencing Commission Guideline Amendments

On January 19th., the U.S. Sentencing Commission posted notice of proposed amendments to its sentencing guidelines, policy statements, and commentaries; requesting public comment on these, as well as retroactive application of any of the proposed amendments, and giving notice of the public hearing on the proposed amendments.

In brief the proposed amendments & issues for comment include:
• Fraud & related offenses, including a response to the issue of harm to the public & financial markets;
• Offenses involving controlled substances & chemical precursors;
• Human rights offenses, including “trafficking in documents relating to naturalization, citizenship, or legal resident status, or a United States Passport; false statements made in respect to the citizenship or immigration status of another; fraudulent marriages to assist aliens to evade immigration law;
• Unlawfully entering or remaining in the United States, in response a circuit conflict over application of the term "sentence imposed" in that guideline when the defendant's original "sentence imposed" was lengthened after the defendant was deported;
• Options for specifying the types of documents that may be considered in determining whether a particular prior conviction fits within a particular category of crimes for purposes of specific guideline provisions;
• Definitions and instructions for computing criminal history to respond to an application issue regarding when a defendant's prior sentence for driving while intoxicated or driving under the influence (and similar offenses by whatever name they are known) is counted toward the defendant's criminal history score;
• Definitions of terms responding to differences among the circuits on when, if at all, burglary of a non-dwelling qualifies as a crime of violence for purposes of the guidelines,;
• Sentencing considerations on multiple count convictions to respond to an application issue regarding applicable guideline range in cases in which the defendant is sentenced on multiple counts of conviction, at least one of which involves a mandatory minimum sentence that is greater than the minimum of the otherwise applicable guideline range;
• Post-sentencing rehabilitative efforts to respond to Pepper v. United States,131 S.Ct. 1229 (2011), which held, among other things, that a defendant's post-sentencing rehabilitative efforts may be considered when the defendant is resentenced after appeal ;

Written public comment regarding proposed amendments and issues, including those regarding retroactive application of any of the proposed amendments, should be received by the Sentencing Commission not later than March 19, 2012
United States Sentencing Commission, One Columbus Circle, N.E., Suite 2-500 Washington, D.C. 20002-8002 Attention: Public Affairs
Additional information may also be obtained by contacting Jeanne Doherty, Public Affairs Officer via telephone at (202) 502-4502.

Further information regarding the public hearing, including requirements for testifying and providing written testimony, as well as the location, time, and scope of the hearing, will be provided by the Commission on its website at

Friday, February 03, 2012

Ohio "Castle Doctrine" cases

The Ohio Supreme Court last Wednesday declined to hear the case of a 55-year-old Cleveland homeowner convicted in Cuyahoga County Common Pleas Court last year of killing an intruder.

Carl Kozlosky had been sentenced to 18 years to life in prison last year for the shooting death of Andre Coleman on Sept. 20, 2009, the
Cleveland Plain Dealer reported yesterday morning. Coleman -- who had been on an all-night crack binge, according to court testimony -- broke down the back door of Kozlosky's home to get money or drugs from his girlfriend, who was Coleman’s girlfriend but was at Kozlosky’s house at the time, but then had begun beating her up. Kozlosky testified at trial that he thought Coleman was reaching for a gun -- which investigators never found -- when he emptied his .38-caliber revolver into Coleman.

His attorneys argued that his case was one of self-defense, falling under Ohio’s
Castle Doctrine” statutes, updated in 2008 by the Ohio legislature to give people an automatic assumption that they act in self-defense when using lethal force against someone illegally entering their home. Cuyahoga County’s 8th. District Court of Appeals agreed, overturning his conviction and ordering a new trial ordered -- which is where the state approached the Supreme Court.

Cuyahoga prosecutors say they will review the evidence to determine if they will bring new charges against Kozlosky, who has been free since Nov. 2 after posting a $10,000 bond. "The Castle Doctrine gives a presumption people can defend themselves in their home," Assistant Prosecutor Matthew Meyer said, “but in some cases, the government has to overcome the presumption."

“Castle Doctrine” was in the news earlier this year, too, when a Butler County grand jury exonerated 84-year-old Lindenwald resident Charles Foster, finding no fault when he shot and killed Ed Stevens, 75, on Jan. 3. Stevens, the
Middletown Journal had reported, “who suffered from dementia and Alzheimers, crashed into Foster’s garage, began wrecking things in the man’s basement and eventually hit him with a board. Foster said he didn’t know the castle doctrine existed, but he knew he had a right to protect himself. He said he shot Stevens once in the arm and when that didn’t stop him, he pulled the trigger again.

In that instance, Middletown’s Journal relayed, Butler County Prosecutor Mike Gmoser cautions “that the ‘Castle Doctrine’ doesn’t allow people to go on a shooting spree when someone unlawfully enters their home. ‘The presumption of self-defense to a home invasion quickly disappears when an assailant surrenders or is no longer a threat,’ he said. ‘While your home is and should be respected as your castle, the use of deadly force must actually be used in self-defense and not just because someone has unlawfully entered your castle.’”

Thursday, February 02, 2012

Aging Prison Populations

There were articles on the University of Pittsburgh’s Jurist and, more specifically here in Ohio in The Columbus Dispatch, earlier this week about the Human Rights Watch’s concern “over aging men and women becoming the most rapidly growing group in US prisons and the ability of officials to provide appropriate housing and medical care to these individuals.” ( Human Rights Watch press release )

HRW released a report last month -- the first of two that Human Rights Watch plans to issue on the topic of elderly prisoners in the US. -- presenting new data on the number of aging men and women in prison, information on the cost of confining them; and based on research conducted in nine states (California, Colorado, Connecticut, Georgia, Mississippi, New York, Ohio, Rhode Island, and Washington ) where prisons vary significantly in size, resources, and conditions, offers an overview of some ways that prison systems have responded to them. ( See "Old Behind Bars: The Aging Prison Population in the United States")

The report details that the “states vary considerably in the relative size of their population of older inmates. Among states reporting year-end prison population data to the National Corrections Reporting Program, the proportion of prisoners age 55 years or over ranged from 4.2 percent to 9.9 percent, with the highest proportions found in Oregon (9.9 percent), 2 percentage points above the second highest rate (7.9 percent in Pennsylvania). The lowest rate (4.2 percent) was found in Connecticut, followed by North Dakota (5.0 percent).

In Ohio, inmates age 50 or over grew from 9.5 percent of the total prison population in 2001 to 14.5 percent in 2010 -- increasing by 126.2 percent in the four years between 1997 and 2010 alone. JoEllen Smith, spokeswoman for the Ohio Department of Rehabilitation and Correction, was quoted by the Dispatch as reporting that Ohio is no exception to the trend, with the state’s institutions now having 6,847 inmates 50 or older -- the oldest being 90 years old.

Among HRW’s recommendations to state & federal officials were reviewing sentencing and release policies to determine which could be modified to reduce the growing population of older prisoners without risking public safety; developing comprehensive plans for housing, medical care, and programs for the current and projected populations of older prisoners; and modifying prison rules that impose unnecessary hardship on older inmates.

Ohio HB 86 (analysis) passed last June and becoming effective at the end of September, contained provisions for the Department of Corrections to “review the cases of all parole-eligible inmates who are 65 or older and who have had a statutory first parole consideration hearing, and report the findings of its review to the Senate & House of Representatives as to why each of those inmates has not been paroled or otherwise released from custody; and then to have the Chair of the Ohio Parole Board present to the Board the cases of those offenders described, authorizing it to then rehear the offender's case for possible release on parole.”

Prelude to HB 86 was the Ohio Sentencing Commission’s 2011monitoring report, “Prison Crowding: The Long View, with Suggestions.”