Thursday, May 31, 2012

1st. Circuit Court of Appeals finds Defense of Marriage Act unconstitutional

USAToday this afternoon is reporting the 1st U.S. Circuit Court of Appeals' yesterday declaring that the federal Defense of Marriage Act unconstitutionally denies federal benefits to married gay couples -- a ruling all but certain to wind up before the U.S. Supreme Court.

"The unanimous ruling said the 1996 law that defines marriage as a union between a man and a woman discriminates against gay couples because it doesn't give them the same rights and privileges as heterosexual couples… The three-judge panel didn't, however, rule on the law's other politically combustible provision which said states without same-sex marriage cannot be forced to recognize gay unions performed in states where it is legal." ( Holding )

The L.A.Times also has a story

Newly Released GAO Reports

Sabrina I. Pacifici this morning passes along notice of some new GAO Reports on:

  • Budget and Spending GAO Schedule Assessment Guide, GAO-12-120G, May 30, 2012

  • Indigent Defense - Surveys of Grant Recipients, Select Tribes, and Indigent Defense Providers, GAO-12-661SP, May 30, 2012

  • Securities Regulation - Opportunities Exist to Improve SEC's Oversight of the Financial Industry Regulatory Authority, GAO-12-625, May 30, 2012

  • Tribal Law and Order Act - None of the Surveyed Tribes Reported Exercising the New Sentencing Authority, and the Department of Justice Could Clarify Tribal Eligibility for Certain Grant Funds, GAO-12-658R, May 30, 2012

  • VA Administrative Investigations, Improvements Needed in Collecting and Sharing Information, GAO-12-483
    , April 30, 2012

For those of us in county law libraries, the Indigent Defense report presents "results of surveys GAO conducted of public defender offices and agencies and of recipients of federal funding that could be used for indigent defense, or legal representation provided, in accordance with the U.S. Constitution, to individuals who have been charged with a crime but are unable to afford legal representation."

GAO found that the Department of Justice could increase awareness of eligible funding and better determine the extent to which funds help support this purpose.

"The Department of Justice (DOJ) administered 13 grant programs from fiscal years 2005 through 2010 that recipients could use to support indigent defense, 4 of which required recipients to use all or part of the funding for this purpose. DOJ also provides training to indigent defense providers, among other things.

"From fiscal years 2005 through 2010, recipients of the 4 grants that required spending for indigent defense allocated or planned to use $13.3 million out of $21.2 million in current dollars for indigent defense. However, among the 9 grants that did not require allocations or awards for indigent defense, two-thirds or more of state, local, and tribal respondents to GAO’s surveys reported that they did not use funds for this purpose, partly due to competing priorities. DOJ has listed the grants on its website. However, no more than 54 percent of grantees or public defender offices responding to GAO's surveys were aware that such funding could be used to support indigent defense. Taking steps to increase awareness would better position DOJ to help ensure that eligible grantees are aware that they can access federal funding to help address their needs. DOJ officials acknowledged that opportunities exist to enhance grantees’ awareness."

Tuesday, May 29, 2012

Ohio Supreme Court commercial docket rules exended

In April 2007, the late Chief Justice of the Ohio Supreme Court Thomas J. Moyer announced the formation of the Supreme Court Task Force on Commercial Dockets, charging it with developing a pilot project to determine the best means of adopting commercial dockets in the state's courts of common pleas. That evolved into commercial dockets being established in common pleas courts in Cuyahoga, Franklin, Hamilton and Lucas counties beginning in January 2009.

On May 6, 2008, the court adopted temporary rules to establish a multi-court pilot program to assess the best method of establishing commercial civil litigation dockets in the state. The Court is now extending the effective end dates of those temporary rules. ( Announcement )

Temporary Rules 1.01 through 1.11 of the Rules of Superintendence for the Courts of Ohio were originally set to expire on July 1. This action extends that deadline to June 30, 2013. The rule change takes effect June 1.

Proposed Rules of Superintendence will be introduced for public comment later this year incorporating the task force recommendations.

Text of Rule 99 and Temp. Sup. R. 1.11.

U.S. Sixth Circuit Proposed Rule Amendments

The U.S. Sixth Circuit Court of Appeals is in the process of amending its local rules and internal operating procedures -- the product of a comprehensive review of the current body of rules and procedures.

The Court's notice says that, while a large number of amendments are being proposed; only a relative few are substantive in nature, with many of the rest being of a stylistic or formatting nature.

Pursuant to 6 Cir. R. 47(a), all interested parties have the opportunity to register comments to the proposed changes. Those may be addressed to Leonard Green, Clerk and sent not later than July 12, 2012

Additional information and Proposed Revisions

Missouri execution protocol

CBS and the Associated Press were both reporting last Friday that the same anesthetic that caused the overdose death of pop star Michael Jackson is now the drug of choice for executions in the state of Missouri, after the Missouri Department of Corrections' announcing last week it was switching from its longstanding three-drug method of execution to the use of a single drug, Propofol. Missouri would be the first state ever to use propofol as an execution drug. The decision, however, is causing a stir among critics who question how the state can guarantee a drug untested for lethal injection won't cause pain and suffering for the condemned.

The AP reported that it wasn't clear when propofol would first be used, as no executions are currently scheduled in the state despite Attorney General Chris Koster's request last week that the Missouri Supreme Court set execution dates for up to 19 condemned men whose appeals have run out; and litigation over the new protocol is possible, attorneys for death row inmates having said they were still gathering information on the new process and that no decision had been made as to whether to seek an injunction.

Texting/Driving liability lawsuit

Following up on last Thursday's post, ABC News Friday afternoon reported New Jersey Superior Court Judge David Rand's ruling that the woman sending a text message to her boyfriend while he was driving cannot be held liable for the motor vehicle accident he subsequently caused.

"Drivers are bombarded with all forms of distractions," Judge Rand told the courtroom, according to The New Jersey Star-Ledger. "I found that there was no aiding or abetting here in the legal sense. I find it is unreasonable to impose a duty upon the defendant in this case under these facts. Were I to extend this duty, in my judgment, any form of distraction could potentially serve as basis of a liability case….. "Americans have become almost addicted to the wireless communication device," the judge expounded in the Star-Ledger to a courtroom filled with reporters rapidly plucking away at their cell phones. "We've become so familiar with the text feature that it is a fact of life."

Commenting on decision, Jersey Law Journal reported "the closest case Rand found was Durkee v. Jett, 09-cv-449, in which a federal judge in the Western District of North Carolina last year threw out a products liability claim brought by four people injured when a tractor-trailer hit a car, allegedly because the driver was distracted by a text from the dispatcher. The suit faulted the tractor-trailer communications system because it allowed receipt of texts while the vehicle was in motion. Rand found Durkee, which is on appeal, not controlling but instructive."

Thursday, May 24, 2012

Texting-While-Driving... Liability of Message'sSender

A novel, new spin on the texting-while-driving scenario that's bound to be repeated in future -- and interestingly, hasn't been tried before -- is being reported in a article this morning. The sender of text messages in a New Jersey traffic/personal injury case in which the texting driver of a car crossed centerline, hitting a man & woman riding a motorcycle which resulted in both losing a leg, was named as a co-defendant in that case.

The driver of the car had pleaded guilty to using a hand-held cellphone while driving, careless driving and failure to maintain a lane in Montville (N.J.) Municipal Court. That cost him $775 in traffic fines and being ordered to address 14 area high schools about the perils of texting and driving.

In the personal injury case against him, though, the plaintiffs' attorney amended his lawsuit to include the driver's girlfriend who had been texting him, at the time 19 years old, as someone who aided in the negligence even though she wasn't in the vehicle, the article said. "She may not have been physically present, but she was electronically present," he said.

The girl's defense counsel was quoted as having said, "The sender of [text messaging] has the right to assume the recipient will read it at a safe time," earlier this month in Morris County Superior Court. He knows of no court ruling anywhere in the country that says the sender of a text is liable if the receiver causes injury while reading the message. explores the issue a bit more this morning, noting that "Mark Rasch, head of the Justice Department's Computer Crimes Unit, said he thinks the case will boil down simply into this question: Can anyone really prove that the sender of the text, Colonna, knew that someone would read it while driving? Absent such proof, there is no case… But he was concerned with the larger issue of extending liability through digital means.

"The real question here," he said, "is, do we as a society want to impose a duty on the non-driving texter for accidents that happen when a recipient is driving? For now, it seems a reasonable place to draw the line at this: The person driving has a duty not to text. And the person on other end of line has no duty unless there are special circumstances."

CBS News also had an article.

The judge in the case said he expects to decide whether to allow the inclusion by tomorrow.

Tuesday, May 22, 2012

Ohio Supreme Court Rule Amendments

The Ohio Supreme Court announced yesterday that it has adopted amendments to its rules of evidence, appellate procedure, civil procedure, criminal procedure, and juvenile procedure, including those to Juv. R. 3, which mandates that juveniles consult with legal counsel before waiving their right to an attorney in specific cases.

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, two new rules:
•Civil Procedure Rule 65.1 was adopted regarding civil protection orders to reconcile procedures applicable to civil actions and the requirements and purposes of the governing statutes.

•Juvenile Procedure Rule 5 was adopted that requires juvenile courts to use a juvenile’s initials rather than his or her full name in court decisions and press releases.

Unless the General Assembly passes a concurrent resolution of disapproval, the rules take effect on July 1.

Text of Amendments

Monday, May 21, 2012

Northwestern University/University of Michigan National Exonneration Registry this morning reports that "perjury, faulty eyewitness identification and prosecutorial misconduct are the leading reasons for wrongful convictions according to the first national registry of exonerations – a database compiled in collaboration by the University of Michigan and Northwestern University, which has identified 873 faulty convictions in the past 23 years that have been recognized by prosecutors, judges or governors." [ National Registry of Exonnerations ]

Cases in the registry were identified from court documents and included catalogs of wrongful convictions maintained by advocates for the wrongfully convicted, including the The Innocence Project, a New York-based group that pursues exonerations through DNA testing, the article said, but that their numbers, which do not include many cases in which innocent suspects plead guilty to avoid the risk of more serious punishments or cases that have been dismissed because of legal error without new evidence of innocence, represent only a fraction of the problem in the nation's criminal justice system.

"Despite the data, the registry concluded that the 'overwhelming majority of convicted defendants were guilty' … Most never disputed their guilt and few ever present substantial post-conviction evidence of innocence.When that does happen, however, it should be taken seriously. …We cannot prevent all false convictions, but we must not compound these tragedies by stubbornness or arrogance or, worst of all, indifference."

Northwestern University Center on Wrongful Convictions

CBS, Time, The L.A. Times and Boston Herald all had articles.

Friday, May 18, 2012

Supreme Court taser/reasonable force case

More Taser mention for those of you who missed this earlier this week.

The New York Times last Monday noted "the multitude of varying rulings coming from the lower courts all around the country regarding the use of tasers, when their use by the police amounts to excessive force, the fact that sooner or later the Supreme Court will have to bring order to this area of the law, and -- perhaps a new twist -- the justices, next week, being scheduled to decide whether to hear an appeal from three Seattle police officers who say they are worried about the future of what they call 'a useful pain technique.'"

The case here in point involved a seven-month pregnant woman driving her 11-year old son to school when she was pulled over for speeding, going 32 miles per hour in a school zone where the speed limit was 20. Lady said she would accept a ticket but drew the line at signing it, which state law required at the time, thinking, wrongly, that by signing it it was an acknowledgment of guilt. Refusing to sign, though, was a crime, and the two officers on the scene summoned a sergeant, who instructed them to arrest the woman, who then refused get out of her car, at which point the officers tasered her in the thigh, arm, and neck before dragging her into the street, laying her face down and cuffing her hands behind her back.

In the months that followed, the Times article continued, the woman gave birth to a healthy baby girl; was convicted of refusing to sign the ticket, a misdemeanor, but not of resisting arrest; and sued the officers who three times caused her intense pain and left her with permanent scars, though no further serious injuries.

"The officers won a split decision in October from a 10-member panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, where the majority said the officers had used excessive force but nonetheless could not be sued because the law in the question was not clear in 2004, when the incident took place. While the ruling left the three officers in the clear, it did put them -- and their colleagues -- on notice that some future uses of Tasers would cross a constitutional line and amount to excessive force…. The bottom line, in any event, was that the officers had won. They have nonetheless appealed to the Supreme Court, in an effort to clear their names and preserve the freewheeling use of 'a useful pain technique.'" [ Petition for Certiorari & 9th. Circuit Decision ]

Last week we noted the Cincinnati Police Department's taking notice of the study done by Indiana University electrophysiologist Dr. Douglas Zipes of eight cases involving the TASER X26 ECD published by American Heart Association journal, "Circulation," which presented the first ever scientific, peer-reviewed evidence that Tasers can cause cardiac arrest and death ( Here ); and, two years ago, we reported Taser-issue cases in Columbus and here in Cincinnati. Both of those cases involve suspects being injured – one seriously – after being tasered while running from police and are still in proceedings.

Wednesday, May 16, 2012

Cellphones, Texting & Driving....

If you're driving on the streets of Ohio, you'd best put away your cell phones, iPads and other electronic devices while you're doing it in the next couple of days --- especially if you're a teenager -- with the passage and expected signing of House Bill 99 , which now makes texting or reading a text while driving a minor misdemeanor carrying a fine of not more than $150 ... juveniles under 18 driving on temporary instruction permits or probationary driver's licenses are "subject to a fine of $150 and a 60-day license suspension on a first offense, and $300 fine and one-year license suspension for subsequent offenses."

A article this morning reported that "as of Tuesday, 15 people had been charged with driving while texting in the City of Cincinnati, which has had a texting ban since October 2010 outlawing sending, reading or writing a text message or accessing the Internet while driving. A violation of that ordinance is a minor misdemeanor and is punishable by a fine up to $150… Columbus also has a texting ban and 100 people were ticketed in the past two years, and, since Jan. 1 when their law went into effect, Kentucky law enforcement has handed out 144 citations, nine in Northern Kentucky. Violations of KRS 189.292 or KRS 189.294 are fines of twenty-five dollars ($25) for the first offense and fifty dollars ($50) for each subsequent offense."

A second article, expanding on above, notes that "research from Ohio State University has shown cellphone use by pedestrians has led to more than 1,000 emergency-room visits nationwide in 2008, and a growing number of communities around the country are trying to get that message across to stave off pedestrian accidents that can happen when people walking become too engrossed with their phones."

Liberty Mutual Insurance's "Responsibility Project," some three years ago foresaw this scenario in an article entitled, "Should Walking While Texting Be Illegal?" That article was followed up last summer.

Friday, May 11, 2012

Cincinnati Police reviewing taser policies

Following up on our posting from last week about the potential dangers associated with Tasers, a article yesterday afternoon relates the Cincinnati police department's revising its Taser policy in light of those findings that they can, in fact, cause death.

In taking that study under advisement, Chief of Police James Craig is reportedly the first local law enforcement official to confirm it's being taken seriously & is prompting changes within his department.

"I am concerned about it because, like most police chiefs, I am a big supporter of the tool," Chief Craig was quoted as saying. "We know that the tool has saved lives, and we know it's minimizing injuries to both police officers and suspects. Based on this report we are looking at our existing policy and will be making some revisions."

But he also said he wouldn't be pulling Tasers from officers' belts, and that this was not the first time the device's policy has been revised.

"We are not going to eliminate the use of Taser. We just want to make sure we are doing it within what this evidence-based report is suggesting," he said. "I think that what's suggested - the key point – is elevated heart rate and the taser coming in contact close proximity to the heart if someone has an elevated heart rate. Usually when we have contact with suspects, it’s pretty clear their heart rate is elevated."

"Nothing is definite yet," Craig stressed. "It’s all under review. Once it’s looked at and reviewed by the city administration, we will come out with our revised policies."

Out-of-state sex offender's failure to register based on "substantially equivalent" Ohio offense

The Ohio Supreme Court further clarified aspects of state sex offender registry provisions last Tuesday in explaining its analysis that a court must undertake in determining (1) whether an out-of-state conviction is a sexually oriented offense that triggers a duty to register in Ohio and (2) the sanction for failure to register as a sex offender in Ohio based on a duty that arises from an out-of-state conviction. [ See State v. Lloyd, Slip Opinion 2012-Ohio-2015 ]

In considering the issue brought by Wesley Lloyd – involving charges filed for failure to report a change of address to the respective county sheriffs when he moved from Auglaize County, Ohio to Holmes County, Ohio in June 2008 – the
Court's summary noted the "6-1 decision, authored by Chief Justice Maureen O’Connor, explained that the legislature established that an out-of-state conviction is a sexually oriented offense under Ohio law if it is or was 'substantially equivalent' to any of the Ohio offenses listed in R.C. 2950.01(A)(1) through (10). But the legislature did not explain the analysis that courts must undertake in making the substantial-equivalence determination.

"'In order to determine whether an out-of-state conviction is a sexually oriented offense in Ohio,'" the Chief Justice wrote, "'a court must initially look only to the fact of conviction and the elements of the relevant criminal statutes, without considering the particular facts disclosed by the record of conviction. If the out-of-state statute defines the offense in such a way that the court cannot discern from a comparison of the statutes whether the offenses are substantially equivalent, a court may go beyond the statutes and rely on a limited portion of the record in a narrow class of cases where the fact-finder was required to find all the elements essential to a conviction under the listed Ohio statute. To do so, courts are permitted to consult a limited range of material contained in the record, including charging documents, plea agreements, transcripts of plea colloquies, presentence reports, findings of fact and conclusions of law from a bench trial, jury instructions and verdict forms, or some comparable part of the record."

The court held further that when a person who was convicted of a sexually oriented offense in another state and was required to register with police in that state moves to Ohio, that person is subject to the sex-offender registration requirements applicable to an Ohio offender convicted of the "substantially equivalent" Ohio offense, and is subject to the same penalties for failure to register in Ohio as an Ohio offender who committed the equivalent Ohio offense.

Wesley Lloyd had been convicted of aggravated sexual assault in Texas in 1995, and served a seven-year prison sentence there, the Court summary's background said. In the fall of 2005 he moved to Auglaize County, Ohio, and was told by the Auglaize County sheriff that he was required to register in Ohio as a sexually oriented offender. Lloyd registered with the Auglaize County sheriff as instructed in compliance with Ohio's pre-2008 (Megan's Law) sex-offender registration statute. In 2008, he received notice that he had been reclassified by the Ohio attorney general as a Tier III sex offender under the newly enacted Ohio Adam Walsh Act, and would thereafter be subject to more stringent registration requirements. Lloyd continued to register as instructed, last registering with the Auglaize County sheriff in May 2008.

Then on June 2, 2008, he moved to Holmes County, Ohio, and although he telephoned the Auglaize County sheriff's office to inform it of his move, he did not give the Auglaize County sheriff advance notice of his move and did not appear in person at the Holmes County sheriff’s office, as required. On June 12, 2008, he was arrested by Holmes County authorities and subsequently charged with three separate violations of Ohio’s sex offender registration statute: (1) failure to register with the Holmes County Sheriff within three days of moving to Holmes County, (2) failure to provide written notice to the Holmes County Sheriff of intent to reside in Holmes County at least 20 days before moving there, and (3) failure to provide written notice to the Auglaize County Sheriff of intent to move to Holmes County at least 20 days before moving. He was convicted on all counts and sentenced to three years’ imprisonment on each count, to be served concurrently.

On appeal, the Fifth District Court of Appeals vacated Lloyd's conviction on the charge of failure to provide 20 days' advance notice to the Holmes County sheriff., reasoning that pursuant to the Supreme Court of Ohio's June 2010 decision in
State v. Bodyke, Lloyd was required to register in accordance with Megan's Law, not the Adam Walsh Act, and the duty to give advance notice to the sheriff in the county to which one moves arises only under the Adam Walsh Act. The appeals court, however, affirmed the remaining two convictions. [ Fifth District's decision ]

Thursday, May 10, 2012

Officers' constitutional privacy supercedes public record laws

The Columbus Dispatch reports the Ohio Supreme Court's holding this morning that "law-enforcement agencies are not required to publicly identify police officers when they face credible threats of physical retaliation for their on-the-job actions, their constitutional right to privacy superseding Ohio's public-records laws."

Supreme Court justices were unanimous in their ruling in the appeal of a case filed by The Cincinnati Enquirer against the Cincinnati Police Department spawned by the paper's having sought the names and identifying information of two police officers who were shot in a 2010 confrontation with members of Iron Horsemen motorcycle gang at a local bar. Cincinnati police refused to release the officers' names, saying they were potential targets for retaliation by the gang since its "national enforcer" was killed in the shootout with officers.

"Citing the U.S. Sixth Circuit Court of Appeals' 1998 decision in Kallstrom v. Columbus, a case in which several police officers sued the city for disclosing their personal information to a lawyer representing gang members against whom they had testified in a drug conspiracy case," the Court's summary said, "the court rejected the Enquirer's claim that the records it sought in this case were not exempt from disclosure because the newspaper posed no threat to the safety of the wounded officers or their families.

"(A)s the Sixth Circuit in Kallstrom I observed ... 'although there was no indication that the (organization requesting their records) posed any threat to the officers and their family members, disclosure even to that group of the officers’ phone numbers, addresses, and driver's licenses, and their family members’ names, addresses and phone numbers 'increases the risk that the information will fall into the wrong hands.'"

See State ex rel. Cincinnati Enquirer v. Craig, Slip Opinion No. 2012-Ohio-1999

Tuesday, May 08, 2012

Pew Center mobile device survey

Sabrina Pacifici over at nationally-acclaimed beSpacific , had a post yesterday about a recent Pew Research Center Internet & American Life Project on mobile communication devices. ( Here )

"The rapid adoption of cell phones and, especially, the spread of internet-connected smartphones are changing people's communications with others and their relationships with information. Users' ability to access data immediately through apps and web browsers and through contact with their social networks is creating a new culture of real-time information seekers and problem solvers,” Pew found.

Its new nationally representative survey – conducted between March 15 and April 3, 2012 among 2,254 adults age 18 and older -- found evidence of this “just-in-time phenomenon,” with 88% of adults being cell phone owners and 46% smartphone owners.

“Some 70% of all cell phone owners and 86% of smartphone owners,” the study found, “used their phones in the last 30 days to perform activities such as coordinate a meeting or get-together (41%), solving unexpected problems they or someone else had encountered (35%), deciding whether to go to a certain business, such as a restaurant (30%), finding information to help settle an argument ( 27%) or looking up the score of a sporting event (23%), and getting traffic or public transit information (20%).

19% had used their phones to get help in an emergency situation in the last month.

‘Just-in-time information’ searches take place in the wider context of people using their smartphones to get needed information right away, too, though, the study found, with some 65% of smartphone owners saying they’ve used their cell phones to get turn-by-turn navigation or directions while driving -- 15% doing so on a typical day.

Monday, May 07, 2012

Sentence omitting mandatory license suspension void

The Ohio Supreme Court last Thursday held that when a trial court is legally required to impose a driver license suspension as part of the sentence for a criminal offense, but omits including that penalty when pronouncing sentence on a defendant, the sentence pronounced by the court is void and the defendant must be resentenced, although that resentencing is limited to imposition of the required suspension notice. In a separate syllabus holding, the court also ruled that the trial court’s journal entry recording a defendant's conviction need not take note of a property forfeiture ordered by the court in order to be a "final, appealable order" under Ohio Criminal Rule 32(C). [ State v. Harris, Slip Opinion No. 2012-Ohio-1908 ]

With respect to the omission of a mandatory driver license suspension rendering an imposed sentence void, the Court's summary said Justice McGee Brown reviewed a line of decisions culminating in State v. Fischer (2010), in which the Supreme Court held that a criminal sentence that omitted a mandatory term of post-release control was void and the defendant must be resentenced, but that the scope of the resentencing was limited to imposition of the required term of post-release control.

"In affirming that it was appropriate to extend the legal analysis of Fischer to the Harris case, Justice McGee Brown wrote: '(A) mandatory driver's license suspension is akin to post-release control. Like post-release control, a driver's license suspension is required by law to be part of an offender's sentence. ... In addition, if a trial court fails to include either mandatory term, the executive branch is unable to impose either post-release control or a driver's license suspension once an offender leaves prison. ... Unlike the imposition of court costs, a mandatory driver's license suspension is a criminal sanction. Because a mandatory driver's license suspension is a statutorily mandated term, we hold that a trial court's failure to include this term in a criminal sentence renders the sentence void in part. ... Our conclusion reflects the well-established principle that a court acts contrary to law if it fails to impose a statutorily required term as part of an offender’s sentence.'"

Secondarily, the Court disagreed with the Eighth District Court of Appeals' holding that a trial court's forfeiture finding against a defendant must be included in its judgment entry in order to make that entry a "final, appealable order," Justice Brown here writing: "We held in State v. Baker (2008) that a judgment of conviction complies with Crim.R. 32(C) when it sets forth four essential elements. ... We have since clarified those elements to be (1) the fact of conviction, (2) the sentence, (3) the signature of the judge, and (4) entry on the journal by the clerk of courts. ... If a judgment of conviction includes these substantive provisions, it is a final order subject to appeal under R.C. 2505.02.

"In Harris I, the Eighth District held that because the sentencing entry failed to include any information about the forfeiture specifications, the entry was not a final, appealable order. ... However, to reach this conclusion, the forfeiture would necessarily have had to fall within the scope of one of the four essential elements. We do not find that a forfeiture constitutes any of the substantive requirements necessary for compliance with Crim.R. 32(C)."

Ohio jury service reforms

The Ohio General Assembly back on February 21st. passed House Bill 268, reorganizing, modernize the language, and removing obsolete provisions from the state’s jury service law. [ Ohio Revised Code Chapter 2313 ]

The law goes into effect in two weeks, on Tuesday, May 22nd.

ORC Chapter 2313 establishes the office of commissioner of jurors and the procedures through which potential jurors are selected & summoned, obligations of jurors, the grounds for which jury service may be excused or postponed, and the compensation of jurors. HB 268 rearranges provisions of Chapter 2313 renumbering a number of sections and repealing others, although it retains much of the content of repealed sections. It also corrects cross-references to conform to the reorganization and adopts gender-neutral language where necessary. [ House Bill 268 Text & Analysis ]

The Legislative Service also notes that "much of the language that has simply been moved from one Revised Code section to another, either verbatim or amended to some degree," and includes a table of corresponding sections at the end of its analysis showing where provisions of prior law may be found in the act, if they have not been repealed altogether.

HB 268 requires county jury commissioners "to compile an annual jury source list from information provided by the Board of Elections and, at their discretion, from information provided by the Registrar of Motor Vehicles, as well as an annual jury list from which the names of potential jurors are drawn, but eliminates the requirement that a person who is not registered to vote must have a valid driver's license to serve as a juror."

It also eliminates language governing jury challenges based on misnomers, allows challenges to entire arrays based on violations of the nondiscrimination provision, and addresses juror privacy protection during voir dire by modifying the provision that allows a prospective juror to request an in-camera(closed to the public) hearing regarding questions presented to him/her.

Victim Notification

The Columbus Dispatch over the weekend reported the state's senate approving a bill, 33-0, that would give victims of crime and their families greater opportunity to argue against a convict's parole.

Dubbed "Roberta’s Law," after Paul Raymond Saultz's raping & then beating to death 15-year-old Roberta Francis in 1974 after having been just released from a state mental hospital for molesting a 12-year-old girl, serving 30 years for the crime against Roberta, and then molesting yet another girl two years after being paroled, the law would create a mandatory notification system for victims and their families when a convict is released.

Current law allows victims and families to opt in to a notification system when a convict is being released or having a parole hearing… That's not good enough, the Dispatch quoted Senator Kevin Bacon, who sponsored the bill along with Jim Hughes, as saying. "They're already going through a traumatic time," Bacon said. "They're not all going to remember to (opt in)." Under the new, when convicts are given a parole board hearing or are about to be paroled, victims and families would be notified automatically unless they opt out of the system. This would give them the chance to argue against parole at the hearing.

SB 160
Bill analysis

Thursday, May 03, 2012

Ohio Cellphone/Texting Legislation this morning notes Ohio lawmakers poised to vote on a bill that aims to keep cellphones, iPads or other electronic devices out of the hands of teen drivers when they are behind the wheel, with the Senate scheduled to vote on the measure today after a transportation committee made a series of changes that include loosening a proposed statewide texting ban on adult drivers. [ Text and Analysis of Ohio HB 99 ]

The Governors’ Highway Safety Association website, "a unique partnership among federal, state and local governments to address the problem of unsafe highways" created by The Highway Safety Act of 1966 which established the State and Community Highway Safety Grant Program (U.S.C. Title 23, Section 402), commonly known as the "402 program," has a compilation of "State Cell Phone Use and Texting While Driving Laws" current as of this month. Kentucky and Indiana both already ban cell phones & texting by all drivers as primary law.

Last week, U.S. Transportation Secretary Ray LaHood called for a federal law to ban talking on a cell phone or texting while driving any type of vehicle on any road in the country at a distracted-driving summit in San Antonio, Texas, that drew doctors, advocates and government officials, saying tough federal legislation was the only way to deal with what he called a "national epidemic."

Ohio Juvenile Criminal Record Searches

The Columbus Dispatch yesterday morning had an article about Ohio House Bill 524 and Senate Bill 337, both "target removing barriers to employment for the one in six Ohioans with non-violent misdemeanor or felony records."

Under some of the provisions of those bills some automatic barriers in state law to the hiring of ex-felons, such as obtaining some occupational licenses, would give way to discretionary calls on ex-convicts who can demonstrate they've been rehabilitated; employers, and the general public, would be prevented from learning if would-be hires had criminal records as juveniles under the age of 17, and the Ohio Bureau of Criminal Investigation would be restrained from reporting juvenile convictions in the 780,000 criminal-background checks it conducts each year for employers and others.

Last week we reported the Equal Employment Opportunity Commission's approving & issuing new rules for employers using criminal background checks, calling for careful consideration of how and when such reviews can be used in pre-employment screenings and in the workplace because of their potential to be biased against certain groups, such as racial minorities. EEOC’s press release is here., BusinessWeek, The New York Times, and Reuters all had articles as well. [ EEOC's new Enforcement Guide ]

Retroactivity of Padilla claims

Jurist last Monday reported that the US Supreme Court had decided to hear Chaidez v. United States, an ineffective assistance of counsel case addressing retroactivity aspects of the Court’s 2010 holding in Padilla v. Kentucky, 130 S.Ct. 1473 2010) [ Chaidez v. United States, 11-820 ( order granting certiorari )( Petition for certiorari )].

The Court in Padilla had held that the Sixth Amendment guarantee of effective assistance of counsel requires a criminal defense lawyer to advise a non-citizen client that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation. The question here is whether Padilla applies to persons whose convictions became final before its announcement, with the U.S. Seventh Circuit Court of Appeals holding that it is not retroactive and, thereby, creating a rift among the circuit courts. [ 7th. Circuit decision ]

Roselva Chaidez came to the U.S. from Mexico in 1971, and became a lawful permanent resident in 1977. In June 2003, she was indicted on three counts of mail fraud in connection with a staged accident insurance scheme in which the loss to the victims exceeded $10,000. On the advice of counsel, she pled guilty on December 3, 2003 and was sentenced to four years’ probation on April 1, 2004; judgment was entered in her case on April 8, 2004. She did not appeal. Her guilty plea, however, made her eligible for removal from the United States as an aggravated felon [ See 8 U.S.C. § 1101(a)(43)(M)(i) ] and the government initiated removal proceedings in 2009. In January 2010, she filed a motion in district court alleging ineffective assistance of counsel with respect to her decision to plead guilty at the trial court level, maintaining that her defense attorney failed to inform her that a guilty plea could lead to removal and that she would not have pled guilty if she had been made aware of the immigration consequences associated with that plea.

The 7th. Circuit in its holding recounts that, next, “On March 31, 2010, while Chaidez’s motion was pending before the district court, the Supreme Court issued its decision in Padilla. In a thoughtful opinion, Judge Gottschall acknowledged that this case presents a close call, but concluded that Padilla did not announce a new rule for thr purposes set forth in Teague v. Lane, 489 U.S. 288 (1989), but rather was an application of the Court’s holding in Strickland v. Washington, 466 U.S. 668 (1984). Having concluded that Padilla applied to Chaidez’s case, the district court considered the merits of her coram nobis petition, granting it and vacating her conviction.” The 7th. Circuit subsequently concluded that Padilla did announced a new rule that didn’t fall within either Teague exception, and reversed that judgment. [ District Court’s holding ]

“The courts are now squarely and openly divided over the issue,” according to Chaidez’s petition for certiorari. “The Seventh (at issue here) and Tenth Circuits (United States v. Chang Hong, 10thCir. 2011) have held that Padilla does not apply retroactively on collateral review because it is a new rule under Teague…. In reaching their decisions, both the Seventh and Tenth Circuits acknowledged that they were reaching ‘the opposite conclusion’ from decisions from the Third Circuit (United States v. Orocio, 645 F.3d 630, 641 (3d Cir. 2011). and the Massachusetts Supreme Judicial Court.”

Additionally, Chaidez’s petition says, “The division among federal and state courts is not only widely acknowledged; it is now entrenched. At least sixty-four judges in the federal and state judiciaries have ruled on whether Padilla is a new rule. Thirty-six have concluded that Padilla is merely an application of Strickland, and twenty-eight have held that it announced a new rule. Both sides of this debate have thoroughly ventilated their views, yet the conflict only continues to deepen. Furthermore, courts of appeals on both sides of the conflict have denied petitions for rehearing en banc.”

Tuesday, May 01, 2012

Indiana University study supports Taser hazards this morning carried a story about an article published by American Heart Association journal, "Circulation," which presents the first ever scientific, peer-reviewed evidence that Tasers can cause cardiac arrest and death in a study done by Indiana University electrophysiologist Dr. Douglas Zipes of eight cases involving the TASER X26 ECD.

Tasers are used by law enforcement agencies across Greater Cincinnati and Northern Kentucky such as the Cincinnati police and the Hamilton County Sheriff's Office, and about 16,000 agencies, internationally, use them, in part because they've been being marketed as non-lethal deterrents, according to the article, administering an electric shock that usually temporarily immobilizes a person's muscles so officers can gain control of the subject. But since 2001 more than 500 people have died following Taser stuns, the article says, according to Amnesty International, which said in February that stricter guidelines for their use was "imperative." ( Amnesty report )

The device's manufacturer, Taser International, has changed safety warnings over the years, and since 2009 has warned law enforcement agencies to avoid stunning suspects in the upper chest as a way of alleviating concerns that the weapon's volt shock could affect the heart.

This morning's article references the Nov. 2003 incident with Nathaniel Jones at the University of Cincinnati, which, it says, prompted campus police to stop using the device, but, in fact, an LLRX article last summer 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.

"What most sparked public outrage in the Rodney King incident was the beating that the LAPD officers gave him as he lay on the ground; officers kicked him repeatedly and hit him with their nightsticks even as he offered no resistance. Whether because the videotape had not captured the administration of the Tasers or because they were not as well known or understood at the time as kicks and nightstick blows, few reports of the beating singled out the Taser use as part of the excessive force used against King.

"But as Taser use becomes more and more widespread among law enforcement agencies and the rationale for their use has changed from providing an alternative to lethal force to providing a means of controlling recalcitrant members of the public, legal challenges to their use by law enforcement--among other things--have been mounted."

"This study doesn't say that we should abandon using Taser devices," Dr. Zipes, who is also a professor emeritus of medicine with the Krannert Institute of Cardiology at the Indiana School of Medicine, said in an Indiana University Health news release,
MSN Health reported, "but it does show that users should exercise caution, avoid chest shocks and monitor the person after shock to ensure there are no adverse reactions."

The New York Times and U.S. News & World Report have more.
Abstract & Access to PDF purchase of Dr. Zipes article here