Ohio Death Penalty Assessment Taskforce update

The Associated Press and Fox 19 News this morning, along with the Columbus Dispatch, Toledo Blade, and Cleveland Plain Dealer to name a few, reported the Ohio Supreme Court’s Joint Task Force to Review the Administration of Ohio's Death Penalty, appointed in November 2011, recommending that "many of the added factors that contributing to a capital punishment case, such as rape, robbery or burglary, be removed from the state's death penalty law, and that only factors such as the slaying of a child or a police officer, or a killing involving multiple victims, be used to pursue a death sentence."

“The recommendations,” the article says, “follow arguments that crimes such as kidnapping or arson rarely result in death sentences and when they do often carry the greatest risk of racial disparity among defendants.”

Also being mentioned is a recommendation that Ohio create a panel under the attorney general that would review potential death penalty cases before prosecutors take them to trial, and that under current Ohio law, that decision rests solely in the hands of individual county prosecutors.

The committee’s final report isn’t expected until later this year, but it is still reiterated that its purpose is one primarily of appraisal , spurred by the American Bar Association’s “Ohio Death Penalty Assessment Report” in September 2007 . Similar reports were compiled for Indiana, also in 2007, and later, in 2011, for Kentucky, also being taken under advisement.

Additionally, the ABA’s advocacy website has more information and additional state assessment profiles.

Ohio Supreme Court Adopts Rules of Practice and Procedure

The Ohio Supreme Court announced this morning it’s adopting amendments to the annual update to the Rules of Practice and Procedure relating to service by posting, including changes to the rules of appellate procedure, civil procedure, criminal procedure, and juvenile procedure.

“Many of the changes,” the Court’s news service reported, “target inconsistencies, remove outdated concepts, and clarify the rules. The amendments to Civ. R. 4.4 and Juv. R. 16 make it clear that service by posting can be used in initial actions and expand it to post-decree matters. In addition to the traditional “posting” of a notice on the courthouse bulletin board, service would use the county clerk of court’s website if it exists, although the amendments don’t require electronic posting.”


Text of Amendments

Newly Introduced Ohio Legislation

Ohio House Representatives Dorothy Pelanda and Nicholas Celebrezze introduced a bill last Wednesday that would:

• “permit a court to grant a motion for permanent custody of a child if the child or another child in the custody of the parent has been adjudicated an abused, neglected, or dependent child on three separate occasions,

• require the court to appoint a guardian ad litem in any proceeding concerning an alleged dependent child & require guardian ad litem for an alleged or adjudicated abused, neglected, or dependent child to file any motions and other court papers in accordance with rules adopted by the Supreme Court,

• require foster caregivers to use a reasonable and prudent parent standard when authorizing a foster child to participate in activities & exempt the caregiver from civil or criminal liability that results from a foster caregiver's or agency's decisions made in good faith,

• limit the circumstances under which a child is placed into a planned permanent living arrangement.

and Representative Anthony DeVitis a bill

- To authorize a board of education or governing authority of a school to enter into an agreement with a volunteer who is a current or retired law enforcement officer to patrol school premises to prevent or respond to a mass casualty event, and generally provide a board of education or governing authority of a school and to such a volunteer immunity from civil liability for injury, death, or loss arising from the volunteer’s services, and to provide a tax credit for volunteer service.

Bills Addressing Juvenile Aspects of Ohio Criminal/ Sex Offender Registration-Notification Law

Ohio Senator Bill Seitz last week introduced two bills seeking revisions to juvenile aspects of state criminal law and sex offender registration-notification statutes, both now before the Senate Criminal Justice Committee, having had their first hearings.

Senate Bill 143 is essentially concerned with juvenile records and their sealing, community alternative sentencing centers, and issues involving delinquent children at least 18 but younger than 21 held in adult detention facilities.

Senate Bill 144 ‘s proposals seek “to adjust the provisions of Ohio’s Sex Offender Registration and Notification Law to reflect decisions of the Ohio Supreme Court in Hyle v. Porter (2008), 117 Ohio St.3d 165; State v. Bodyke (2010), 126 Ohio St.3d 266; State v. Williams (2011), 129 Ohio St.3d 344; In re C.P. (2012), Slip Opinion No. 2012-Ohio-1446, State ex rel. Jean-Baptiste v. Kirsch (2012), Slip Opinion No. 2012-Ohio-5697, and State v. Howard (2012), Slip Opinion No. 2012-Ohio-5738

Again, the principal orientation here is centered on juvenile aspects, including amendments to Revised Code sections dealing with:

• Delinquent children - juvenile traffic offender definitions (2152.02), Motions to invoke adult portion of dispositional sentence (2152.14),

• Delinquent child subject to sex offender registration and notification law (2152.191), Child committed to legal custody of department of youth services; judicial release (2152.22), Juvenile sex offender registration as part of dispositional order (2152.82), Juvenile sex offender registration at time of release from secure facility (2152.83), Juvenile sex offenders tier classification hears (2152.831), Hearing to review effectiveness of disposition and of any treatment (2152.84), Petitions for reclassification or declassification (2152.85) and the Effect of re-designation of an offense (2152.851).

Specific Sex Offender Registration and Notification statutes being addressed are:

• Definitions sexual predator, habitual sex offender, sexually oriented offender (2950.01),

• Sexually oriented child-victim offenses (2950.011),

• Exchange or release relevant information about sexual predators and habitual sex offenders (2950.02),

• Notice of duty to register and periodically verify information (2950.03), Duty to register form (2950.04),

• Tier-classification of registered sex offenders (2950.031), Tier-classification of incarcerated sex offenders (2950.032)

• Continuing duty to comply with terminated provisions (2950.033), Personal registration with sheriff (2950.041), Notification of attorney general of delayed registration (2950.043), Notice of residence address change (2950.05), Periodic verification of current residence address (2950.06), Commencement date for duty to register (2950.07), Public inspection of information and records in possession of sheriff (2950.081),

• Prohibiting offender from establishing residence near school (2950.034), Notifying victim of sexually oriented offense of registration (2950.10),

• [Effective 1/1/2014] Notice of identity and location of offender in specified geographical notification area (2950.11), [Effective Until 1/1/2014] [Effective 1/1/2014] State registry of sex offenders - duties of attorney general. (2950.13),

• Database link to current information on offenders (2950.131), Department of rehabilitation and correction to provide information prior to release (2950.14), Termination of duty to comply with sex registration laws (2950.15),

• and Penalties (2950.99)

The Ohio Legislative Service's analyses of Senate Bill 143 and Senate Bill 144 as introduced are here.

North Carolina reinstituting death penalty executions

NBC/Reuters this morning is reporting North Carolina's governor, Pat McCrory, “hoping to resume executions in his state, on Wednesday signed the repeal of a law that has allowed death row inmates seek a reduced sentence if they could prove racial bias affected their punishment."

The Racial Justice Act, the only law of its kind in the United States, had led to four inmates getting their sentences changed to life in prison without parole after taking effect in 2009. McCrory, a Republican, said repealing the law would remove the "procedural roadblocks" that had kept North Carolina from executing anyone since 2006 despite there being 152 people on death row.

The article also reported that “The American Civil Liberties Union of North Carolina criticized the repeal on and accused state leaders of ignoring widespread evidence of systemic racial bias. Additionally, the repeal applies retroactively to cases with pending Racial Justice Act claims, a factor certain to result in additional legal wrangling, Mark Rabil, director of Wake Forest University law school's Innocence and Justice Clinic in Winston-Salem, said.‘To me, it's a violation of due process. I don't really know what the legislature thinks they've done with our money other than buy a lot more litigation.’”

Ohio 1st. District Court of Appeals upholds ‘Adam Walsh’ Provision Extending Juvenile Sex Offender’s Registration Requirement Beyond Defendant’s 21st Birthday

Hamilton County’s 1st. District Court of Appeals last week upheld as constitutional a provision of Ohio’s Adam Walsh Act (AWA) requiring juvenile courts to sentence certain juvenile sex offenders to registration requirements that extend beyond the defendant’s 21st birthday. [In Re Raheem L., 2013-Ohio-2423]

“The case involved a Cincinnati youth identified in court records as Raheem L., who was adjudicated a delinquent child for committing an act when he was 16 years old that would have constituted gross sexual imposition had he been an adult,” the Court’s news service summary said. “Hamilton County Juvenile Court committed Raheem to the legal custody of the Department of Youth Services until his 21st birthday, suspending that commitment and putting him on probation instead, but further classifying him as a juvenile offender registrant and a Tier II sex offender/child-victim offender under R.C. 2152.83(A) and imposing the mandatory registration requirements of Chapter 2950, as amended by the AWA, for a maximum compliance period of 20 years .

Raheem’s appeal had pointed out that being classified as a Tier II offender under the AWA he was not eligible to petition for declassification and removal of his registration requirements until three years after completing his suspended term of commitment − effectively extending his sentence for a juvenile offense until his 24th birthday. His attorneys argued that by imposing punishment for delinquency that would extend beyond his 21st birthday, juvenile court violated his right to due process under the state and federal constitutions.

In explaining its decision, the Court here said, ”Raheem cited no case law recognizing a fundamental right of a child to avoid punishment for delinquency that extends beyond the child’s 21st birthday. Moreover, he provides no basis for us to say that such a right is deeply rooted in our nation’s history and tradition. Since their inception, the juvenile courts have constantly evolved as policymakers and courts have grappled with ‘the inherent tension * * * between the goals of rehabilitation and the protection of society.’ In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, at ¶ 75. We believe that tying a fundamental right to this moving target would be unwise. Further, we note that on two recent occasions, the Ohio Supreme Court has upheld various aspects of the blended sentencing framework, which incorporates prison terms for delinquency that are served beyond the child’s 21st birthday. See In re D.H., 120 Ohio St.3d 540, 2009-Ohio-9, 901 N.E.2d 209 (holding that due process does not require a jury when imposing a serious youthful offender dispositional sentence under R.C. 2152.13); In re J.V., 134 Ohio St.3d 1, 2012-Ohio-4961, 979 N.E.2d 1203. We, therefore, conclude that no fundamental right has been implicated in this case….

“(Further)… although the Ohio Supreme Court has stressed the importance of rehabilitation in the juvenile-court system, it has also recognized that the state has “valid interests in enforcing its criminal laws against juveniles and, in at least somecases, in requesting that the juvenile court impose significant penalties in their dispositions * * * .” In re C.S. at ¶ 77. With this in mind, together with our highly deferential standard of review, we cannot say that the punishment authorized by R.C. 2152.83(A) is irrational.”

Ohio Medicaid efforts

A new poll for the Health Foundation of Greater Cincinnati from the University of Cincinnati asking respondents whether they favored or opposed expanding Medicaid to provide health insurance to more low-income uninsured adults showed 63.1 percent of adults support such an expansion, while 30 percent are opposed and 6.9 percent didn’t know, according to a Cincinnati.com article over the weekend.

That article noted “Gov. John Kasich proposed expanding the medical insurance program for the poor to hundreds of thousands of Ohioans in his 2013-14 budget, but his fellow Republicans, who dominate both the Ohio House and Senate, did not include the expansion in their budget plans. Legislators are now considering ways to cut Medicaid costs, possibly expanding coverage at a later date. State health officials say they need six months to set up an expansion, which will be possible on Jan. 1 under the federal Affordable Care Act…. Under the health reform law – 'Obamacare' to many conservatives – the federal government would pay for three years to expand Medicaid to Ohioans who fall within 138 percent of the federal poverty line, or about $32,500 for a family of four.”

An article at CityBeat.com quotes a statement by Health Foundation CEO Jim Schwab as saying, "The Health Foundation supports the expansion of Medicaid in Ohio because we believe that it will have a positive impact on the health of uninsured Ohioans who will be newly covered by Medicaid," adding that “"We also believe that expansion of Medicaid will have a positive impact on Ohio’s economy as was validated in an economic impact study that the Foundation helped underwrite earlier this year that found the Medicaid expansion would insure nearly half a million Ohioans and save the state about $1.8 billion in the next decade. The Ohio Health Issues Poll findings show that the majority of Ohioans also support the expansion…"

That scenario has alienated conservative Republicans and the poll reflected that as well. Meanwhile, Ohio has a couple bills seeking to curb the costs of Medicaid introduced last week in both the Senate and House.

“The bill won’t include expanding Medicaid to more Ohioans, and it won’t say whether Ohio will take money from the federal government to do so,” Rep. Ron Amstutz was quoted as saying in a second Cincinnati.com article last week. “Our goal is to do as much as we can, as soon as we can, to address the rising cost curves of Medicaid ... as well as trying to help individuals who are currently served by Medicaid to move up and off of it. If that happens, we can introduce the discussion of whether we can add new (Medicaid) members to be served. We’ve got to get the cost curve changed enough to feel like we have a stronger consensus.”

For now, General Assembly leaders are seeking to get conservatives’ support, rather than talk about expansion or funding. So leaders have created a bill that will address conservatives’ concerns about Medicaid’s costs and people’s long-term participation in the program,

Cincinnati parking meter outsourcing case update

The Ohio First District Court of Appeals handed down a ruling last Wednesday, June 12th., allowing the City of Cincinnati to move forward with leasing its parking system to the Port of Greater Cincinnati Development Authority, Cincinnati.com reported the other morning, having the potential to end the city’s 3-some-odd-month taxpayer legal battle over parking meters & tickets. ( McQueen v. Dohoney, 2013-Ohio-2424 )

The decision revived the City’s hopes for a $92 million windfall that could “spark more Downtown development, create thousands of new jobs in Uptown and help balance the city’s budget in the coming years, but also could have the potential of hurting neighborhood and downtown businesses and entertainment venues for the next three decades because meter fees and tickets will increase,” according to the article.

Opponents of a Cincinnati ordinance passed back in March which related to and authorized the city manager to execute an agreement for the long-term leasing of the city’s parking system, sought an ex parte temporary order enjoining the city & city manager from taking any action in furtherance of the ordinance., declaratory & injunctive relief, and attorney fees, claiming to have a legal right to referendum on the issue that would be lost if the city were permitted to act upon the newly enacted ordinance.

“Ultimately, the common pleas court declared that Ordinance No. 56-2013 was subject to referendum, and granted injunctive relief prohibiting the city from taking any action to implement the ordinance pending the outcome of any referendum,” the Court here recounted, (although) it did not address “other plaintiffs-relators’ arguments in support of referendum because it found the issue that it had determined to be dispositive.” That is what was appealed.

Grossly oversimplified, the 1st. District’s complex, 38-page, says that “For almost 90 years, Hamilton County courts ruling on issues related to Article II, Section 3 of the Charter have interpreted that provision consistent with the city’s position that the citizens of Cincinnati did not reserve the power to approve or reject emergency municipal legislation by popular vote…. in .Schultz v. Cincinnati, 13 Ohio Op. 186, 28 Ohio Law Abs. 29, 1938 Ohio Misc. LEXIS 906, *7(C.P.1938) (“By the adoption of [section] 2 of the ordinance [, which contains an emergency clause,] the people of the City of Cincinnati are denied the right to express their views concerning this ordinance by the referendum, for by operation of [section] 2 of the ordinance[,] it becomes immediately effective.”)…”

Opponents plan to appeal.

Trial courts can extend probation when basis rational

Franklin County’s 10th. District Court of Appeals earlier this week ruled that a trial court has the discretion to extend a probation period when there is a rational basis to do so. The case instance here was a decision to extend the probationary period of a convicted sex offender until after he had successfully completed a sexual offender treatment program. [ State v. Weston, 12AP-607 on  6/11/2013, cited as 2013-Ohio-2426 ]

The defendant entered a guilty plea in trial to an amended count of criminal mischief. During his hearing, the trial court accepted the plea and informed him that he would be placed on probation for a period of one year with notice that that period might be extended.

The county’s probation department subsequently filed a "statement of fact” near the end of that year recommending that his probation be extended in order for him to complete a sexual offender treatment program, with the trial court conducting a hearing during which appellant indicated he would not agree to sign a form extending his probation. Trial court continued and extended appellant's probation, issuing an entry to that effect and stating in part: "Can terminate as soon as counseling is completed." On appeal, appellant ‘s single assignment of error was that the trial court erred in extending the term of his community control, in that there was no evidence he violated any of the conditions of his probation and that the record lacks sufficient justification for the court's action.

The appeals court in pertinence said, “… a trial court… need not find a violation in order to extend probation if there exists a rational basis and such extension is within the limits as prescribed by R.C. 2951.07. See State v. Puhl, 6th Dist.No. WD-96-059 (May 2, 1997) (while there was no evidence appellant willfully violated condition of probation requiring him to successfully complete any recommendations for treatment in sexual offender's program, trial court had rational basis for ordering 18-month extension of probation so appellant could continue needed therapy)…. At the time appellant entered his guilty plea, the conditions of probation included a requirement that he ‘[c]omplete any recommended counseling or treatment as determined by probation officer or assessment.’”

Dept. of Justice Chapter 11 fee guideline amendments

American Lawyer’s AmLaw Daily yesterday had an article about new rules & guidelines unveiled by the U.S. Trustee Program -- the branch of the U.S. Department of Justice responsible for overseeing the federal bankruptcy process -- aimed at ensuring that law firms charge clients they represent in Chapter 11 cases rates comparable to those they bill in other practice areas.

“The guidelines,” AmLaw’s article states, “which will go into effect for cases filed after November 1, but are not legally binding, are the product of a 18-month-plus process that represents the first thorough review in nearly 20 years of how attorneys in large bankruptcies are compensated and reflect a desire on the government's part to bring bankruptcy-related fees in line with recession-driven changes to client expectations and law firm pricing practices that are affecting other types of legal work. While the Trustee's office routinely scrutinizes attorneys fees and expenses in Chapter 11 cases, only judges can withhold requested fees or require law firms to submit additional details as a condition of receiving payment for their work.”

DNA Patents

Deoxyribonucleic acid …. Most of us can’t even say that let alone try to understand even the basics, but we do know that DNA is the molecule that encodes the genetic instructions used in the development and functioning of all known living organisms, and, according to Wikipedia, and many viruses. Along with RNA and proteins, DNA is one of the three major macromolecules essential for all known forms of life. End of game – but wait, now there’s more, and while most of us will never go there, you still never know...

Association for Molecular Pathology v. Myriad Genetics is a patent law case that’s made it all the way to the U.S. Supreme Court. Justices heard oral arguments back on April 15th.; we’re passing it along as an offset to illustrate the breadth of DNA testing & research.

“It is a natural human trait, “Lyle Denniston at ScotusBlog wrote in recapping those arguments “— of judges, too — when one doesn’t quite grasp a very complex idea, to reach for something commonplace for comparison. For the nine Justices of the Supreme Court, imperfectly versed in biochemistry, it was most useful to talk about how a baseball bat gets created, and how the sap of a plant in a forest in the Amazon might be analyzed for its powers to cure human disease. But those very analogies strongly suggested that an inventor probably cannot get a patent for taking something out of the human body, and manipulating it without changing its nature.”

“Biotechnology innovators have secured thousands of U.S. patents on genes for some 30 years, defining the legal rights to medical and agricultural products worth hundreds of billions of dollars,” Greg Stohr and Susan Decker Bloomberg, also at ScotusBlog, wrote the day before. “Now the U.S. Supreme Court is considering whether that was all a big mistake with the debate on whether human genes can be patented, and hearing arguments from doctors, patients and scientists who say patents are stifling clinical testing and research.”

Myriad Genetics Inc.’s patents on genes linked to breast and ovarian cancer are what’s being challenged, Stohr and Bloomberg’s article continues, saying “a decision against gene patenting would ripple across a host of industries — including biotechnology, agriculture, industrial microbiology and pharmaceuticals., the case having implications for the growing field of personalized medicine and efforts to map the human brain and discover new uses for embryonic stem cells, and potentially barring patents on discoveries outside the DNA context.”

They quote Robert Cook-Deegan, a public-policy professor at Duke University and its Institute for Genome Sciences and Policy. As saying “the intellectual framework that comes out of this decision could have an impact on other patents, and affect agricultural biotechnology, environmental biotechnology, green-tech, the use of organisms to produce alternative fuels and other applications.”

One perhaps illustration of these possibilities might be the Court’s recent, May 13th., Bowman v. Monsanto Co., 11-796 case in which an Indiana farmer was sued for patent infringement when he saved and replanted seed genetically engineered by Monsanto and sold subject to a licensing agreement that permits farmers to plant the purchased seed in one, and only one, growing season. Growers may consume or sell the resulting crops, but may not save any of the harvested soybeans for replanting. While the farmer had the defense of patent exhaustion, which gives the purchaser of a patented article, or any subsequent owner, the right to use or resell that article, the courts consistently disagreed.


Federal Circuit Court's decision

Petition for a writ of certiorari
Brief of respondents Myriad Genetics, Inc., et al. in opposition

Ohio bills introduced

Aside from The Michelle Knight, Amanda Berry, and Gina DeJesus Survivors of Abduction Act. (HB 197) introduced Wednesday, readers may want to take note of the following as well.

Ohio House Representatives Terry Boose & Ron Gerberry introduced State Public Defender, HB 186, June 4th., accompanying SB 139, which was introduced on May 29th. seeking to:

- To provide a 50 per cent reimbursement to the counties for their indigent defense costs, increase the guaranteed reimbursement rate for such indigent defense costs, to require the State Public Defender to approve the establishment of county public defender commissions, approve the appointment or retention of the county public defender, and to set a statewide schedule of hourly rates and per case maximums to be paid to appointed counsel, to eliminate the option for a county to operate a joint-county public defender system, to permit the State Public Defender to create state-run regional and district offices that would operate in lieu of the county-run systems, to allow the State Public Defender to use the Indigent Defense Support Fund to pay the state’s portion of costs for the regional and district offices, to provide that the Governor’s next appointment to the Ohio Public Defender Commission be from a list of nominees submitted by the County Commissioners Association of Ohio, and to allow the State Public Defender to contract directly with a municipal corporation to provide representation in municipal ordinance cases.


HB 186 was referred to State and Local Government Committee while SB 139 is currently in the Senate Finance Committee for consideration.

HB190 PREVAILING WAGE LAW-PUBLIC IMPROVEMENT PROJECT, was introduced by Ronald Hood on June 4th. and Referred to Commerce, Labor and Technology Committee. It seeks:

- To increase the threshold to trigger the requirement that the prevailing wage be paid for work on vertical public improvement projects and to allow political subdivisions and state institutions of higher education to elect whether to be subject to the Prevailing Wage Law for a public improvement project.

Provisions relating to minority business enterprises; county commissioners and correctional facilities, port authority educational and cultural facilities, cooperative agreement for sales tax levy and bond issuance for construction, renovation, & operation of professional sports facilities and for educational and cultural performing arts facilities; transportation, convention, coastal management, sewer, water development, and “special improvement districts”; and public works hour & wage considerations were all touched on.

U.S. Supreme Court’s Maryland v. King DNA collection landmark

Alonzo King was arrested April 10, 2009 for menacing a group of people with a shotgun and charged with first- and second-degree assault. As part of his being processed at the Wicomico County Central Booking facility personnel took a DNA sample pursuant to provisions of Maryland’s DNA Collection Act (or Act), and , upon that record’s being uploaded to Maryland’s DNA database, matched to a sample collected in an unsolved 2003 rape case.

The initial match linking King to the rape was presented to a grand jury which indicted him for the rape. Detectives obtained a search warrant and took a second DNA sample from King, which again matched the evidence from the rape.

King moved to suppress the DNA match on the grounds that Maryland’s DNA collection law violated the Fourth Amendment. The Circuit Court upheld Maryland’s statute with King then pleading not guilty, but being convicted of the rape charges and sentenced to life in prison without the possibility of parole.

That appealed, a divided Maryland Court of Appeals struck down the portions of the Maryland act authorizing collection of DNA from felony arrestees as unconstitutional; the majority concluding that a DNA swab was an unreasonable search in violation of the Fourth Amendment.

The case then proceeded to the U.S. Supreme Court with Justice Kennedy handing down his decision this past Monday, June 3rd. ( here ), holding in pertinence that “When officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment… and, (by citing District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U. S. 52, 55, 129 S.Ct. 2308), that DNA testing may ‘significantly improve both the criminal justice system and police investigative practices by making it possible to determine whether a biological tissue matches a suspect with near certainty.’”

Kennedy was joined by Justices Thomas, Breyer, Alito, and Chief Justice Roberts, while Justice Scalia dissented, joined by Ginsburg, Sotomayor, and Kagan.

An important case that’s attracted much scrutiny from the media and legal & political communities for over a year, the majority opinion is obviously favorable to the twenty-eight states already having DNA-collection laws on their books --- and the Ohio Supreme Court, last year in State v. Emerson, 134 Ohio St.3d 191, 2012-Ohio-5047 , extends that even further in its holding that “…a person does not have standing to object to the retention of his or her DNA profile or the profile’s use in a subsequent criminal investigation, and the state is authorized to retain the DNA profile and to use it in a subsequent investigation even though the profile was obtained from a sample taken during the investigation of a crime of which the person was acquitted” --- but Justice Scalia’s dissent here is an ominous warning as well.

“…while the Court is correct to note that there are instances in which we have permitted searches without individualized suspicion,” he wrote, ‘[i]n none of these cases. . . did we indicate approval of a [search] whose primary purpose was to detect evidence of ordinary criminal wrongdoing.’ Indianapolis v. Edmond, 531 U. S. 32, 38 (2000). That limitation is crucial. It is only when a gov¬ernmental purpose aside from crime-solving is at stake that we engage in the free-form “reasonableness” inquiry that the Court indulges at length today.

“… The objects of a search incident to arrest must be either (1) weapons or evidence that might easily be destroyed, or (2)evidence relevant to the crime of arrest. See Arizona v. Gant, 556 U. S. 332, 343–344 (2009); Thornton v. United States, 541 U. S. 615, 632 (2004) (SCALIA, J., concurring in judgment). Neither is the object of the search at issue here.

“…The Court repeatedly says that DNA testing, and entry into a national DNA registry, will not befall thee and me, dear reader, but only those arrested for ‘serious offense[s].’ … I cannot imagine what principle could possibly justify this limitation, and the Court does not attempt to suggest any. If one believes that DNA will ‘identify’ someone arrested for assault, he must believe that it will ‘identify’ someone arrested for a traffic offense. This Court does not base its judgments on senseless distinctions. At the end of the day, logic will out. When there comes before us the taking of DNA from an arrestee for a traffic violation, the Court will predictably (and quite rightly) say, ‘We can find no significant difference between this case and King.’ Make no mistake about it: As an entirely predictable conse¬quence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.

“Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an air¬plane (surely the Transportation Security Administration needs to know the ‘identity’ of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection… “

Ohio Michelle Knight, Amanda Berry, and Gina DeJesus Survivors of Abduction Act.

Recognizing of the ordeals suffered by Michelle Knight, Amanda Berry, and Gina DeJesus, Ohio House Representatives John Barnes & minority whip Cheryl Grossman yesterday introduced a bill that would:

-- award at least twenty-five thousand dollars per year from the court of claims victims of crime fund to any survivor of abduction who was abducted for a period of eight years or more; to award free tuition at any state university or college to any such survivor of abduction; to seek a waiver from the United States Secretary of Health and Human Services for medical assistance to be provided for any such survivor of abduction for the duration of the survivor's lifetime.

Provisions of the bill would be named The Michelle Knight, Amanda Berry, and Gina DeJesus Survivors of Abduction Act. (HB 197)

Persons eligible would be “any of persons claiming an award of reparations under Sections 2743.51 to 2743.72 of the Revised Code."

Ohio Law Enforcement Protection Act

Ohio’s Law Enforcement Protection Act (Senate Bill 7), also being known as the Deputy Suzanne Hopper Act, requiring that courts report certain information to local law enforcement agencies for entry into the appropriate National Crime Information Center file it approves the conditional release of a person found incompetent to stand trial or not guilty by reason of insanity, or orders a person convicted of an offense of violence to receive mental health treatment was signed into law yesterday by Governor John Kasich.

Suzanne Hopper, was a Clark County, Ohio sheriff's deputy and mother of two, killed in the line of duty while investigating a report of gunfire at an Ohio trailer park early New Year’s Day two years ago.

In pertinence, “If a court orders a person who pleads guilty to or who is convicted of an offense of violence to receive a mental health evaluation or treatment for a mental illness, the court shall report the conviction and required evaluation or treatment to the local law enforcement agency. The local law enforcement agency shall enter the conviction and required treatment into the national crime information center supervised release file through the law enforcement automated data system. The information reported and entered shall include all of the following:

(1) The name of the court providing the information;

(2) The offense or offenses of violence to which the offender
pleaded guilty or of which the offender was convicted;

(3) Any other information required for the entry of information
into the national crime information center supervised release file.

Legislative Service’s Analysis

Proposed Amended Ohio Protection Order Forms

The Ohio Supreme Court’s news service this morning announced the Court’s entertaining public comment until July 10 on proposed amendments to Sup.R. 10.03 and Protection Order Forms 10-A through 10.05(F).

Diana Ramos-Reardon, domestic violence counsel for the Supreme Court, said changes to Civil Rule 65.1, which clarifies magistrates’ involvement in civil protection order proceedings and became effective last July, necessitated some of the changes to the standardized forms. Other proposed changes to the forms were recommended by the Advisory Committee on Domestic Violence.

The proposed amendments can be viewed here.

Comments on the amendments should be submitted in writing to:

Diana Ramos-Reardon
Supreme Court of Ohio
65 S. Front St., Sixth Floor
Columbus, OH 43215

Or via e-mail to diana.ramos-reardon@sc.ohio.gov

Sixth Circuit remand could open "innocence" door in murder cases

The Columbus Dispatch last Thursday reported the “ Supreme Court’s handing down what could be a significant decision opening the door, at least slightly, in murder cases where defendants claim they are innocent and want the court to consider new evidence submitted well after the original trial.”

The case was that of McQuiggin v. Perkins, 12-126, the 5-4 ruling being decided May 28th, and being penned by Justice Ruth Bader Ginsburg, concluding that there should be a "gateway," albeit narrow, though which offenders can pass if they are able to make a credible case for their innocence regardless of the passage of a deadline, according to the Dispatch’s article. Justice Scalia dissented with Thomas and Chief Justice Roberts joining and Alito joining in parts.

“The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) gives a state prisoner one year to file a federal habeas petition, starting from ‘the date on which the judgment became final.”28 U. S. C. §2244(d)(1)(A). But if the petition alleges newly discovered evidence, the filing deadline is one year from “the date on whichthe factual predicate of the claim . . . could have been discovered through . . . due diligence.” §2244(d)(1)(D)

“Actual innocence, if proved,” the Court said, “serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar, as it was in Schlup v. Delo, 513 U. S. 298, and House v. Bell, 547 U. S. 518, or expiration of the AEDPA statute of limitations, as in this case.”

“The Court has not resolved whether a prisoner may be entitled to habeas corpus relief based on a freestanding actual-innocence claim, Herrera v. Collins, 506 U. S. 390, 404–405, but it has recognized that a prisoner “otherwise subject to defenses of abusive or successive use of the writ may have the federal constitutional claim considered on the merits if he makes a proper showing of actual innocence,” id., at 404.

“The Court has applied this ‘fundamental miscarriage of justice exception” to overcome various procedural defaults, including, as most relevant here, failure to observe state procedural rules, such as filing deadlines. See Coleman v. Thompson, 501 U. S. 722, 750. The exception, the Court’s decisions bear out, survived AEDPA’s passage. See, e.g., Calderon v. Thompson, 523 U. S. 538, 558; House, 547 U. S., at 537–538. These decisions “see[k] to balance the societal interests in finality, comity, and conservation of scarce judicial resources with the individual interest in justice that arises in the extraordinary case.” Schlup, 513 U. S., at 324. Sensitivity to the injustice of incarcerating an innocent individual should not abate when the impediment is AEDPA’s statute of limitations.

Judgment of the Sixth Circuit was vacated and the case remanded.


Sixth Circuit's holding
Perkins’ Petition for a writ of certiorari