Tuesday, January 21, 2014

New Revised Ohio Probate Forms

  The Ohio Supreme Court has adopted probate court forms that concern real property certificates of transfer, foreign adoption, and disinterment applications -- two existing forms that have been revised, and nine new ones.

 See Supreme Court’s announcement here and complete language of forms here.

 Amendments take effect on March 1, 2014.

Proposal Expanding Scope of Ohio Criminal Sentencing Commission

 The Supreme Court’s news service last week related Ohio Supreme Court Chief Justice Maureen O’Connor’s proposing to  significantly extent the scope of the Ohio Criminal Sentencing Commission, advocating expanding the commission “into a larger, more comprehensive entity that can work to help all of the state’s justice system partners … to combat crime in our state in an inter-related, multi-dimensional way” --- also changing its name to the Ohio Criminal Justice Commission.

  Chief Justice O’Connor indicated that “for many years, we have seen different organizations take on a sliver of the larger criminal justice pie, only to lament that their focus was too limited or did not include a review of other issues that tie into the issue which they were reviewing,”

  While requiring legislative approval, under the proposal, the new Criminal Justice Commission would continue to address sentencing but would also take on related issues such as probation and risk assessment, juvenile justice, data collection and sharing, domestic violence, specialized dockets, access to legal representation, and traffic issues.

Thursday, January 16, 2014

On attorney disciplinary measures…

The role of coincidence & serendipity in the world not being questioned, we’re noting a Plain Dealer article earlier this week about an attorney lawyer facing disbarment Tuesday arguing to the state supreme court that the recommended punishment was too harsh, while the Office of Disciplinary Council, pursuing the case, that the punishment was not harsh enough. (Report recommending permanent disbarment)

  Interestingly enough, the Supreme Court’s news service that same day carried an article on "Practical Disciplinary Advice for Lawyers", suggesting some practical advice for attorneys facing those kinds of hearings. That article noted that  “2012 statistics from the Board of Commissioners on Grievances & Discipline show more than 44,000 active registered lawyers and 4,280 total grievances filed that year -- Statistically, about 1 grievance for every 10 attorneys, suggesting about a 1 in 10 chance of being grieved, although more than 50 percent of grievances will be dismissed on intake or after an initial review.”

A Handle on Cloud Computing

  A Law.com/ Corporate Counsel Lexis link surveys some ideas about cloud computing’s becoming an ever-bigger part of the future with all types of corporations  jumping on the proverbial bus, and a big question to be looking at being “is this bus of the future secure? Is it reliable? Is it safe?”

  “Some experts think that cloud computing could cut corporate IT costs by half,” the article’s introduction says. “Because of their scale, cloud providers can ostensibly pay for the best in technology and expertise, which translates into better reliability and security than a company could manage in-house. Clouds also add flexibility, with usage-based fee structures and the ability to scale performance up higher than any typical corporate IT department could even dream of. But with such a formidable upside, there needs to be a considerable downside for cloud adoption to be even debatable, and, Unfortunately, there is.”

  The article briefly overviews corporate considerations such as hacking/leaks & security, how backups & contingencies are planned & managed, and knowing the relevant laws to ensure corporate interests are protected contractually in a field that’s diverse and constantly changing, involving work that will be new to most lawyers.

  The thing of it is, though, is that, while this article is directed toward corporations and presumably larger organizations, some – maybe all – might also be worthwhile reads for smaller groups such as partnerships or even solo practitioners.

Tuesday, January 14, 2014

Scam Emails About Phony Court Cases Carrying Viruses

 The Ohio Supreme Court’s news service this morning is passing on a warning of a national alert that has been issued about an email scam  in which emails purporting to come from federal and state courts are, in fact, infecting recipients with computer viruses.

  “The Security Operations Center of the Administrative Office of the U.S. Courts is reporting the emails are instructing recipients to report to a hearing on a specified day and time, while also instructing recipients to review an attached document for detailed case information. The attachments or links in the email are a malicious program launched infecting the recipient's computer.

  You are requested  that if you should  receive an email regarding a federal court case or matter of which you are unaware, to  contact the federal court in your jurisdiction before opening any attachments or links, using the court locator to find your court's contact information.

  LexisNexis had more information posted here.

Friday, January 10, 2014

Certified Ohio Question re. Status of County Jail/ State Prison in Interstate Agreements

   Cleveland’s Plain Dealer last Tuesday wrote about a certified appeals case in which the key issue centers in how a phrase “a penal or correctional institution of a party state,” which appears in the interstate agreement – meant to resolve outstanding charges in one state when a prisoner is detained in another state, rather than waiting for the prisoner’s release --  should be applied, and  whether where the prisoner is jailed affects how an interstate agreement set up to resolve pending charges against that prisoner. [ See State of Ohio vs.James D. Black, Case 2013-0805 docket].
   James Black, having charges outstanding on him in three Ohio counties, the article said,  Asked,  in March 2011 under the multi-stateagreement, that charges against him in those counties be resolved while he was serving a sentence in a county lockup in Cecil County, Md.
  He was returned to Ohio to face his charges here, and under the agreement, should have gone to trial within 180 days, appearing for arraignment in Ashland on Aug. 1, 2011, but then being returned to Maryland  before going to trial. The outstanding charges in Ashland County made him ineligible for parole or community work programs, according to his lawyers and he was released in September 2011;  later to be arrested in Ohio for not appearing at a December 2011 trial date in Ashland County, A jury convicted him of theft and breaking and entering in March 2012 and he was sentenced to a year in prison.
  Black unsuccessfully sought to have those charges dismissed, arguing that since the county missed the deadlines in the multi-state agreement he could no longer be tried for them. While the 5th. Circuit appellate court agreed and overturned his conviction, the state appealed that ruling, certifying aconflict with an 8th. Circuit holding ten years earlier.
The 5th. Circuit in its ruling in fact referred to that earlier holding saying:

   “…“The State relies upon the decision of the Eighth District Court of Appeals in State v. Wyer, 8th Dist. 82962, 2003 -Ohio- 6926, in support of its position. In Wyer, the Eighth District found an out-of-state county jail in which the defendant was incarcerated for an unrelated offense was not a “correctional institution of a party state” under the terms of the IAD; therefore, the IAD was inapplicable to that defendant. Id. At 15. The decisions of the Eighth District Court of Appeals are persuasive, but not binding, authority on this Court. Rule 4(A), Supreme Court Rules for the Reporting of Opinions. We do not find Wyer persuasive.

¶24} Appellant cites a number of appellate cases from other states in support of his position, including
Escalanti v. Superior Court, 165 Ariz. 385, 799 P2d 5 (Ariz. App 1990). In Escalanti, the Arizona Court of
Appeals addressed the issue of whether the IAD applies to a defendant held in county jail as well as a defendant held in state prison. Answering in the affirmative, the Escalanti Court found: Ashland County, Case No. 12-COA-018 8

 “{¶25} “Article III of the Agreement ensures a speedy trial to those in a ‘penal or correctional institution.’ We believe that this language clearly included the Santa Barbara County Jail. Clear language in a statute is given its usual meaning unless impossible or absurd consequences would result. In re Marriage of Gray, 144 Ariz. 89, 91, 695 P.2d 1127, 1129 (1985); Balestrieri v. Hartford Accident & Indem. Ins. Co.,
112 Ariz. 160, 163, 540 P.2d 126, 129 (1975). A ‘penal institution’ is a ‘generic term to describe all places of confinement for those convicted of crime such as jails, prisons, and houses of correction.’Black's Law Dictionary 1020 (5th ed. 1979). A ‘correctional institution’ is a ‘generic term describing prisons, jails, reformatories and other places of correction and detention.’ (Citation omitted).” Id. at 387.

“{¶26} The Escalanti Court further noted for purposes of the IAD, “the only difference between the state
prison and the county jail for an incarcerated person is the sign on the building. Nothing in Article III of the
Agreement expressly limits its speedy trial guarantee to prisons. Nor does any language in the Agreement deny its protection to prisoners incarcerated in county jails. Instead, the Agreement by its terms applies to
all penal and correctional institutions.” Id.

“{¶27} We agree with the rationale of Escalanti, and find the IAD applies to offenders held in county
jails as well as state penal or correctional facilities. The IAD specifically states, “This agreement shall be
liberally construed so as to effectuate its purposes.” R.C. 2963.30, Art. IX. As stated, supra, the purpose of
the IAD is “to encourage the expeditious and orderly disposition of such charges and determination of
the proper status of any and all detainers based on untried indictments, informations or complaints.””

   Oral arguments were heard on Tuesday, Jan. 7, 2013.

Thursday, January 09, 2014

6th. Circuit Child Pornography/Biased Juror Remand

   The Sixth Circuit Court of Appeals in remanding a Youngstown Northern District child pornography case last Tuesday centering on a juror’s admitted probable inability & reluctance to view physical evidence related to the case, held in pertinent parts…  [USA v. Trent Shepard , Case 11-4399]
   A juror’s verdict must “be based upon the evidence developed at the trial . . . regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies.” Irvin v. Dowd, 366 U.S. 717, 722 (1961). The question of whether a trial court has seated a fair and impartial jury “is essentially one of credibility,” and “the trial court’s resolution of such questions is entitled, even on direct appeal, to ‘special deference.’” Patton v. Yount, 467 U.S. 1025, 1038 (1984) (citation omitted). As this court has held, even a juror’s expressed doubts about his or her impartiality “does not necessarily entail a finding of actual bias.” Hughesv. United States, 258 F.3d 453, 458 (6th Cir. 2001). As examples, the court in Hughes cited Patton, 467 U.S. at 1032, Murphy v. Florida, 421 U.S. 794 (1975), United States v. Rigsby, 45 F.3d 120 (6th Cir. 1995), and United States v. Pennell, 737 F.2d 521 (6th Cir. 1984), all cases in which at least one juror initially expressed preconceived notions regarding a defendant’s guilt or in which other information known by the jurors might have cast doubt on their ability to render an objective, impartial verdict. In this case, the district court exercised its discretion to hold that the circumstances did not require a mistrial, once the court had seated the juror in question and the jury had been sworn…”

   “… Absolutely nothing in the appellate record indicates that Juror 29’s innocuous comments to the other juror that “it would be a rough day” or that he was not sure he would “be able to view those pictures” resulted in prejudice so obvious that we should find an abuse of discretion by the district court in holding otherwise. In fact, the questioning during voir dire and the statements made by defense counsel during opening argument indicated that the images and videos to be presented to the jury were “horrendous,” “disgusting,” could make one sick to one’s stomach, and make the case “so difficult.” Against such a backdrop, Juror 29’s comments to the other juror did not inject any information or context into the trial or into the jury room that was not already conceded by the defendant himself… 

   “On the other hand, it is equally clear that Juror 29 should not have been permitted to sit on Shepard’s jury. There was, for example, no effective rehabilitation of Juror 29 in this case. He had responded honestly to a jury questionnaire by admitting that “the fact that the defendant is charged with crimes involving sexually explicit materials [would] cause [him] to be predisposed either for or against the defendant or the government.” He followed up that admission during voir dire by stating that “just the nature of the case” would cause him to view the defendant in a different light. It is true that the district court then elicited from Juror 29 responses indicating that, if chosen as a juror, he would “accept the responsibility to decide the facts in dispute” and would “follow the law as [the judge] instruct[ed].” Juror 29 also claimed that he did not “know of any reason why [he] could not be fair and impartial in this case” and was, therefore, accepted and sworn in as a juror. Subsequently, however, he informed the district court that further reflection led him to the inevitable conclusion that, in fact, he could not fulfill all the responsibilities imposed upon him as a juror in this case…” 

  “In his memorandum opinion explaining why he did not excuse Juror 29 from the panel, the district judge rationalized that it was not necessary for the juror to observe the pornographic images because neither party disputed that the images and videos should be classified as child pornography. Therefore, the district court concluded, the jury’s primary function in this prosecution was to determine only whether Shepard  knowingly accessed those images and videos, an exercise that the court apparently thought would not require viewing the visual evidence. On one level, that decision is understandable…. 

  “…Nevertheless, the role of the district judge is not to gloss over serious issues for the sake of preventing additional work for the court. Rather, in a criminal trial, the judge is entrusted with the responsibility of ensuring that the constitutional rights of the accused are safeguarded from the whims of public opinion, prejudice, and expediency. Here, despite his earlier pronouncement that he could be fair and impartial in serving on Shepard’s jury, Juror 29 later informed the court that he had serious doubts about his ability to do so. Although the district court sought to frame those doubts merely in terms of an ability to view certain evidence, Juror 29’s’s comments on the morning that evidence was actually presented were much more troubling. In fact, when asked by the prosecutor whether he could carry out his obligation “so that the government and the defendant can both have a fair and impartial jury,” Juror 29 responded that he wished he could but did not think he would be able to do so. Instead, he expressed without qualification his belief that child pornography was evidence of “the lowest part of humanity” and is “just disturbing.” He concluded his explanation by reiterating that he had stated on the jury questionnaire that he would be prejudiced against the defendant because of Shepard’s alleged contact with child pornography and that it would be difficult for him to overcome that prejudice… “ 

  “In light of this evidence of bias and inability to follow the dictates of the oath, we conclude that the district court did abused its discretion in denying Shepard’s request to have Juror 29 removed from the jury. In order to preserve the sanctity of the defendant’s Sixth Amendment right to be tried by a fair and impartial jury, it thus becomes necessary to reverse the defendant’s conviction, vacate his sentence, and remand this matter to the district court for a new trial. See id. at 463 (“Failure to remove biased jurors taints the entire trial, and therefore . . . [the resulting] conviction must be overturned.” (citation omitted)).”

   Law.com/National Law Journal has a subscription-access article on the case this morning as well.


Wednesday, January 08, 2014

2013 – 2014 Transition

One last glimpse of the 2013—2014 transition is perhaps in order as introduced by Jeremy Pelzer, Northeast Ohio Media Group in the Cleveland Plain Dealer last week.

Pelzer wrote that “for the Ohio General Assembly, 2014 is shaping up to be a year where not only economic items -- from tweaking the state budget to proposed changes to severance and local income taxes -- but a number of other issues including a package of elections bills; and proposed changes to the state's self-defense and gun laws will be at the forefront of their agenda."


Pelzer’s article noted “legislators will be looking at raising state taxes on oil and gas drilling, as well as overhauling Ohio’s municipal income tax system. The oil and gas severance tax legislation, House Bill 375, would raise an estimated $1.7 billion in new revenue during the next 10 years – money to be used to reduce state income taxes, as well as pay for state regulation of drilling and to plug orphaned wells. The oil and gas industry, which helped House Republicans draw up the bill, says they’re willing to pay more in exchange for having stable severance tax rates.”

He also mentions House Bill 5, the long-discussed legislation aimed at standardizing and streamlining parts of the state’s patchwork municipal income tax system to be addressed by the Senate, having passed the House last November. “Business groups have pushed for the changes for years, saying it’s often confusing and costly for companies who do work in multiple cities to comply with all the different tax forms, deadlines and rules,” Pelzer wrote, “but with local governments fighting the bill, saying it would slash their revenues at a time when they’re already reeling from state funding cuts and the end of the tangible personal property tax and estate tax.”

The Plain Dealer article however did not address the Internet sales tax being back on the table with Supreme Court action could mean green light for online add-on, which a Cincinnati.com article just before the New Year's relating “inaction by Congress and a recent decision by the nation’s highest court have reopened the debate on forcing Internet retailers to collect Ohio’s sales tax did. The U.S. Supreme Court’s declining to hear a case brought by online retailers against the state of New York, which has imposed a tax on Internet sales since 2008,” the article said, “effectively opens the door for other states, including Ohio, to pass legislation requiring every seller in the online commerce realm to collect sales tax from customers in states where they have a physical presence. This would include retailers such as Amazon.com, but it also could include small independent operators who could be overwhelmed by the thousands of taxing districts in the U.S.”

A Washington Post article lastweek notes “Rep. Lamar Smith (Tex.), a former chairman of the House Judiciary Committee who remains a panel member’s planning a renewed effort to bar multiple taxes on digital goods and services, offering a revised bill that seeks to overcome objections that stalled a past legislative effort, prohibiting what the effort’s supporters say are discriminatory taxes on music, pictures and other digital goods and services sold over the Internet.” There are no measures here at this point.

'Stand your ground'/ Gun Control

Pelzer’s article also discusses the Ohio Senate’s taking aim at legislation that would make sweeping changes to the state’s concealed-weapons laws, including a so-called “stand your ground” self-defense provision. – again, picking up on HB 203, passed by the Ohio House in November, which would eliminate Ohio's law requiring a person to retreat before using deadly force in self defense. Under current state law, residents have no duty to retreat only when they are in their homes, cars, or the vehicles of immediate family members – a so-called “castle doctrine.” Supporters say the change would reaffirm Ohioans' rights to act in self-defense, but opponents worry that it would lead to more gun deaths. Other parts of the bill are designed to streamline firearm background checks, toughen rules for concealed handgun permits, and expand recognition of Ohio’s conceal-carry permits to other states.

Medicaid and Health Care

We’re all well aware of the launch of the Affordable Care Act and the repercussions there, with articles as recent as a few days ago still reporting problems such as The Washington Post’s yesterday saying “while government officials have spent months scrambling to fix the federal health-care law’s botched rollout, another issue is looming that could create new costly headaches for states, health plans & insurance companies -- and patients – a process commonly called “churning” in Medicaid, created when persons have seasonal jobs or pick up extra hours at certain times of the year, and lose eligibility with those temporary income spikes, only to re-enroll in the state programs when their income again drops. With several million people expected to shift between the health exchanges and Medicaid with these income fluctuates in 2014, that could be costly for states and insurance companies, and patients could wind up having gaps in coverage or having to switch health plans or doctors.

Gov. John Kasich turned to the state’s obscure Controlling Board, made up of six lawmakers and one administration official, for approval after Ohio's GOP-controlled legislature balked on the issue of Medicaid expansion last October, which was unsuccessfully challenged in the Supreme Court before our becoming the 25th. state to come under state-level federal guidelines.[ See Supreme Court's news service article ]

The Ohio House’s 2014 agenda will include a package of bills to reform Medicaid and tackle health-care issues, the Plain Dealer’s article said, including House Bill 317 which would, among other things, streamline Medicaid costs, increase penalties for drug offenses against pregnant women, offer job training for Medicaid recipients, and require the state to give a limited supply of medication to newly released inmates with mental health issues.

“Other measures would give tax deductions for health services at free clinics, set up rules for prescribing narcotics to those with chronic pain, and prohibit the Medicaid program from limiting the number of hours that recipients may receive community addiction and mental health services….. (although) none of the legislation directly addresses the Controlling Board’s controversial decision in October to accept $2.5 billion in federal funds for Medicaid expansion, bypassing legislative objections.

Monday, January 06, 2014

New Year Brings Several Ohio Rule Changes

   Without belaboring things too much, we want to pass on a few notes posted by the Supreme Court’s new service as we start things off for 2014, with their reminder of several new rules that took effect Wednesday, Jan.  1 judges and lawyers should take note of  including mention of the adoption of a new rule and form to implement a new statutory requirement that Ohio’s courts notify police about violent offenders with a mental illness discussed lastweek. Text and form for from that rule here available.

Thursday, January 02, 2014

GED test overhauled; some states opt for new exams

 The Associated Press is reporting “an upgraded GED exam and two new competing equivalency tests offered in several states will usher in the potential for a new era in adult education testing beginning in the New Year.

    “The GED (General Educational Development) exam, and probably best-known,  was created in 1942 to help World War II veterans who dropped out of high school use college benefits offered under the GI Bill, and has been owned by the nonprofit American Council on Education since its inception. This is its first face-lift in more than a decade.

  “The revamped test is intended to be more rigorous and better aligned with the skills needed for college and today's workplaces, but will only be offered on a computer, and at a higher cost. What consumers pay for the test varies widely and depends on state assistance and other factors --- and the advent of new tests has sent thousands of test takers rushing to complete sections of the old test they had left incomplete. Once the upgrade happens, the old scores of ‘partial passers’ will no longer be accepted.

“Even before its launch, officials in many states have balked at the cost increase and at doing away with paper-and-pencil testing. At least nine states — New York, New Hampshire, Missouri, Iowa, Montana, Indiana, Louisiana, Maine and West Virginia — severed ties with the GED test and adopted one of the two new tests that are entering the market. Three others — Wyoming, New Jersey and Nevada — will offer all three. Tennessee will offer the GED test and one other, and other states are expected to decide what to do in the coming months.”

   Ohio apparently is going to be continuing with the GED, as the Columbus Dispatch this morning reported “Ohioans without high-school diplomas will have to pay more this year to take a test for an equivalency certificate -- is expected to cost $120 — triple the cost of last year — with the switch from a paper test to a computerized version -- but can receive vouchers toward that expense if they get career counseling beforehand at certain sites.”

  With that the changes to the GED test opened the door for states to begin looking for alternatives, AP reports, with two vendors responding --- Educational Testing Service, a nonprofit that also administers the Graduate Record Examination, and also having developed a high school equivalency exam called the High School Equivalency Test, or HiSET; and CTB/McGraw-Hill, a for-profit company that is helping states develop assessments of Common Core standards, which put an emphasis on critical thinking and spell out what reading and math skills students should have at each level; It developed a high school equivalency test called the Test Assessing Secondary Completion, or TASC.

  Both say they offer a quality test at a lower price. They also allow their tests to be taken without a computer and are open to accepting the scores of GED test takers who have partially passed the old test that recently expired, as long as their state approves, although Amy Riker, national executive director for HiSET, acknowledged that both new vendors have a lot of work to do to educate people about the new exams.

Clarifying Ohio Supreme Court’s consideration of Accelerated Joint Bachelor’s/Law Degree Proposed Program Rule Changes

 The requirements regarding Accelerated Joint Bachelor’s/Law Degree joint programs not being completely intuitive without some background on them, we’d like to clarify some points in that regard.

  Director of Bar Admissions, Lee Ann Ward, advises that “the language regarding joint programs is being deleted from the rule under the proposal ---  Indeed, the proposal keeps only the requirement that an applicant receive a bachelor's degree prior to admission to practice in Ohio; any 'time element' for receipt of a bachelor's degree prior to licensure has been deleted.

  “The rule currently requires seven years of study for a joint degree program and so does not allow for a 3+3 program, rather simply allowing for approval of a 7 year joint program by the Court where an applicant might receive a bachelor's degree and a law degree at the same time which is an exception to the general rule requirement that the bachelor's degree be received prior to admission to law school.  For instance, Ohio Northern had for many years a joint pharmacy/law program that required 7 years of study and resulted in the degrees being awarded at the same time, and the Court approved that program years ago.  By eliminating any requirement that a bachelor's degree be received prior to admission to law school or approved under the 'special circumstances' noted in Section 1(B)(2) and (3), the schools would be free to set up a 3+3 program where an applicant would receive both a bachelor's and law degree.”

  As the Court’s news service announcement then stated “the Court alerted Ohio college and university presidents to the proposal in a letter and noted that the decision whether to offer a 3+3 program lies with Ohio’s law schools, colleges, and universities. The ‘proposal would only allow for the possibility of 3+3 Programs’ since no law school offers one currently. ‘Thus, creation of 3+3 Programs is ultimately dependent upon the educational community’s desire to establish such programs.’”

Text of Proposed Amendments