Suit alleges juvenile detentions without probable cause in Hamilton County violate constitutional rights

The Children's Law Center of Covington filed a complaint against Hamilton County Juvenile Court officials in federal court this week, alleging that the court's practice of detaining children without first finding probable cause violates their constitutional rights. The Cincinnati Enquirer reports that the suit was filed in the U.S. District Court for the Southern District of Ohio on Sunday on behalf of two minor plaintiffs who were detained in separate cases for multiple days without any finding of probable cause. One plaintiff, S.W.,was held in the detention center for 30 days without a probable cause hearing before ultimately having the case dismissed on the merits after a trial. The other, L.D., suffers from developmental delays and was held for 15 days before adjudication with no finding of probable cause. He was ultimately found delinquent on a lesser charge and sentenced to 6 months of house arrest.

According to the complaint, the Chief Deputy Clerk at the Juvenile Court issues arrest warrants for juveniles without making a finding of probable cause. The Enquirer explains subsequent practices of the County in these cases. After arrest, detention center officials assess and determine whether the child should be detained using factors such as "previous history, current emotional state, statements or interviews or whether there is a risk of self-harm or harm to others." They do not make a finding of probable cause. Ohio law requires that the juvenile have a hearing before a judge or magistrate within 72 hours of detention to determine whether they should remain in detention. This also does not involve a determination of probable cause. The case is then scheduled for another hearing, which must be held within 10 days of detention, or up to 14 for good cause, according to the complaint.

The suit specifically names as defendants Judge John Williams, Administrative Judge to the Hamilton County Juvenile Court; Dwayne Bowman, Superintendent of the Hamilton County Juvenile Court Youth Center; and the Hamilton County Board of Commissioners. The complaint acknowledges that the Ohio Rules of Juvenile Procedure do not specifically require a probable cause determination before an arrest or detention, but asserts that Ohio law requires that detention of a juvenile must be "constitutionally valid." The complaint alleges that the practice of arresting and detaining juveniles without a probable cause determination does not meet this requirement, as it violates both due process rights under the 14th Amendment and the Ohio Constitution, and the 4th Amendment's ban on warrantless searches and seizures.

Plaintiffs further allege that this practice disproportionately impacts African-American children, citing statistics from the Ohio Department of Youth Services and the U.S. Department of Justice that indicate that African-American children were both arrested and detained significantly more than white children in Hamilton County for the years of 2011-2013.

Plaintiffs are seeking to certify the case as a class action, with the class defined as "all children who have or will in the future be arrested on the basis of warrants and those who are or who have been detained at the Detention Center without a probable cause determination." They are requesting injunctive relief to change the practices of the Hamilton County Juvenile Court and are not seeking monetary damages.

The Enquirer reports that Plaintiffs' attorney, Rickell Howard, stated that these protections are provided for adults and should also be extended to children in the justice system. The Juvenile Court administrator stated that they were still reviewing the case and had no comment at this time.

Proposed Ohio bill would require BB guns, air guns to be brightly colored

According to Cleveland.com, Ohio State Rep. Alicia Reese (D-Cincinnati) will be introducing a bill to require certain toy and imitation firearms sold in Ohio to be "brightly colored or have prominent fluorescent strips." This would apply to all BB guns, air rifles and airsoft guns. The proposed legislation is being offered in response to two shooting deaths in Ohio this year where police officers shot individuals who were holding these types of toy guns, mistakenly assuming that they were brandishing weapons.

The first case involved 22-year-old John Crawford who was shot by Beavercreek police while holding an air rifle in a Walmart store in August. The Cincinnati Enquirer published a story with the details of the case in September. Crawford later died from his injuries. The second case involved the fatal shooting of 12-year-old Tamir Rice by Cleveland police on Saturday. Rice had pulled an airsoft gun from his waistband outside a recreation center and a Cleveland police officer shot him. The gun's orange tip indicating that it was a toy had been removed. According to an article on Cleveland.com, Cleveland police confirmed that Rice had not threatened police or anyone else with the gun. Another article from the site describes the shooting and investigation in greater detail, here.

A few other states already have laws that place limitations on the sale of toy guns. According to the Cleveland.com article first referenced above, California has recently passed a bill requiring that all toy and replica guns be brightly colored. Arkansas also has a law prohibiting the sale of certain types of imitation firearms, and Atlantic City New Jersey's city council has instituted a ban on the sale of "realistic toy guns." While federal law requires that toy and imitation firearms be sold with orange tips in the barrel, these can be easily removed or painted after purchase, and Ohio does not currently have any additional restrictions on these type of firearms to make them more identifiable.

The legislation will be introduced in the coming weeks and then reintroduced in the 131st General Assembly in January.The president of Cleveland's police union expressed concerns about the proposed legislation, claiming that criminals may try to mask real weapons by painting them to look like toys. He asserted that the police would still treat even the brightly colored guns as a serious threat.

Rape convictions overturned based on improperly admitted evidence

The Supreme Court of Ohio ruled last week that when evidence of other bad acts is improperly admitted at trial an appeals court must evaluate both the impact that the evidence had on the outcome of the case, and the strength of the remaining evidence in determining whether to uphold a conviction. The case before the court involved defendant Carl Morris who was convicted on two counts of raping his minor stepdaughter in 2009. At trial, in addition to testimony by the stepdaughter (S.K.), the court admitted testimony from her sister that Morris had made advances on the sister as well, and testimony from S.K.'s mother that Morris would kick the family dog if the mother refused his sexual advances.

Morris was convicted and appealed to the Ninth District Court of Appeals, which found that this evidence was not properly admitted under Ohio Evid. R. 404(B) as it could not be admitted to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." The state appealed to the Ohio Supreme Court, which overturned the decision of the Ninth District, holding that the appellate court should have applied an abuse of discretion standard instead of reviewing the evidence de novo. On remand the Ninth District again reversed Morris' conviction, finding that the trial court abused its discretion in admitting the evidence and that the court could only find that the evidence admitted was harmless if it could do so beyond a reasonable doubt. The state appealed again to the Ohio Supreme Court.

The Court examined the language of Ohio Crim. R. 52(A) (the harmless error rule) and found that when evidence is improperly admitted, a court must determine whether the evidence impacted a substantial right of the defendant. The Court held, "And so the real issue when Evid.R. 404(B) evidence is improperly admitted at trial is whether a defendant has suffered any prejudice as a result. If  not, the error may be disregarded as harmless error." Justice Lanzinger, writing for the majority, laid out a three factor analysis for cases where this type of evidence is improperly admitted:

"First, there must be prejudice to the defendant as a result of the admission of the improper evidence at trial... Second, an appellate court must declare a belief that the error was not harmless beyond a reasonable doubt... Third, in determining whether a new trial is required or the error is harmless beyond a reasonable doubt, the court must excise the improper evidence from the record and then look to the remaining evidence."

The Court deferred to the opinion of the Ninth District, which found that the erroneously admitted evidence was inflammatory and the remainder of the case was weak, and affirmed the decision to vacate the conviction and order a new trial.

Justices O'Connor, Pfeifer and O'Neill concurred with the majority. Justice Kennedy penned a dissent, joined by Justice French. Justice O'Donnell also presented a dissenting opinion in the case.

For more information about the case see this article from Court News Ohio and the Ohio Supreme Court docket for the case.

Updates: Planned Parenthood to stay open and H.B. 663 passes House

Some updates from previous posts for you on this Monday morning:

Planned Parenthood
The Cincinnati Enquirer reports that the Ohio Department of Health has granted a variance to Planned Parenthood of Southwest Ohio, allowing their Mt. Auburn clinic to remain open. As we discussed on November 14, Planned Parenthood does not have a transfer agreement with a local hospital to transfer patients in the event of an emergency situation. While the clinic formerly had an agreement with U.C. Medical Center, a law passed in 2013 outlawed transfer agreements with public hospitals.

Planned Parenthood was unable to secure a new agreement with a private hospital, largely because most local private hospitals are religiously affiliated. In lieu of this agreement, Planned Parenthood has partnered with four doctors who have agreed to see patients at local hospitals should an emergency arise. The law permits the ODH to grant an exception to the transfer agreement requirement if alternative arrangements such as this are made. Planned Parenthood had requested this variance, but when ODH failed to act and threatened to revoke their license, they filed suit in federal district court in Ohio. ODH subsequently granted the variance, and Planned Parenthood has dismissed their suit.

H.B. 663
The Columbus Dispatch reports that Ohio House Bill 663, the bill that would grant anonymity to manufacturers of execution drugs and other individuals involved in Ohio's execution process, passed the Ohio House on Thursday. We discussed this bill in detail last week. Opponents of the bill cite concerns with its constitutionality, particularly the limits it imposes on courts, as even a court order cannot override the anonymity the bill confers. The bill will now be taken up in the Ohio Senate.

Details of the President's immigration action plan

Last night, President Barack Obama announced that the White House would be taking executive action to attempt to overhaul the immigration system in the United States. The New York Times reports that this immigration action plan would potentially offer protection from deportation to up to 5 million undocumented immigrants. The action is controversial, as Obama is acting unilaterally in this matter, in response to Congress' failure to pass comprehensive immigration reform. President Obama urged those in Congress who opposed him to "pass a bill."

The New York Times offers a concise description of the President's plan, which does not include a way to obtain full legal status or eligibility for ACA benefits. The Times article describes who would be impacted, why the President is taking this action now and how Americans feel about the issue. The Department of Homeland Security lays out each aspect of the plan, here. Some details include:

Strengthening Border Security: The DHS will commission three task forces comprised of individuals from different law enforcement agencies to provide border security. One will focus on the southern ocean-based border, another the southern land border and the third on providing support and investigations for the other two. DHS will also continue providing the additional resources that it began supplying in response to the influx of children at the border this summer, such as additional ICE and Border Patrol agents.

Revising Removal Priorities: The DHS will now prioritize removal of illegal immigrants in the following order:
(1) Individuals who are threats to national security, convicted felons, gang members, and individuals caught at the border while entering the U.S. illegally.
(2) Individuals convicted of "significant or multiple misdemeanors" and individuals who entered or reentered this country illegally after January 1, 2014, but were not caught at the border.
(3) Individuals who have not been convicted of a crime, but who have disobeyed a removal order issued on or after January 1, 2014.
*People who entered the U.S. illegally before January 1, 2014, who have never disobeyed a removal order and have never been convicted of a "serious offense" will not be priorities for removal.*

Expanding Deferred Action for Childhood Arrivals (DACA): Previously, individuals who were born after June 15, 1981,who entered the U.S. before June 15, 2007 and were under 16 when they entered were eligible to obtain deferred action. This has now been expanded. Now to qualify for deferred action under this program an individual must have entered the U.S. before they turned 16 and before January 1, 2010. Deferred action (deferrals of deportation) will now be granted for three years instead of two. This will continue to include work authorization.

and,

Extending Deferred Action to parents of U.S. Citizens and Lawful Permanent Residents: Individuals who meet all of the following criteria will be eligible for deferred action and work authorization:
1. Individuals who are not a removal priority (see above),
2. Who have been in the U.S. for at least 5 years,
3. Who have children who are currently U.S. citizens or lawful permanent residents, and
4. Who do not have other factors that make deferred action inappropriate.
These individuals must also pass a background check. There will be a fee to apply for work authorization.

This is not a complete list of all provisions, but a summary of some. For a complete list, visit dhs.gov.

Man wrongfully convicted of murder freed after 39 years in prison

Ricky Jackson, who was convicted of murder in 1975, will be leaving the Cuyahoga County Justice Center as a free man today, the Cleveland Plain Dealer reports. Jackson spent 39 years in jail for the crime, which involved the robbery and murder of a money order salesman. His conviction was largely based on the eyewitness testimony of Eddie Vernon, who was 12 years old at the time the crime took place. Vernon, now 53, recently recanted his testimony, stating that he had lied about everything he had told police at the time.

Vernon had told police that Jackson and two other men, Wiley and Ronnie Bridgeman, were responsible for the crime. In coming forward, Vernon claims that all of the descriptive information he gave to police was fed to him, and that detectives had told him that if he disclosed what he had done, they would imprison his parents for perjury, according to the Plain Dealer. Vernon testified at a hearing on Monday that he was on a bus with other children when he heard the gun shots. The bus was near the location of the shooting, but not in a place where Vernon could see anything. Others on the bus corroborated this.

Vernon had gone to police on a friend's word with the intent to help authorities and things spun out of control, the Plain Dealer reports. Jackson and the Bridgemans were convicted for the murder based on Vernon's testimony. No other evidence tied them to the crime. After Vernon recanted his testimony on Monday, the Cuyahoga County Prosecutor conceded that they no longer had a case against Jackson and dismissed the case. 

Jackson was represented by Mark Godsey and Brian Howe of the Ohio Innocence Project. The case was formally dismissed by Judge McGonagle of the Cuyahoga Common Pleas Court this morning. The case against Wiley Bridgeman was dismissed two hours later, NewsNet5 of Cleveland reports.

Ohio's ignition-breathalyzer bill fails

An Ohio bill that would have required first time DUI offenders to have an ignition interlock device installed in their vehicles has failed in committee in the Ohio legislature, the Cincinnati Enquirer reports. H.B. 469, which we discussed in September, would have required the installation of a breathalyzer device on an offender's ignition. A driver would have to blow into the the device to start the car, which would prevent the engine from starting if too much alcohol was detected on his or her breath.

According to the Enquirer the bill faced opposition from the Ohio Judicial Conference and the Ohio State Bar Association. Chief worries about the bill included issues of restricting judicial sentencing discretion and a concern that the mandatory penalty would cause more cases to go to trial, creating a burden on Ohio courts. Ohio DUI laws currently allow a judge to order an ignition interlock device for a first-time offender, but do not require it. The devices do become mandatory if an offender is convicted a second time in six years. H.B. 469, or "Annie's Law," so-named for an attorney who was killed by a drunk driver in 2013, would have removed a judge's discretion in sentencing first-time offenders, requiring them to impose the ignition interlock penalty for any case in which they granted driving privileges.

According to the Enquirer, although the bill was expected to come up for a vote in September, opposition by the Judicial Conference caused it to be pulled from the agenda of the House Judiciary Committee. Rep. Gary Scherer, R-Circleville, one of the bill's co-sponsors has now confirmed that the bill is dead, stating that despite "major concessions," the Ohio Judicial Conference still objects to the bill.

Ohio bill shields identities of execution drug manufacturers, others involved with executions

The Columbus Dispatch reports that a bill was introduced in the Ohio House last week to shield the identities of anyone who makes or sells Ohio's execution drugs, as well as anyone who participates in executions performed by lethal injection. HB 663 also offers protection to doctors who provide expert testimony about the death penalty, prohibiting the medical licensing authority from revoking medical licenses of doctors who offer this testimony. It also voids contracts that prohibit the sale of lethal injection drugs to the state, according to the Cleveland Plain Dealer.

The General Assembly found that these measures were necessary to protect these parties to the execution process from "harassment and potential physical harm," and that the department of rehabilitation and correction could not carry out death by lethal injection without providing these protections. According to the Plain Dealer, Ohio ran out of its usual lethal injection drug, pentobarbital, last year and has had trouble securing more since European manufacturers have started refusing to sell it to the U.S. for use in executions. Since then, Ohio has been using a controversial drug cocktail of midazolam and hydromorphone, which has potentially caused significant problems with executions in both Ohio and Arizona, and is currently being challenged in federal court. We discussed some issues related to this in August.

As an alternative to this drug combination Ohio may be able to obtain pentobarbital from smaller compounding pharmacies that could make it to the state's specifications. The bill is designed to protect these pharmacies, along with other parties to the execution process, from public reprisals.

According to the Dispatch, critics of the bill include "the Ohio Public Defender, the American Civil Liberties Union of Ohio, the Ohio Newspaper Association (and) Statehouse Democrats..." Opponents cite constitutional concerns with several aspects of the bill, particularly the language that prohibits the disclosure of execution drug information to courts, which, as First Amendment attorney John Greiner claims, may abrogate the powers afforded to courts under the Ohio Constitution. The Plain Dealer also notes that the Ohio Legislative Services Commission raises the issue of whether the bill's ban on contracts prohibiting the sale of the execution drugs violates the Contract Clauses of both the U.S. and Ohio Constitutions.

The bill is still in the Ohio house, where it is expected to be amended in committee proceedings today. For more information about this, see the full text of the bill and the Ohio Legislative Service Commission's analysis.

Opposing viewpoints on Ohio judicial selection: Should the system change?

In light of the recent elections in Ohio where only 70 out of 225 judicial races were contested, debate has resumed on a topic that frequently comes up post-election: How should Ohio select its judges? Cleveland.com has offered opposing viewpoints on this issue in the form of editorials from the community.

David Owsiany, President of the Ohio Dental Association argues that Ohio should continue its current scheme of electing judges, wherein judges are selected by voters in partisan primaries and then elected in nonpartisan general elections. Owsiany points to the will of the people of Ohio, citing times throughout the years when the state has considered changing the system of selecting judges to no avail. Owsiany criticizes a merit-selection form of selecting judges, claiming that politics still influences who is selected, and that decisions about judgeships are often made without public scrutiny. He concludes that because judges are frequently deciding significant issues related to Ohio law, that a large majority of Ohioans favor continuing to elect their judges under the current scheme.

Nancy Brown, President of the League of Women Voters of Ohio, advocates for a change in the process of selecting judges. Brown suggests an appointment-retention election system, wherein candidates would be appointed and then run in retention elections after a year or two in office so voters could decided whether or not they could remain in this role. Under this plan a nonpartisan commission would vet judicial candidates before appointment by the governor in a public process designed to determine whether the candidates are qualified for office. Before retention elections, a public body would conduct judicial performance reviews to inform the electorate about how the judge has performed his duties since appointment. Brown argues that this system would help give the public more of a voice in the process of electing judges because so many judicial races are currently unopposed and voters have no choice as to whether those judges will be reelected.

Reading the tea leaves: The interesting practice of predicting Supreme Court opinions

Fivethirtyeight.com has recently taken a look at the various methods of predicting Supreme Court opinions. Because there are no polls to consult and Supreme Court opinions are complex, making a prediction about how the Court will rule is much more complicated than simply calling an election. There are currently several different models for making these predictions, including complex computer algorithms, high-level statistical analysis, a crowd-sourced prediction machine called FantasySCOTUS and plain-old human predictions by people with varying degrees of legal knowledge.

Most of the methods the article references have had a success rate that hovers somewhere between 70-80%. Statistical analysis using a "classification tree" method, which pulled data from ten years of prior cases had about a 75% success rate for the 2002-2003 SCOTUS term, while a poll of expert law professors was about 59% accurate for that same time period. These predictions were compiled and analyzed in a 2004 study, undertaken by academics in the legal and political science fields.

Josh Blackman, a law professor at South Texas College of Law has participated in the creation of two Supreme Court predictor models. Blackman, along with two colleagues, created a computer model called {Marshall}+ that makes predictions based on over 60 years of precedent data. This model has been about 70% accurate. Blackman is also the force behind FantasySCOTUS.com, which is a website designed in the vein of fantasy sports. Players choose which justices will decide which way in certain cases and earn points for their accuracy, providing incentive for them to get it right (especially this year, when Thomson Reuters has put up a $10,000 prize). This model has also had about a 70% accuracy rate among serious players.

Interestingly, one of the more successful predictors is Jacob Berlove, a Cincinnati native currently residing in Queens, NY, who has no formal legal training. Berlove became interested in the SCOTUS while reading the Cincinnati Enquirer as a child. He has studied past Supreme Court decisions and closely follows oral arguments, analyzing both the style and content of the justices questions and comments to make his predictions, and has had about an 80% success rate in predicting the outcomes of cases. Berlove has also won the FantasySCOTUS three years in a row.

Fivethirtyeight.com offers a breakdown of predictions from various sources for both the October and November sessions of the Court. Although many of the sources have similar levels of demonstrated accuracy, there is not necessarily much agreement about which cases will turn which way, at least for the October session.

Casino employee who took a can of Red Bull without paying should not have had gaming license revoked, rules Eighth District

The Eighth District Court of Appeals found recently that an employee of Cleveland's Horseshoe Casino who took a can of Red Bull without paying for it while on a break from work should not have had his gaming license revoked as a result. The case involves Anthony Zingale, who was a dealer at a high-limit table at the casino. While on a break he visited the employee dining room where he used his employee card to purchase a can of Red Bull and then voided the sale. When confronted by his supervisors Zingale stated that he must have inadvertently voided the sale and offered to pay for the beverage. The supervisors refused to accept payment and assured Zingale that this would likely not be a problem. Zingale was subsequently fired from the Horseshoe Casino.

The Casino Control Commission then sent Zingale a notice that they intended to revoke his gaming license because he had taken the Red Bull and had not notified the Commission that he had been fired. The notice gave him an opportunity for a hearing. After the hearing, the examiner recommended that the Commission take administrative action against Zingale, and the Commission decided to revoke his license. Zingale appealed to the Court of Common Pleas, which affirmed the decision without written opinion. Zingale then appealed to the 8th District.

The 8th District reversed the decision of the lower court, finding that the examiner had incorrectly shifted the burden of proof to Zingale and improperly applied a statute to him that was meant for new applicants for gaming licenses. The examiner had found that Zingale's actions were "a failure of good behavior," and that he did not show by clear and convincing evidence that he should be permitted to keep his license. In order to be able to revoke his license, the Commission modified the finding (which they were allowed to do under the law) to indicate that Zingale had engaged in unsuitable conduct, stating that “Zingale failed to establish by clear and convincing evidence that he remains suitable for licensure as a casino gaming employee, as required by R.C. 3772.10.”

The 8th District found that shifting the burden of proof to Zingale done by both the examiner in the original case and the Commission in the modified opinion was incorrect and that it was up to the Commission to prove that he was no longer suitable to hold his existing gaming license by a preponderance of the evidence. Zingale only would have been responsible for proving that he was suitable for the license if he was a new applicant, not simply for keeping his license. The Court found that this was not harmless error, as the Commission contended, because Zingale lost both his job and his ability to find casino gaming employment anywhere else in Ohio.

In the original opinion, the examiner had recommended that the Commission take "administrative action" against Zingale for his actions. The Commission modified this and ordered that Zingale's license be revoked. While O.R.C. 119.09 allows the Commission to modify the decision, the language of the statute also requires that they provide reasons for the modification. The Court found that no reasons for the modification were given and so it was improper.

The Court reversed the decision of the trial court and ordered the case to be set for a new administrative hearing.

For more information about this case see this article from Court News Ohio and this from the Cleveland Plain Dealer.

Planned Parenthood files suit against Ohio Department of Health

The Southwest Ohio Region of Planned Parenthood has filed suit in federal court this week, seeking to preserve its ability to continue to perform abortions in its Mt. Auburn facility, the Cincinnati Enquirer reports. At issue is the center's lack of transfer agreement with a local hospital where it could send patients if dangerous situations arose, as required by Ohio law. The facility had such an agreement with The University of Cincinnati Medical Center, but legislation passed by Republicans in the Ohio legislature in 2013 made transfer agreements with public hospitals illegal, so UC Health withdrew their collaboration. Since most private local hospitals are religiously affiliated, Planned Parenthood has not been able to secure another transfer agreement, they state, leading the ODH to cite them for failure to comply with the law, and threaten to revoke their license.

The law does permit the Health Department to grant exceptions to this transfer agreement requirement if the provider obtains formal agreements with other doctors. Planned Parenthood asserts that it has done this and requested a variance, but the ODH has yet to respond to the request. A similar situation caused the Women's Med Center in Sharonville to close in September, after Hamilton County Common Pleas Court Judge Jerome Metz ruled that the court lacked jurisdiction to overrule an order of the health department that revoked the center's license for failure to secure a transfer agreement. Women's Med had also requested an exception from the ODH, but the agency denied it.

Planned Parenthood is suing the Ohio Department of Health and UC Health, asking the court "to rule the law unconstitutional, reinstate the clinic's agreement with UC Health and order the health department not to revoke its license," according to the Enquirer. Planned Parenthood asserts that the ODH is violating the due process and equal protection rights of women by implementing such restrictive measures on access to abortion.

If Planned Parenthood's Cincinnati facility were to lose its license Cincinnati would be the largest metropolitan area in the country without an abortion clinic, the Enquirer reports, and women would have to travel outside the area to obtain abortion services. Dayton's Women's Med Center also lacks a transfer agreement and has been operating under a variance that ODH granted in 2008, but the department has not responded to requests to renew this in 2012, 2013 or 2014, Planned Parenthood alleges in their complaint. If this facility were to close as well, the nearest facilities would be as far away as Columbus, Indianapolis and Louisville. According to the complaint, since the majority of Planned Parenthood's patients are low-income, "the increased costs, travel, and delays will make it impossible for a significant number of women to obtain an abortion."

The 1992 U.S. Supreme Court case Planned Parenthood v. Casey held that states may not place an undue burden on a women's right to obtain an abortion. Whether effectively forcing women to travel over 100 miles to obtain an abortion fails this test is something the court is likely to consider in this case.

The case has been assigned to U.S. District Court Judge Timothy Black. While the defendants have not yet filed a written response, at a scheduling conference on November 12 the parties reached a verbal agreement that ODH will not seek to revoke Planned Parenthood's license until the court rules on the preliminary injunction filed by the plaintiff. Planned Parenthood Southwest Ohio Region v. Hodges et al, 1:14-cv-00867.

"Attempted Felony Murder" not a crime under Ohio law

The Ohio Supreme Court ruled last week that attempted felony murder is not a crime under Ohio law, Court News Ohio reports. The case at issue was State v. Nolan, a 2012 case from Portage County, in which the defendant, Bobby Nolan, was found guilty of attempted felony murder, felonious assault, and possessing a firearm while under a disability. The 11th District Court of Appeals found that Nolan could not be found guilty of attempted felony murder, citing it as a "logical impossibility." The state appealed this decision to the Ohio Supreme Court, which affirmed the court of appeals in a unanimous decision, penned by Justice Pfeifer.

The Court evaluated the language of Ohio's "attempt" statute (R.C. 2923.02) and the felony murder statute (R.C. 2903.02(B)) and concluded that Ohio law does not provide for the crime of attempted felony murder. The Court focused on the fact that the "attempt" statute requires a person to act purposely or knowingly to commit an attempt offense, but that the felony murder statute essentially imposes strict liability on the perpetrator of a felony that results in a death. "Felony murder" involves a death that is caused by the commission of another violent felony, but does not have the same required mental state as traditional murder charges. Justice Pfeifer wrote of the felony murder statute, "Though intent to commit the predicate felony is required, intent to kill is not."

In reaching this decision, the Court distinguished the case of State v. Williams, which the state relied on to support its position in defense of "attempted felony murder" as a viable crime. The Court stated that the majority opinion in that case did not use the terms attempted felony murder or consider its viability as a crime, and that the only mention of attempted felony murder came in the dissent, where it was also not analyzed.

The Court concluded the case with a question and swiftly provided the answer, "Can a person be guilty of attempting to cause an unintended death? We conclude that the court of appeals correctly determined that it is impossible to purposely or knowingly cause an unintended death. Accordingly, we hold that attempted felony murder is not a cognizable crime in Ohio."

For more information about this case see the docket information, located here.

Many Hamilton County judgeships still to be decided after election

While the 2014 election was over last Tuesday night, there are still several judicial positions in Hamilton County that remain up in the air, the Cincinnati Enquirer reports. This is because as sitting judges are elected to different judgeships, their seats open up and must be filled with judicial appointments by Ohio Governor John Kasich. There is potentially at least one seat available on several courts in Hamilton County, including the First District Court of Appeals, Common Pleas Court, Municipal Court and Juvenile Court. The reasons for this are as follows:

Appeals Court: Judge Patrick Dinkelacker, who is currently serving as a judge on the First District Court of Appeals, ran for Hamilton County Common Pleas judge and won, leaving his appellate seat available.

Common Pleas Court: Judge Ralph Winkler, who is currently a Hamilton County Common Pleas judge, won the election to serve as Hamilton County's Probate Court judge, leaving his Common Pleas seat vacant.

Municipal Court: Judge Russell Mock, current Hamilton County Municipal Court judge, was elected to the Court of Appeals, leaving his Muni Court seat open. 

Juvenile Court: Judge Tracie Hunter, of Hamilton County's Juvenile Court, was convicted on October 14 of one count of having unlawful interest in a public contract, which is a felony. Hunter is set to be sentenced on December 2. The Ohio Supreme Court also suspended her license to practice law in Ohio. Because of the unusual nature of this vacancy, it is unclear whether Governor Kasich will fill her seat or whether other arrangements will be made, including a visiting judge appointment or special election. 

The Enquirer provides a list of likely candidates to fill each of these seats, which may then result in further judicial vacancies, leading to further gubernatorial appointments. The article also provides a profile of newly elected Common Pleas Judge, Pat Foley, who unseated Republican incumbent, Carl Stich, Jr. in last Tuesday's election.

6th Circuit upholds same-sex marriage bans in four states

The Court of Appeals for the Sixth Circuit issued a decision yesterday upholding same-sex marriage bans in four states: Ohio, Kentucky, Michigan and Tennessee. This decision came as a surprise to many, as the Supreme Court refused to hear appeals of other circuit court decisions striking down similar bans on October 6, tacitly allowing same-sex marriage to become the law in many states. Since this refusal by the Supreme Court the total number of states allowing same-sex marriages has climbed to 32.

The decision, penned by George W. Bush appointee Judge Jeffrey Sutton, addresses multiple constitutional issues, including the issue of the 1972 Baker precedent, which we discussed at length in August, and ultimately concludes that the decision should be left to the people. Sutton wrote, "When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way."

A few key issues in the decision:

Sutton found the Court's one line decision in Baker v. Nelson (that there was "no substantial federal question" involved in a challenge to Minnesota's laws limiting marriage to members of the opposite sex) was binding on the 6th Circuit, and was not persuaded that "doctrinal developments" from later cases involving issues of gay rights overruled that precedent.

Sutton stressed that the Supreme Court's refusal to hear appeals from cases that invalidated same-sex marriage bans was not binding on lower courts, and that because the arguments posited in these cases were all different, we do not know why the Supreme Court refused to hear the cases or under what theory same-sex marriage may be found valid. Sutton wrote, "The Court’s certiorari denials tell us nothing about the democracy-versus-litigation path to same-sex marriage, and they tell us nothing about the validity of any of these theories."

The opinion focuses largely on tradition and the historical definition of marriage and finds that the states have put forth rational reasons for limiting marriage to opposite sex couples, particularly couched in procreation. Sutton states that "By creating a status (marriage) and by subsidizing it (e.g., with tax-filing privileges and deductions), the States created an incentive for two people who procreate together to stay together for purposes of rearing offspring." He argues that whether these justifications for upholding traditional marriage make up for the costs to same-sex couples should be decided by legislators, not judges.

Sutton also found that same-sex marriage was not a fundamental right and thus did not require a strict scrutiny analysis. He distinguished Loving v. Virginia, which found that marriage was a fundamental right, by stressing that the de facto definition of marriage at issue in Loving was a union between members of the opposite sex. Sutton asserts that Loving did not change the definition of marriage and points again to the 1972 Baker case as evidence of this.

Sutton found that states did not need to recognize the valid same-sex marriages performed in other states as there is a rational basis for a state to make its own definition of marriage.

Judge Sutton was joined by Judge Deborah Cook in his opinion. Judge Martha Daughtery wrote a vigorous dissent, in which she stated:

"More than 20 years ago, when I took my oath of office to serve as a judge on the United States Court of Appeals for the Sixth Circuit, I solemnly swore to “administer justice without respect to persons,” to “do equal right to the poor and to the rich,” and to “faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States.” See 28 U.S.C. § 453. If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams."

This decision is the first out of a federal circuit that upholds states' same-sex marriage bans and will almost certainly send the issue directly to the Supreme Court. Although thus far the Court has refused to hear the cases, the split that now exists among circuits may force the issue and prompt the Court to take action. SCOTUS Blog presents a full discussion of the possible avenues and steps involved for the Court to take up the case, here.

Supreme Court tackles fish case

The Supreme Court spent time yesterday immersed in arguments about an unusual topic: fish. Specifically, the case before the Court involved provisions of the Sarbanes-Oxley Act as applied to a fisherman who had caught fish smaller than was permitted by federal law and then disposed of some of them to avoid being charged. The Act was passed in response to corporate scandals involving the destruction of documents to avoid prosecution. The significant provision in this case, as reported by SCOTUS Blog is the provision making it a crime to "'destroy, mutilate, conceal, or cover up any record, document, or tangible object' with the intent to influence or obstruct a federal investigation under 'any matter within the jurisdiction' of any federal agency." The question at issue? Whether a fish qualifies as a "tangible object" under this law.

The case began with the actions of Florida fisherman, John Yates, who was operating a commercial fishing vessel off the Florida coast in 2007 when he was boarded by a state conservation officer who was conducting an inspection. The officer found a batch of red grouper that were too small to be caught under federal laws and told the captain and crew to load them into a crate and leave them there until they reached port, when they would be taken by federal agents. When the vessel docked and the fish were evaluated, however, there were only 69 smaller fish out of the 72 the state conservation officer initially found. A crew member told federal officials that the captain had instructed them to throw the smaller fish overboard.

The captain was convicted of destroying the fish under the Sarbanes-Oxley Act's anti-shredding provision and sentenced to 30 days in prison. Yates could have been sentenced to up to 20 years in prison under the Act. According to the New York Times, the justices seemed skeptical as to whether the law applied to Mr. Yates and critical of the decision to prosecute him at all, citing concerns with governmental overreach and issues of prosecutorial discretion. Justice Ginsburg inquired whether the Department of Justice gives guidance on what charges federal prosecutors should bring in this sort of case, given that Yates could have been charged with violating a different statute which had a maximum penalty of five years, and Justice Scalia questioned, “What kind of a mad prosecutor would try to send this guy up for 20 years?”

SCOTUS Blog offers a detailed plain English description of yesterday's arguments, here. For additional information, see this article from the Washington Post, and this one from the ABA Journal.

Finding of probable cause required before issuing arrest warrant, rules Ohio Supreme Court

The Ohio Supreme Court ruled today that a "neutral and detached magistrate" or other person eligible under Ohio's criminal rules must find probable cause before issuing an arrest warrant under the Ohio Constitution and the 4th Amendment to the U.S. Constitution. The case revolves around arrest warrants issued for defendant Brandon Hoffman. The Toledo Police Department obtained arrest warrants for Hoffman from the court clerk's office, which did not properly make a finding of probable cause before issuing the warrants. The arrest warrants were for three misdemeanor offenses: theft, criminal damaging and "house-stripping."

Toledo police were subsequently called to a residence where they found the body of Scott Holzhauer. Neighbors advised police that Hoffman had recently visited Holzhauer. When police ran a check on Hoffman they learned about the unrelated arrest warrants and decided to execute them. Upon arrival at Hoffman's residence they were allowed inside, where they found a gun and cell phone belonging to Holzhauer. Based on this information the officers obtained a search warrant which led to the collection of additional evidence. Holzhauer was charged with aggravated murder and aggravated robbery. 

At trial he moved to suppress all evidence obtained as a result of the arrest warrants on the grounds that they were obtained without a finding of probable cause. The trial court agreed that the arrest warrants were improper, but found that it was bound by a prior decision of the Sixth District Court of Appeals, State v. Overton, which upheld the validity of search warrants that were virtually identical to those at issue here. Hoffman pleaded no contest and was convicted of both charges. On appeal, the Sixth District agreed that the search warrants were improper based on the lack of a probable cause finding and overruled aspects of Overton that conflicted with that ruling. The Sixth District found that because the police acted in good faith on the validity of the arrest warrants, however, that any evidence found as a result of their issuance did not need to be excluded.

The Ohio Supreme Court affirmed the decision of the Sixth District, holding that "a neutral and detached magistrate or other person authorized under Crim.R. 4(A)(1) must make a
probable-cause determination before an arrest warrant can be issued" and finding that this did not happen in Hoffman's case. The Court went on to hold that despite the improper search warrants, the evidence collected should not have been excluded, stating that, "Ultimately, the arrest warrants must be viewed as improperly issued because although deputy clerks had a checklist to follow, a probable-cause determination was never made, and the complaint was rubber-stamped with no questions asked. The arresting officers themselves, however, had no reason to question or doubt the validity of Hoffman’s warrants, and they acted in good faith in relying on them. Suppression of evidence here will not serve the purposes of the exclusionary rule."

Justice Lanzinger wrote the majority opinion and was joined by Justices O'Connor, Kennedy, French and O'Neill. Justice O'Donnell wrote a concurring opinion, stressing that the Toledo Municipal Court must amend its process for issuing arrest warrant in light of today's ruling. Justice Pfeifer dissented, arguing that the magistrate signing off on the warrants served as a mere rubber stamp for police and that the Toledo Police Department did not have a good faith belief that the warrants were valid. As such, he concluded that any evidence arising from them should be excluded.

For more information about the case see this article from Court News Ohio. 

Don't forget to vote today!

Today is Election Day and polls are open!  Make sure to get out and vote, if you haven't already.

Hamilton County Information:
View a complete Hamilton County ballot.
Find your polling place. (Also provides a link to address-specific sample ballot)

Butler County Information:
View a Butler County sample ballot. (Must check if you are registered, then you can view a sample ballot if you are.)
Find your polling place.

Clermont County Information:
View a list of sample ballots for Clermont County.
Find your polling place.

Warren County Information:
View a Warren County candidate list and issue list.
Find your polling place.

Lawyer ethics rules must adapt to encompass new technologies

As technology develops lawyers face challenges dealing with new methods of doing business in light of traditional ethics rules, according to the ABA Journal. In 2009 the ABA Commission on Ethics 20/20 convened to review the existing rules in comparison with new and emerging technologies and make recommendations to update the ABA Model Rules of Professional Conduct. This was completed in 2013, but, as the ABA Journal describes, questions remain about how the updated rules apply in day to day situations with technology that is often rapidly changing.

The article stresses that the standard of reasonableness still prevails in the Model Rules, citing Model Rule 1.1, which provides "Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." While this standard remains the same, however, there are still significant considerations for attorneys when dealing with new technology, prompting the addition of language about understanding the risks and benefits of technology in the comments to the rule. An example of these technology concerns raised by the article involves issues with maintaining confidentiality of client files and how that has changed dramatically with the advent of digital documents and cybersecurity concerns. This is governed by an updated Model Rule 1.6(7)(c), which provides, "A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client."

The ABA Journal also discusses how new technology impacts issues related to attorney marketing and solicitation of clients. The article references "lead generation services," such as those utilizing web services to attract clients, and the ethical impact they may have, citing concerns about issues such as the sharing of legal fees with non-lawyers, which is prohibited by Model Rules 7.2 and 5.4. A 2013 Lawyerist article suggests that these types of services also have the potential to raise other ethical issues and urges attorneys using them to be cautious about the services they select, making sure that the ads and marketing used comply with ethical rules and don't set unrealistic expectations.

Congratulations to Ohio's successful bar applicants!

The Supreme Court of Ohio released the results for the July 2014 Ohio bar exam on Friday. Court News Ohio reports that 902 of 1,173 applicants passed the exam. This is a 76.9% passage rate. The passage rate for first-time applicants was higher at 81%. The overall passage rate for the Ohio bar was lower than it has been over the past five years, when it has hovered between 81-83% for all test-takers. Applicants who have passed the bar exam and completed all other requirements for admission will take the oath of office on November 17 in Columbus. Click here for a complete list of applicants who passed the July 2014 exam.