The Wall Street Journal's Law Blog yesterday morning carried a posting about the International Trade Commission's "proposing new rules that would, ideally, make patent-infringement disputes more affordable by placing limitations on electronic discovery."
The proposed rules, which were published in today's Federal Register, closely tracks the Federal Rules of Civil Procedure, according to the post. "As it is," it says, "if, say, Apple makes a request of Samsung for information that it believes is relevant to an infringement claim, Samsung has to dig through all its emails and documents, no matter how much it costs or how long it takes, for that information. Under the proposed rules, Samsung wouldn’t have to provide discovery from sources that it identified as 'not reasonably accessible because of undue burden or cost.' Apple, however, could then file a motion to compel the production of the electronic documents in question, and Samsung would have to show that the information isn't reasonably accessible. An administrative judge would ultimately decide the issue."
The Federal Register posts that comments on the proposed rules have to be received before 5:15 p.m. on December 4, 2012.
Friday, October 05, 2012
Thursday, October 04, 2012
Ohio Supreme Court juvenile cases
The Ohio Supreme Court has decided two juvenile court cases noteworthy of those in that practice.
Yesterday, it held that while Ohio Revised Code Sec. 2151.352 entitles juvenile offenders to representation by legal counsel "at all stages of the proceedings" in delinquency cases, that refers only to court proceedings that take place after the filing of a complaint in juvenile court or upon an offender's initial appearance in court, but does not confer such a right during police interrogations conducted prior to the filing of a complaint or the offender's initial appearance in juvenile court.
That case, In re M.W., Slip Opinion No. 2012-Ohio-4538, concerned "a juvenile offender," the Court's news service wrote, "who was stopped by a Cleveland police officer while driving without a valid license and initially identifying himself by another name. When the officer discovered the deception and asked why he had used a false identity, the youth stated he thought he had been stopped because of "something to do with" another juvenile the officer knew had been arrested the previous day for aggravated robbery. When asked what he knew about the robbery, he confessed that he had served as a lookout, was arrested and transported to a district police station, where he was advised of his constitutional rights, signed a written waiver of those rights, a statement admitting his role in the robbery. Cleveland Police then filed a complaint in the Cuyahoga County Juvenile Court charging the him with aggravated robbery and a firearm specification."
Supreme Court Justice Terrence O’Donnell stressed, in this case, that "(T)he only claimed right to counsel in this appeal is a statutory one premised on R.C. 2151.352, and our narrow holding does not address any constitutional right to counsel or the issue of waiver. Although M.W. had a Fifth Amendment right to counsel pursuant to Miranda, he did not exercise that right ... His Sixth Amendment right to counsel, which guarantees the right to counsel at all ‘critical stages of the criminal proceedings’ ... had not yet attached because a complaint alleging delinquency had not yet been filed."
This morning the Court held juvenile offenders may waive a required "amenability" hearing to determine whether he should be bound over for trial as an adult, but such a waiver is valid only if (1) the juvenile, through counsel, expressly states on the record a waiver of the amenability hearing and (2) the juvenile court engages in a colloquy (dialogue) on the record with the juvenile to determine that the waiver was made knowingly, voluntarily, and intelligently. (See State v. D.W., Slip Opinion No. 2012-Ohio-4544 )
This case involved a juvenile, 17 years old at the time of offense, charged with felony burglary and other crimes in the Cuyahoga County Juvenile Court. After conducting a hearing at which the court found probable cause, the judge engaged in an off-the-record sidebar discussion with the assistant prosecutor and defense counsel with regard to binding the youth over for trial as an adult at the conclusion of which the judge stated on the record that because the juvenile court had conducted an amenability hearing in a prior case involving different offenses committed by the same youth, and had bound him over for trial as an adult in that case based on a finding that he was not amenable to rehabilitation in the juvenile system, the court would grant bindover in the current case without conducting a new amenability hearing. He was subsequently bound over to the common pleas court and indicted by a Cuyahoga County Grand Jury on one count each of burglary, theft, vandalism, and criminal damaging and two counts of bribery. A jury acquitted him of bribery, but found him guilty of the other charges. He was sentenced to six years in prison and mandatory post-release control.
Chief Justice Maureen O'Connor in this decision, the Court news service relayed,"pointed out that the amenability hearing required under R.C. 2152.12 "affects whether the juvenile faces a delinquency adjudication, or adult criminal sanctions and the label 'felon.' ... Given the nature and consequences of the amenability hearing, juvenile court judges are entrusted with significant authority when conducting the hearings. ... The safeguard of a hearing is contained in the Revised Code and Rules of Juvenile Procedure, and it is grounded in due process and other constitutional protections. As the United States Supreme Court makes clear, 'there is no place in our system of law for reaching a result [the transfer of a juvenile to adult court] of such tremendous consequences, without ceremony − without hearing, without effective assistance of counsel, without a statement of reasons.'"
"In order to assure that those conditions are met, Chief Justice O'Connor wrote: "(W)e hold that in situations in which a juvenile is subject to discretionary transfer and the juvenile wishes to waive the right to an amenability hearing, the juvenile court must engage in a two-step process to determine the validity of the waiver. First, before being transferred, the juvenile may waive the right to an amenability hearing only if the waiver is expressly stated on the record and through counsel. ... Second, the juvenile court must determine that the waiver is offered knowingly, voluntarily, and intelligently. Proper determination must include a colloquy with the juvenile and must occur on the record. The colloquy allows the juvenile court to fulfill its parens patriae duty (duty to protect a vulnerable party as a parent would) by ensuring that the juvenile fully understands and intentionally and intelligently relinquishes the right to an amenability hearing. And it allows the judge ‘to engage in a meaningful dialogue with the juvenile,’ ... to guarantee that the juvenile’s due process rights are protected."
Yesterday, it held that while Ohio Revised Code Sec. 2151.352 entitles juvenile offenders to representation by legal counsel "at all stages of the proceedings" in delinquency cases, that refers only to court proceedings that take place after the filing of a complaint in juvenile court or upon an offender's initial appearance in court, but does not confer such a right during police interrogations conducted prior to the filing of a complaint or the offender's initial appearance in juvenile court.
That case, In re M.W., Slip Opinion No. 2012-Ohio-4538, concerned "a juvenile offender," the Court's news service wrote, "who was stopped by a Cleveland police officer while driving without a valid license and initially identifying himself by another name. When the officer discovered the deception and asked why he had used a false identity, the youth stated he thought he had been stopped because of "something to do with" another juvenile the officer knew had been arrested the previous day for aggravated robbery. When asked what he knew about the robbery, he confessed that he had served as a lookout, was arrested and transported to a district police station, where he was advised of his constitutional rights, signed a written waiver of those rights, a statement admitting his role in the robbery. Cleveland Police then filed a complaint in the Cuyahoga County Juvenile Court charging the him with aggravated robbery and a firearm specification."
Supreme Court Justice Terrence O’Donnell stressed, in this case, that "(T)he only claimed right to counsel in this appeal is a statutory one premised on R.C. 2151.352, and our narrow holding does not address any constitutional right to counsel or the issue of waiver. Although M.W. had a Fifth Amendment right to counsel pursuant to Miranda, he did not exercise that right ... His Sixth Amendment right to counsel, which guarantees the right to counsel at all ‘critical stages of the criminal proceedings’ ... had not yet attached because a complaint alleging delinquency had not yet been filed."
This morning the Court held juvenile offenders may waive a required "amenability" hearing to determine whether he should be bound over for trial as an adult, but such a waiver is valid only if (1) the juvenile, through counsel, expressly states on the record a waiver of the amenability hearing and (2) the juvenile court engages in a colloquy (dialogue) on the record with the juvenile to determine that the waiver was made knowingly, voluntarily, and intelligently. (See State v. D.W., Slip Opinion No. 2012-Ohio-4544 )
This case involved a juvenile, 17 years old at the time of offense, charged with felony burglary and other crimes in the Cuyahoga County Juvenile Court. After conducting a hearing at which the court found probable cause, the judge engaged in an off-the-record sidebar discussion with the assistant prosecutor and defense counsel with regard to binding the youth over for trial as an adult at the conclusion of which the judge stated on the record that because the juvenile court had conducted an amenability hearing in a prior case involving different offenses committed by the same youth, and had bound him over for trial as an adult in that case based on a finding that he was not amenable to rehabilitation in the juvenile system, the court would grant bindover in the current case without conducting a new amenability hearing. He was subsequently bound over to the common pleas court and indicted by a Cuyahoga County Grand Jury on one count each of burglary, theft, vandalism, and criminal damaging and two counts of bribery. A jury acquitted him of bribery, but found him guilty of the other charges. He was sentenced to six years in prison and mandatory post-release control.
Chief Justice Maureen O'Connor in this decision, the Court news service relayed,"pointed out that the amenability hearing required under R.C. 2152.12 "affects whether the juvenile faces a delinquency adjudication, or adult criminal sanctions and the label 'felon.' ... Given the nature and consequences of the amenability hearing, juvenile court judges are entrusted with significant authority when conducting the hearings. ... The safeguard of a hearing is contained in the Revised Code and Rules of Juvenile Procedure, and it is grounded in due process and other constitutional protections. As the United States Supreme Court makes clear, 'there is no place in our system of law for reaching a result [the transfer of a juvenile to adult court] of such tremendous consequences, without ceremony − without hearing, without effective assistance of counsel, without a statement of reasons.'"
"In order to assure that those conditions are met, Chief Justice O'Connor wrote: "(W)e hold that in situations in which a juvenile is subject to discretionary transfer and the juvenile wishes to waive the right to an amenability hearing, the juvenile court must engage in a two-step process to determine the validity of the waiver. First, before being transferred, the juvenile may waive the right to an amenability hearing only if the waiver is expressly stated on the record and through counsel. ... Second, the juvenile court must determine that the waiver is offered knowingly, voluntarily, and intelligently. Proper determination must include a colloquy with the juvenile and must occur on the record. The colloquy allows the juvenile court to fulfill its parens patriae duty (duty to protect a vulnerable party as a parent would) by ensuring that the juvenile fully understands and intentionally and intelligently relinquishes the right to an amenability hearing. And it allows the judge ‘to engage in a meaningful dialogue with the juvenile,’ ... to guarantee that the juvenile’s due process rights are protected."
Monday, October 01, 2012
Number of Repeat Offenders Decline, But Judges Still Want Law Fixed
A study released last week by the Washington-based Council of State Governments' Justice Center indicated "significant statewide recidivism reductions achieved in Kansas, Michigan, Mississippi, Ohio, Oregon, Texas, and Vermont for prison releases between 2005 and 2007."
"For each state," the study's briefing says, "it compared three-year post-release recidivism rates for two cohorts: people exiting prison in 2005 and those released in 2007. The data is among the most current available for statewide three-year recidivism rates. Some states saw particularly sharp reductions during this period, such as Kansas, which achieved a 15-percent decline, and Michigan, which saw an 18-percent ... Ohio showed an 11-persent reduction."
The Justice Center cautioned, though, that while its "brief highlights a cross-section of states with robust, current data that reflect improvements, it is not a comprehensive research report, nor is it an evaluation of any state's recidivism efforts, assessing how changes in the recidivism rate in each state correlate to particular changes in policy or practice."
None-the-less, Cincinnati.com this morning noted cases in which the same law that has helped Ohio reduce its inmate population is also being criticized as too restrictive by many judges seeking more leeway in sentencing,
"The issue came to a head of sorts last week in Washington County at the sentencing for a man who pleaded guilty last month to a fourth-degree felony of unlawful sexual conduct with a 14-year-old boy," the article related. "Judge Susan Boyer expressing her dissatisfaction with the law and warning the offender, Nicholas Leach, that he would be sent to prison if he violated any of the conditions she was imposing -- 90 days in jail and 90 days in a secure treatment center -- told the man, 'At this point, the court does not have available to it the option to send you to prison. But let me be clear: If the court had that option, you would be going.'"
Assistant Washington County prosecutor Kevin Rings was also quoted as commenting that it was the first time in his career he'd seen a sex offender escape prison.
"For each state," the study's briefing says, "it compared three-year post-release recidivism rates for two cohorts: people exiting prison in 2005 and those released in 2007. The data is among the most current available for statewide three-year recidivism rates. Some states saw particularly sharp reductions during this period, such as Kansas, which achieved a 15-percent decline, and Michigan, which saw an 18-percent ... Ohio showed an 11-persent reduction."
The Justice Center cautioned, though, that while its "brief highlights a cross-section of states with robust, current data that reflect improvements, it is not a comprehensive research report, nor is it an evaluation of any state's recidivism efforts, assessing how changes in the recidivism rate in each state correlate to particular changes in policy or practice."
None-the-less, Cincinnati.com this morning noted cases in which the same law that has helped Ohio reduce its inmate population is also being criticized as too restrictive by many judges seeking more leeway in sentencing,
"The issue came to a head of sorts last week in Washington County at the sentencing for a man who pleaded guilty last month to a fourth-degree felony of unlawful sexual conduct with a 14-year-old boy," the article related. "Judge Susan Boyer expressing her dissatisfaction with the law and warning the offender, Nicholas Leach, that he would be sent to prison if he violated any of the conditions she was imposing -- 90 days in jail and 90 days in a secure treatment center -- told the man, 'At this point, the court does not have available to it the option to send you to prison. But let me be clear: If the court had that option, you would be going.'"
Assistant Washington County prosecutor Kevin Rings was also quoted as commenting that it was the first time in his career he'd seen a sex offender escape prison.
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