Kentucky’s Top Court Upholds Bar on Ineffective-Assistance-of-Counsel Waivers

Author: Brynn Stylinski, Associate Member, University of Cincinnati Law Review

In a system where nine out of ten criminal cases end in pleas, debate over the ethics of plea bargain content is common. On August 21, the Kentucky Supreme Court effectively ruled that plea bargains in the state may not ethically include waivers of the right to sue for ineffective assistance of counsel (IAC).[1] In Kentucky Bar Ass’n, the court upheld Kentucky Bar Association Ethics Opinion E-435 (E-435), which states that criminal defense attorneys may not advise clients to accept plea bargains that contain IAC waivers, and federal prosecutors may not propose plea bargains that contain IAC waivers.[2] The court’s rationales reflect current legal trends in criminal law, and this decision improves the quality of the criminal justice system in Kentucky. It holds all attorneys to a higher ethical standard, prevents inherent conflicts of interest, prevents prosecutors from limiting the ways in which defendants can challenge their convictions, and allows defendants to enforce their right to effective counsel without also having to show that attorney error led to them to sign an IAC waiver. If the issue is brought before other state courts, they would be wise to follow Kentucky’s example.

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Free Speech in the Age of Terrorism & Mehanna v. United States: SCOTUS Passes Up an Opportunity to Clean Up an Old Mess

Author: Rebecca Dussich, Associate Member, University of Cincinnati Law Review 

In the order following the Supreme Court’s September conference, the Court declined to hear a case that would have clarified §§ 2339A and B of Title 18 of the U.S. Code and prevented unlawful encroachment on free speech rights. Tarek Mehanna, convicted of providing “material support” to a foreign terrorist organization, asked the Court to clarify its interpretation of the statute under which he was prosecuted.[1] The standard used to support this conviction, established in Holder v. Humanitarian Law Project, requires action “in coordination with, or at the direction of” the terrorist organization in question.[2] Because HLP did not adequately explain this standard, the government has been able to convict defendants like Mehanna despite insufficient evidence to support the “coordination” requirement. Now, the Court has passed up an opportunity to correct this error by denying Mehanna’s petition for writ of certiorari, leaving his conviction in place, and effectively supporting an improper and ineffective standard. If the Supreme Court were to give courts and juries a more workable set of guidelines under which to establish “coordination,” they could more fairly decide these cases.

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Follow Up: “The Davis Good Faith Exception to the Exclusionary Rule”

On September 24, 2014, the Supreme Court of Ohio heard oral argument in the case of State of Ohio v. Sudinia Johnson, 2013-1973. At issue was “whether, in the absence of binding appellate precedent, the Davis good faith exception to the exclusionary rule can apply to prevent the suppression of evidence when the officer who committed the Fourth Amendment violation reasonably believed the search was legal.” (from LegallySpeakingOhio)

Blog editor Cameron Downer wrote about Davis for the UC Law Review Blog here. Cameron has since covered the Johnson case for LegallySpeakingOhio, both previewing oral argument and assessing its aftermath. Both articles are worth a read in an important follow up to the Davis case.

Ohio Considers Joining the Fight Against Patent Trolls

Author: Jon Kelly, Associate Member, University of Cincinnati Law Review

Patent trolls have become a serious headache for small businesses, and states are beginning to fight them without the federal government.  The Ohio General Assembly is currently debating House Bill 573 (H.B. 573), which would allow patent holders to sue patent trolls for “bad faith” claims.[1] Although Ohio has a strong interest in preventing patent trolls from hindering small businesses’ operations, it is uncertain whether the federal government’s exclusive jurisdiction over patent law would preempt H.B. 573 and prevent state courts from accepting patent abuse cases under the law. Considering the current state of relevant case law, however, Ohio’s H.B. 573 should survive any preemption challenge because the law does not attempt to validate patents themselves, but instead sanctions the conduct of patent trolls.

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“Costanza Defense” Potentially No Longer Applicable in Class Action Securities Claims

Author: Collin L. Ryan, Associate Member, University of Cincinnati Law Review

George Costanza once imparted to Jerry Seinfeld the infamous advice, “It’s not a lie, if you believe it.”[1] Although this advice is entertaining, the Supreme Court granted certiorari last March to resolve a circuit split regarding the extent to which Mr. Costanza’s advice applies in class action securities litigation.[2] The Supreme Court will review the Sixth Circuit’s decision in Indiana State District Council v. Omnicare, Inc. from May 23, 2013.[3] The Court will likely determine the pleading standard for plaintiff-investors filing suit under § 11 of the Securities Act of 1933 (§ 11 or section 11) against a defendant-corporation. In particular, the Court will determine whether the plaintiff’s plea that the defendant’s misstatement or omission was objectively false satisfies federal pleading requirements, or whether the plaintiff must also plead that the defendant subjectively knew that the misstatement or omission was misrepresentative.[4]

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Don’t Let the Door Hit You on the Way Out: Smith v. Robbins (In re IFS Financial Corporation) [1]

Author: A.J. Webb, Articles Editor, University of Cincinnati Law Review

In November 2011, W. Steve Smith traveled to New Orleans, Louisiana, to attend a bankruptcy hearing for IFS Financial, for which he served as a bankruptcy trustee in a chapter seven liquidation.[2] While the hearing lasted only one day, Smith extended his stay by three additional days. This decision ultimately cost him his job as a trustee on all of his bankruptcy cases.[3] The Bankruptcy Court for the Southern District of Texas removed Smith as a trustee under Bankruptcy Code (Code) § 324, a provision that allows the court to remove a trustee for cause after notice and a hearing.[4] The District Court for the Southern District of Texas recently affirmed this decision.[5] The decision by the district court highlights three important issues with regard to bankruptcy trustees. First, it demonstrates the willingness of courts to remove trustees for relatively minor improprieties. Second, it demonstrates the fundamental principle of a trustee’s job in bankruptcy: to protect estate assets and ensure their distribution to creditors. Finally, it raises the question as to whether trustees have a “right” to their job under the Code or the United States Constitution.

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Alice Kills: Is Alice v. CLS the Destruction of Software and Business Method Patents as We Know Them?

Author: Ashley Clever, Contributing Member, University of Cincinnati Law Review

This is a question many practicing patent attorneys are wondering in the wake of the recent U.S. Supreme Court decision in Alice Corporation PTY. LTD. v. CLS Bank International on June 19, 2014.[1] In Alice v. CLS, the Supreme Court invalidated four patents owned by Alice Corporation relating to a system for mitigating settlement risk by using a third-party intermediary computer system to exchange financial obligations, ensuring the parties in the settlement agreement completed the transaction.[2] The Court held that the patents claimed an abstract idea that was not sufficiently transformed in order to render the subject matter eligible for patent protection.[3]

While the Supreme Court does not typically grant certiorari on many patent law cases, in recent years there have been numerous questions on what inventions are entitled to receive patent protection, particularly regarding what is patentable subject matter under 35 U.S.C. § 101.[4]

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Go Ahead, Scream Obscenities at Your Boss

­Author: Erin Alderson, Notes and Comments Chair, University of Cincinnati  Law Review

Before the Plaza Auto Center[1] decision, one could probably assume that calling your boss a “f—— m—— f——” would fall into the category of egregious conduct. In its Plaza Auto Center decision, however, the National Labor Relations Board (the NRLB) determined that even when an employee screams obscenities at his boss, he does not fall outside of the scope of protection of the National Labor Relations Act.

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The Curious Case of Douglas Prade: How an Appellate Court Reversed a Finding of “Actual Innocence”

Author: Cameron Downer, Associate Member, University of Cincinnati Law 

On the morning of November 26, 1997, Dr. Margo Prade was brutally murdered in the parking lot of her medical office. At some point during the murder, the assailant bit Margo through her blouse and lab coat. Her husband, Akron Police Captain Douglas Prade, was indicted for the murder. At trial, the key piece of physical evidence was the bite mark. However, the limitations of then-existing DNA technology could only conclusively identify Margo’s own DNA on the bite mark. The remaining evidence at trial was inconclusive. At the end of the trial, Prade was convicted and sentenced to life in prison.[1]

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The Burden of Applying Casey’s “Undue Burden” Standard

­Author: Ryan Goellner, Blog Editor, University of Cincinnati Law Review

After expedited consideration of an injunction of Texas’s now (in)famous House Bill 2 (H.B. 2),[1] in late March the Fifth Circuit Court of Appeals upheld the law’s regulation of abortion providers as comporting with the constitutional protections of a woman’s right to have an abortion.[2] In its strongly-worded order reversing the district court’s permanent injunction of the law in Planned Parenthood v. Abbott, the Fifth Circuit meticulously applied two familiar Supreme Court abortion cases, Planned Parenthood v. Casey[3] and Gonzales v. Carhart,[4] concluding that the Texas law was rationally based and did not impose an undue burden on women seeking abortions in Texas. Although appellate review has settled the Texas case for now, the Fifth Circuit’s intense scrutiny of H.B. 2, applying the reasoning of Casey and Gonzales to the trial court’s findings, reveals the new judicial frontier of the abortion battleground: using constitutional case law to evaluate the validity of detailed regulations of abortion providers that push at the outer limits of Roe v. Wade’s original abortion protections.[5]

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