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Last updated 03.29.08
FREE SPEECH
Restrictions on Viewer Access to All Phases of Lethal Injection
Executions
Phelps-Roper v. Taft (funeral protest law)
Toledo's anti-panhandling law
VOTING RIGHTS
ACLU of Ohio v. Brunner (lack of precinct count optical scan)
REPRODUCTIVE RIGHTS
Planned Parenthood of Cinci v. Taft, (Restrictions on Use of
Mifepristone)
FOURTH AMENDMENT SEARCH AND SEIZURE
Warshak v. United States
CRIMINAL JUSTICE
Hasan v. Ishee
City of Toledo v. Avery (Sex Offender Residency Restrictions (SB 5))
Adam Walsh Act (SB 10) Sex Offender Registration and Notification Cases
Doe v. Dann (Ohio’s Adam Walsh Act)
State ex rel. King v. Welbaum and State v. Welbaum
State v. Bodyke
State v. Nelson
HABEAS PETITION
State of Ohio v. Foust
DEATH PENALTY
State of Ohio v. Ruben Rivera and State of Ohio
v. Ronald McCloud
INTERSTATE COMMERCE
Toledo v. Eischen
PRISON CONDITIONS & POLICIES
Austin, et al. v.
Wilkinson, et al. (Supermax)
SIXTH AMENDMENT
In Re Brian Jones - Amicus
Free Speech
Restrictions on Viewer
Access to All Phases of Lethal Injection Executions
FACTS: The State of Ohio conducts
the “intubation phase” of the lethal injection process outside public
view. The process of inserting the catheter into the veins of the
condemned, while graphic and sometime gruesome, is a necessary part of
the execution.
LEGAL THEORY: The Ninth Circuit Court of
Appeals in San Francisco recently held that the First Amendment compels
a right of public viewing for all phases of a lethal injection, because
the event is a matter of public concern and debate.
STATUS: Our case was filed in September
2003. In January 2004, after the state installed cameras to monitor the
intubation phase, we believed the case was going to be favorably
settled. However, the state balked on settling the case after a prisoner
struggled with guards on the way to be executed & the incident was seen
on camera by the witnesses. On September 15, 2004, we filed an Amended
Complaint broadening the relief requested. On November 17, 2004, the
case was dismissed pursuant to a motion we filed. We filed a Second
Amended Complaint on November 9, 2005. The State filed a Motion to
Dismiss on January 20, 2006. We filed our Response in Opposition to the
Motion to Dismiss on March 6, 2006. On July 21, 2006, the Court granted
Defendants’ Motion to Dismiss as it relates to our prisoner plaintiff
for failure to exhaust. The Motion to Dismiss as it relates to our other
plaintiffs was denied on the same date. On August 18, 2006, Defendants
filed an Answer to our Complaint. On March 9, 2007, Defendants filed a
Motion for Summary Judgment. A Response in Opposition to Defendants
Motion for Summary Judgment was filed April 30, 2007. A Motion for Leave
to File a Second Amended Complaint was filed on November 11, 2007.
On March 26, 2008, the court ordered that the motion to file a second
amended complaint should itself be amended and refilled by April 9. The
court also denied the motion for summary judgment, though he granted the
defendants leave to refile it at a later time.
Phelps-Roper v. Taft (funeral protest law)
FACTS: Ohio’s HB 484, effective
September 4, 2006, makes it a criminal offense to engage in picketing or
“other protest activities” within 300 feet of a funeral, burial service
or funeral procession one hour before, during, and one hour after those
events.
LEGAL THEORY: The restrictions
required by this law are so sweeping they outlaw numerous
constitutionally protected speech activities. And because the law
applies to such events as funeral processions by utilizing a “floating
bubble zone” where speech is not permitted, the law can’t help but turn
entire cities and towns into no-free-speech areas.
STATUS: Our Complaint and Motion for
Preliminary Injunction were filed on August 24, 2006 in U.S. District
Court in Cleveland. Motions in Opposition to Preliminary
Injunction were filed by Defendants on September 11, 2006. Our
Response to those motions was filed on September 20, 2006. Answers
to the Complaint were filed by Defendants on October 20, 2006. Cross
Motions for Summary Judgment were filed on December 1, 2006. Cross
Motions Opposing each other’s Motions for Summary Judgment were filed on
January 1, 2007. Both sides filed a Reply to Response to Motion
for Summary Judgment on January 10, 2007. On March 23,
2007, the court issued its ruling. The court held that the
floating bubble zones around funeral processions were unconstitutional
but that the fixed bubbles around funeral homes and funerals were
constitutional. Our Notice of Appeal was filed on May 10, 2007.
All final briefs were filed as of September 27, 2007. Oral
argument was held on February 5, 2008 and we now await a decision.
Toledo's anti-panhandling law
FACTS: The City of Toledo has had, for decades, a law prohibiting virtually any sort of solicitation anywhere in the City unless it is (1) by a good deeds membership organization, of its members, for the benefit of the organization, or (2) done with a license, which may be obtained only on a showing that, among other things, it is done on behalf of a good deeds organization, that other solicitation for that organization is not occurring,
and that the solicitation will benefit the people of Toledo. Levaughn Harris panhandles to make ends meet. He has been repeatedly prosecuted, and in some cases incarcerated for doing so.
LEGAL THEORY: The law violates the First Amendment. Panhandling is protected First Amendment activity and while some regulation may be allowed, the sort of blanket prohibition the City of Toledo has enacted violates decisions of the US Supreme Court going back at least to 1940.
STATUS: In response to a letter threatening litigation, the city determined that it would no longer enforce its anti-panhandling law. This is the last time the case will appear on the docket.
Voting
Rights
ACLU of Ohio v. Brunner (lack of precinct count optical scan)
FACTS: In December 2007, Ohio Secretary of State Jennifer Brunner issued a report outlining some of the security shortcomings of Ohio's voting system. In addition, Brunner proposed a system of paper ballots where the ballots are shipped away immediately to a central place where they are 'read' by a machine called an optical scan. Because the ballots are shipped away immediately, voters would not get a chance to correct a mistake on their ballots. In late December 2007, Brunner cast a tie-breaker vote forcing Cuyahoga County to switch to this system for the March 2008 primary.
LEGAL THEORY: If voters do not have the opportunity to correct ballot errors, their votes likely will not be counted. This violates both the Constitution and Ohio law. More specifically, our lawsuit claims the lack of precinct counts, instead of central counts violates the Due Process and Equal Protection clauses of the Fourteenth Amendment of the U.S. Constitution and Section Two of the Voting Rights Act of 1965.
STATUS: Our Complaint was filed in U.S. District Court on January 17, 2008 and was followed by the filing of our Motion for Preliminary Injunction on January 28, 2008. A hearing on the Motion for Preliminary Injunction was held on February 5, 2008. At the end of the seven-hour hearing, Judge O’Malley denied the ACLU’s request for an injunction for the March 4th primary. While the court recognized that we raised valid concerns, the court found it was too late for Cuyahoga County to make changes in time for the March 4th primary.
Although the March 4 primary was held without notice technology in Cuyahoga County, recent legislation prohibits further use of the particular system used there. Defendants assert that our claims are now moot. We are seeking assurances that future elections will not use any form of non-notice technology.
Reproductive
Rights
Planned Parenthood of Cinci v. Taft (Restrictions on Use of Mifepristone)
FACTS: Ohio’s HB 126 was passed into
law in June 2004 and became effective on September 23, 2004. The
law regulates and restricts the use of mifepristone, an
abortion-inducing medication.
LEGAL THEORY: Our suit argues that
the law is unconstitutionally vague; that the law will violate women’s
right to bodily integrity; that the law is unconstitutional because it
lacks an exception to its restrictions where necessary to protect
women’s life or health; and that the law imposes an undue burden on
women’s right to choose abortion.
STATUS: The lawsuit seeking a preliminary injunction on behalf of three Planned Parenthood affiliates in Ohio and Preterm (in Cleveland), was filed on August 2, 2004. On September 22, 2004, U.S. District Court Judge Susan Dlott issued a preliminary injunction preventing the law from going into effect, as it otherwise would have the next day. In October 22, 2004, defendants filed an appeal in the U.S. Court of Appeals for the Sixth Circuit with respect to the District Court’s order granting the preliminary injunction. Oral argument took place on December 7, 2005. On February 24, 2006, the Sixth Circuit affirmed in part, vacated in part the District Court’s ruling, and remanded it back to that court for further proceedings. This decision applied only to the scope of the injunction by the District Court and had nothing to do with the merits of the case. On April 20, 2006, we filed a Motion for Summary Judgment and Permanent Injunction or, in the Alternative, Renewed Motion for Preliminary Injunction and Memorandum in Support Thereof. On September 27, 2006, the Court granted our Motion for Summary Judgment and Permanent Injunction. Defendants filed their Notice of Appeal to the Sixth Circuit on October 26, 2006. The issue of attorneys’ fees is currently before the District Court. On February 22, 2007, Governor Strickland was removed as a Defendant in the
lawsuit after he filed a brief on February 20, 2007 asking for such, citing his lack of opposition to the use of mifepristone that HB 126 seeks to restrict.
Oral Argument is scheduled for April 23 2008, in Cincinnati in the Sixth U.S. Circuit Court of Appeals.
Fourth Amendment
Search and Seizure
Warshak v. United States
FACTS: Pursuant to a federal
investigation of a company owned by Steven Warshak, the U.S. Postal
Inspection Service and FBI sought and secured numerous orders under the
Stored Communications Act. Those orders led to the federal
government obtaining numerous e-mails of Warshak’s from several ISPs.
LEGAL THEORY: The Stored
Communications Act violates the Fourth Amendment by allowing seizure of
certain e-mails without probable cause and a warrant and the SCA was
applied wrongly with respect to Warshak.
STATUS: On July 21, 2006, the U.S. District Court for the Southern District of Ohio enjoined the United States, pending final judgment on the merits of Plaintiffs' claims, from seizing, pursuant to court order, the contents of any personal email account maintained by an Internet Service Provider in the name of any resident of the Southern District of Ohio without providing the relevant account holder or subscriber prior notice and an opportunity to be heard on any complaint, motion, or other pleading seeking issuance of such an order. This case is currently in the U.S. Court of Appeals for the Sixth Circuit. Our amicus brief was filed on November 27, 2006. Oral argument proceeded on April 18, 2007. On June 18, 2007, the Sixth Circuit largely affirmed the District Court’s July 21, 2006 ruling. On August 2, 2007, Defendants filed a Petition for Rehearing En Banc. We joined an amicus brief in opposition to an en banc review that was filed on September 5, 2007. An Order was filed on October 19, 2007 granting the Petition for En Banc Hearing. Oral argument was held on December 5, 2007. We now await a decision.
Criminal Justice
Hasan v. Ishee
FACTS: Siddique Hasan was
convicted for his alleged role in the murder of prison guard William
Vallandingham during the Lucasville prison riot in 1993. In April
2003, Hasan filed for a Writ of Habeas Corpus in U.S. District Court.
As part of that litigation, his attorneys filed a Motion to Conduct
Discovery and a Motion for Evidentiary Hearing on January 8, 2004.
On June 14, 2004, U.S. District Court Magistrate Merz issued a Decision
and Order Granting in Part and Denying in Part the Motion for Discovery
and Denying Without Prejudice the Motion for Evidentiary Hearing.
LEGAL THEORY: Hasan, in fact, was
not the killer, a contention supported by testimony in trials of other
Lucasville defendants, by at least eight witnesses, and various
affidavits. In addition, the sole evidence linking Hasan to the murder is
testimony by another inmate who has since recanted.
STATUS: Our Motion for Leave to File
an Amicus Brief in Support of Hasan’s Objections to Magistrate's
Recommendations was filed on October 11, 2006. On October 24,
2006, that Motion was granted.
City of Toledo v. Avery (Sex Offender Residency Restrictions (SB 5))
FACTS: Persons adjudicated
Sexually Oriented Offenders, Habitual Sexual Offenders, and Sexual
Predators are forbidden from residing within 1000 feet of a school.
They are also required to register their address with the county
sheriff. Effective April 29, 2005, a prosecutor may file an action
to evict a sex offender from a residence within 1,000 feet of a school.
LEGAL THEORY: The case raises issues
of substantive and procedural due process and of the right against
self-incrimination.
STATUS: The judge heard arguments on a motion to dismiss on August 8, 2007 and later denied that motion. After the judge denied the motion to dismiss because the law was unconstitutional, Avery entered a no contest plea and was found guilty. When Avery is sentenced, we plan to file an appeal.
Adam Walsh Act (SB 10) Sex Offender Registration and Notification Cases
FACTS: Ohio’s old system of sex offender classification, determining whether or not and how often convicted sex offenders must report to local law enforcement, was far from perfect but did rely in large part on how likely an offender was to re-offend. Such laws were challenged in the past because of their punitive nature and their retroactivity. However, those challenges have been largely unsuccessful. Ohio, as many other states soon will, adopted a state version of the federal Adam Walsh Act at the urging of the federal government. The new law scrapped Ohio’s old classification system and replaced it with a stricter system that does not take into account offenders’ likelihood to re-offend and applies even to offenders whose reporting requirements ended before passage of the new law. We are litigating a number of cases arising under the act.
While courts found the old sex offender registration and notification system constitutional, the legal landscape around that law has changed, and there is reason to believe that the new law, which is more egregiously problematic than the old, will not pass constitutional muster. We are litigating a number of cases arising under Ohio’s Adam Walsh Act.
Doe v. Dann (Ohio’s Adam Walsh Act)
LEGAL THEORY: A class action arguing that the requirement that challenges to reclassification must be made within 60 days of notification of reclassification is arbitrary and unreasonable and that community notification based on new classifications before they can be appealed violates due process.
STATUS: Our Complaint and Motion for Preliminary Injunction and Temporary Restraining Order were filed on January 25, 2008. The Ohio Attorney General filed a Motion in Opposition to Motion for Preliminary Injunction and TRO on January 29, 2008. On February 13, 2008, the Court issued a briefing schedule on the issue of additional briefing for our motion. An agreed order staying community notification and the 60-day filing deadline is in place until the court rules on the merits of our claims.
Our brief is due on April 14, 2008.
State ex rel. King v. Welbaum and State v. Welbaum
LEGAL THEORY: In a mandamus action and direct appeal consolidated by the Second District Court of Appeals, we are arguing that because the new classification system is punitive and violates vested rights, indigent persons being reclassified are entitled to appointed counsel.
STATUS: The cases were placed on an expedited schedule and have been fully briefed. We await a date for oral argument.
On March 19, 2008, the Court of Appeals issued its decision dismissing the mandamus action and inviting further briefing on the merits of the direct appeal. Our brief is due on March 31.
State v. Bodyke
LEGAL THEORY: This comprehensive challenge to Ohio’s Adam Walsh Act is direct appeal in the Sixth District Court of Appeals of three cases, consolidated by the court of appeals
STATUS: Our brief was filed March 17 2008.
State v. Nelson
LEGAL THEORY: The Common Pleas Court in Stark County consolidated a large number of cases raising among them comprehensive challenges to the Adam Walsh Act.
STATUS: We are amicus in this case. Our brief was filed January 31, 2008.
HABEAS PETITION
State of Ohio v. Foust
FACTS: Kelly Foust is on death
row in Ohio after being found guilty in 2002 of committing Aggravated
Murder, Attempted Murder, Rape, Aggravated Arson, and other offenses.
His case went through the available paths in Ohio courts to no avail.
LEGAL THEORY: Foust is entitled to a
full round of review in the federal courts of all federal constitutional
issues properly raised in the Ohio courts. The process is by
petition for writ of habeas corpus.
STATUS: The petition was filed March 22, 2007. The State of Ohio filed its response on May 21, 2007. Our traverse was filed October 5, 2007. We filed a motion to conduct discovery on November 12, 2007. The State filed a memo-opposing discovery on November 19, 2007.
On January 15, 2008, the Court issued an Opinion and Order denying our motions to conduct discovery and for allocation of funds for experts.
DEATH PENALTY
State of Ohio v. Ruben Rivera and State of Ohio
v. Ronald McCloud
FACTS: As part of his legal defense, in a case carrying the possible penalty of capital punishment, Rivera’ current attorneys argue Ohio’s method of killing via lethal injection is unconstitutional.
LEGAL THEORY: Lethal injection as administered in Ohio constitutes cruel and unusual punishment in violation of the condemned’s Eight Amendment rights.
STATUS: On March 1, 2007, Rivera filed a motion in Lorain County Common Pleas Court to declare the death penalty in Ohio unconstitutional because of Ohio’s reliance on lethal injection as the sole means to execute condemned prisoners. On March 29, 2007, a hearing on that motion took place where the Judge James Burge agreed to wait on a ruling until after a May 24, 2007 evidentiary hearing is held. At the May 24, 2007, Judge Burge granted Defendant’s motion to continue the hearing and appointed Jeff Gamso as counsel for the lethal injection aspect of the case. On June 6, 2007, the Defendant filed a motion regarding ripeness. On the same date, Plaintiff filed a motion to preclude imposition of a death sentence. On July 24, 2007, the Court held that whether to preclude death as a sentence because of lethal injection concerns was properly raised and the Court will conduct a hearing on the issue. The Court also ordered the Ohio Department of Rehabilitation and Correction to produce various documents. On July 30, 2007, a hearing was set for November 5, 2007 in order to take evidence on Rivera’s motion to declare Ohio’s death penalty unconstitutional. On August 27, 2007, the ODRC filed a motion seeking to stay the Court’s orders of June 20, 2007 and July 24, 2007 to produce documents. That motion was denied on the same day. On August 22, 2007, the ODRC filed for a Writ of Prohibition against Judge Burge in the Ohio Supreme Court arguing that Burge does not have the judicial power or jurisdiction to order documents to be produced related to lethal injection or to consider the issue in the context of a criminal prosecution. On August 27, 2007, Judge Burge denied a request by ODRC to stay the discovery order until the Ohio Supreme Court rules on whether it was proper. On August 30, 2007, ODRC asked the Ohio Supreme Court to expedite its determination of the prohibition action in light of the Judge's ruling on the August 27. On October 31, 2007, the Ohio Supreme Court dismissed the Motion for Writ of Prohibition without citing a reason. On November 1, 2007, Judge Burge ordered the ODRC and its Director to appear before him on December 12, 2007, with various documents demonstrating how lethal injection is carried out in Ohio.
After Defendants turned over documents for the December 12, 2007 hearing, Judge Burge issued an order on the same day ordering all parties to not disseminate the materials except to their experts. Eventually, Judge Burge issued an order on January 7, 2008 ruling that the records turned over on December 12, 2007 can be obtained only from the Lorain County Prosecutors Office through the court.
Our expert’s written report was delivered on February 14, 2008. The State’s expert’s written report was delivered March 21, 2008. A status conference is scheduled for April 3 2008 with the evidentiary hearing on lethal injection scheduled for April 7, 2008.
INTERSTATE COMMERCE
Toledo v. Eischen
FACTS: Chris Eischen, an Ohio
resident, drove to Michigan to purchase beer with a friend. After
crossing the border back into Ohio, they were pulled over by Liquor
Control authorities and ultimately charged with buying alcohol for
consumption in Ohio from a Michigan-based distributor, not licensed in
Ohio.
LEGAL THEORY: The charges against Eischen represent an unconstitutional infringement of the Commerce
Clause of the U.S. Constitution.
STATUS: Charges against Eischen were dismissed by the Toledo Municpal Court on Commerce Clause grounds. The case was appealed to the Sixth District Court of Appeals. Our Brief was filed March 12, 2007. Oral argument took place May 16, 2007. On August 31, 2007, the appeals court ruled the trial record was incomplete because there was no evidence the purpose was for personal consumption. The case was remanded back to the trial court which has now made the finding that the purpose was personal consumption.
On January 30, 2008, the Municipal Court Judge again dismissed the case on Commerce Clause grounds. On February 29, the City filed its notice of appeal. We now await a briefing schedule.
Prison Conditions
and Policies
Austin, et al. v. Wilkinson, et al. (Supermax)
FACTS: Opened in 1998, the Ohio
State Penitentiary, also known as the “Supermax” was built to house the
“worst of the worst” of Ohio’s criminals, and instead has become a
facility that houses inmates who are mentally ill, are there due to
procedural snags, or to fill bed space. The inmates spend
twenty-three hours a day in solitary cells, and there are no
opportunities for outdoor recreation, communication with other inmates,
or vocational programs such as those available to inmates at other
facilities. Mental health problems often go unchecked, with over
forty prisoners on suicide watch and three suicides since the prison
opened.
LEGAL THEORY: The conditions at Supermax
amount to Cruel and Unusual punishment and violate human rights
standards recognized under customary international law. The
procedures for sending inmates to the Supermax are so vague and
capricious that many of the transfers are arbitrary.
STATUS: In January 2001, we filed
our complaint in U.S. District Court. A class action was brought
in the name of select class representatives, alleging a variety of
claims, brought through the efforts of eight lawyers, all in cooperation
with the Center for Constitutional Rights. Shortly before trial,
we concluded a voluntary settlement with the ODRC that will (1) subject
the Supermax to two years of medical and mental health oversight by
outside expert physicians with the power to make binding changes to
prison decisions (2) result in the construction of a four million dollar
outside exercise area (3) limit the use of excessive restraints within
the prison, and (4) the payment of attorney fees and costs.
A four day trial involving three experts and twenty-five lay witnesses
was held beginning January 7, 2002. This trial focused solely on the
unresolved issue of classification: how inmates get into, and are
retained at, the Supermax. On February 25, 2002, we won. Judge Gwin
declared that the ODRC system of sending inmates to and retaining them
at the Supermax violated the Due Process Clause of the Fourteenth
Amendment – the first time any court has ever declared an entire penal
institution to do so. In March 2002, the Court ordered the state to
adopt a new set of procedures modeled largely on what we had requested.
The state has appealed. Our appellate brief was filed in November 2002.
No oral argument has yet been set by the Court of Appeals.
In December 2002, we filed motions to enforce compliance with the
Court’s order regarding the revision of the classification process, and
the movement of maximum security prisoners into the OSP without the
hearings mandated by the Court. A three day trial on that issue was held
in March 2003. We prevailed, but were granted only partial relief, while
the court strongly admonished the defendants to heed its order to the
letter. Monitoring activity is meanwhile ongoing and constant. We
continue active monitoring of classification decisions and conduct
periodic oversight visits with the medical monitors appointed by the
court. Three appeals from our various victories have been taken by
the state and all are pending. Oral argument on the first appeal was
held on October 30, 2003, and argued by Professor Jules Lobel of the
University of Pittsburgh Law School.
On June 10, 2004, the Sixth Circuit Court of Appeals affirmed in part,
reversed in part, and remanded to the District Court the appeals of four
2002 appeals. Briefly, the Court 1) found that confinement
at the Supermax prison is an atypical and significant hardship, 2)
reverses certain substantive changes in prison regulations directed by
the District Court, but 3) affirms all of the procedural changes made by
the District Court. In October 2004, Defendants filed a Petition
for Writ of Certiorari with the U.S. Supreme Court. In November
2004, we filed a Motion in Opposition to their cert petition. On
December 13, 2004, the U.S. Supreme Court granted Defendants Motion for
Writ of Certiorari and oral argument proceeded on March 30, 2005.
On June 13, 2005, the U.S. Supreme Court ruled the Constitution requires
a hearing for Supermax prisoners before being placed at the prison.
At the same time, the Court found the Ohio DRC satisfied prisoners’ due
process rights with the placement scheme it developed during this
litigation.
In April 2005, we also filed a motion in U.S. District Court asking why
the State should not be held in contempt of court, per an earlier court
ruling, for its proposed move of Ohio’s “death row” to OSP.
A trial on this issue took place from August 31 to September 2, 2005.
On September 30, 2005, Judge Gwin issued an order denying our Motion for
Preliminary Injunction to stop the move. However, Gwin deferred on
ruling on our Motion for Permanent Injunction until the Court can better
determine the restrictions placed on and privileges afforded to the
Death Row inmates at Supermax.
On October 20, 2005, we filed a Motion for Order Extending the
Jurisdiction of the Court Over Due Process Issues for One Year. On
March 21, 2006, Judge Gwin granted that Motion and denied the
Defendants' motion to terminate the prospective relief provided by the
Court's February and March 2002 Orders. Gwin further ordered Ohio
to modify its existing policy to include the procedural modifications
described within this order for the placement and retention of inmates
at OSP. Ohio shall fully implement these procedures within six months of
this Order, or a final disposition of this matter. On May 18,
2006, we filed a Motion for Leave to File a Second Amended Complaint in
order to address the issue of indefinitely confining “longtermers” who
are not receiving meaningful periodic reviews of their status thereby
violating their Fifth and Eighth Amendment rights. That Motion was
opposed via Motion filed by Defendants on June 19, 2006. On June
19, 2006 we filed a Motion for and Memorandum in Support of an Order
Extending the Provisions of the Stipulation for Injunctive Relief Until
07/07/07. Defendants filed an Opposition to that Motion on July
28, 2006 and filed their own Motion for Order to Terminate those same
provisions also on July 28, 2006. On August 3, 2006, our Motion
was denied and Defendants’ Motion was granted. On February
16, 2007, a hearing was held regarding the Level 4 and 5 classifications
of inmates after which a briefing schedule on the issue was set.
On March 16, 2007, a Joint Motion for Order To Extend This Courts
Jurisdiction Over Due Process Issues was filed by defendants.
On July 11, 2007, a Motion for Order to Re-Open Mental Health Claims was filed by all Plaintiffs. On September 4, 2007, a Motion for Order Extending the Jurisdiction of the Court was filed by Plaintiffs. On September 27, 2007, Judge Gwin issued an Opinion and Order granting in part and denying in part plaintiffs' motion for order directing defendants to modify their proposed prison administration policies. That Order was appealed to the U.S. Court of Appeals for the Sixth Circuit on October 26, 2007. On October 18, 2007 Judge Gwin issued an Order denying plaintiffs' motion for order to vacate previous judgment and reopen mental health claims.
On January 11, 2008, oral argument was held in U.S. District Court on our motions to extend jurisdiction and to terminate prospective relief. On 3-12-08, Judge Gwin terminated jurisdiction of the District Court. Negotiations are under way regarding attorneys fees.
Sixth Amendment
In Re: Brian Jones - Amicus
FACTS: Brian Jones was a public defender in Portage County. He had been licensed to practice law for three months and had never yet tried a case when he was assigned to a case before Judge Plough in Portage Municipal Court (in Kent). The case was scheduled for trial the day after he was assigned it. He actually learned about the assignment just a half-hour before trial. The judge gave him an extra two hours to prepare. When the time was up and Jones asked for a continuance so that he could adequately investigate the case and prepare his defense, the judge denied the request and ordered him to go forward with the trial. When he refused, he was held in criminal contempt by the judge.
LEGAL THEORY: The Sixth Amendment right to counsel is a right to the effective assistance of counsel. No attorney should ever be required to go to trial with so little time to prepare. Adequate assistance is just not possible under the circumstances. Jones was then punished by the judge for insisting on doing his job properly and providing his client with the effective representation the Constitution demands.
STATUS: Jones will be appealing the contempt finding. We will be signing an amicus brief on his behalf along with other organizations. The judge has recently issued a nominal fine to Jones in this case.
Our amicus brief is due to be filed on April 28, 2008.
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