Friday, March 29, 2013

Sometimes all we win is a dissenting vote (3 29 2013)

As a Dayton Criminal Defense Lawyer who handles criminal trials and appeals, I know too well that all we win on appeal sometimes is a dissenting vote. But one dissenting vote will not win your appeal.

Judge Carr of the Ninth District Court of Appeals for Summit County reminded her colleagues that "we are bound to defend the liberties of even the most despised members of society, for it is in their cases that our freedoms are most at risk." She warned against the temptation in criminal cases "to let the end justify the means." And she told her colleagues on the court that they must try to resist that temptation because it is their duty to "guard zealously the constitutional rights of individuals against overzealous police practices."

At issue in the case was whether an affidavit used to obtain a search warrant lacked sufficient indicia of probable cause. The police were investigating acts of criminal mischief. Since an officer surmised that the defendant had gone "online" to obtain the address of one victim of an act of criminal mischief, the police could get a search warrant to search all devices in the defendant’s home that was capable of accessing the internet.

Judge Carr, in her dissenting opinion, argued that such a violation of the privacy rights of the defendant and his family was not warranted to obtain "mere evidence" of an act of criminal mischief when the value of the piece of evidence was minimal. State v. Castagnola, 2013-Ohio-1215.

Contact me today if you need a Dayton Criminal Defense Lawyer for your trial, appeal or other post-conviction matter by going to my Web site and filling in the "contact me" form.

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