The Briefcase by Russ Bensing | Musings by an Ohio criminal lawyer

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Commentary and analysis of Ohio criminal law, plus whatever else comes to mind, served with a dash of snark.  Continue Reading »


Making a list

The nice thing about the car ride from here to Columbus is it gives you time to think.  That is, if you can take your mind off the breathtaking vistas that the magnificent landscape in that stretch offers.

The Ohio Public Defenders Commission publishes the standards for attorneys who take assigned criminal cases.  They figured it was time for a re-write, and I was invited to be on the committee to do that.  So that's what I spent the ride thinking about.

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Wednesday ruminations

Well, so much for that.  My buddy Paul Kuzmins of the County public defenders once hiked the Appalachian Trail.  That was a walk in the park -- okay, not such a good metaphor -- compared to the reception he received in oral argument in the Supreme Court last week in State v. Tate.  Tate had met several young girls in a library and enticed one to follow him outside, where he propositioned her for sex.  The 8th District's reversal of his conviction seemed pretty cut-and-dried, too:  the prosecutor hadn't asked any of the witnesses to make an in-court identification of Tate, so the panel tossed it on that basis.

As even Kuzmins had to concede, the law does not absolutely require an in-court identification, so long as the circumstantial evidence is sufficient to establish that the defendant was the one who committed the crime.  And there was oodles of it in this case, including Tate's admission that he was the one in the library surveillance video.  Even better was the fact that Tate had given the girl he propositioned his business card, and as the police were questioning him, another officer dialed the number on the card.  Guess who answered?

Kuzmins' main argument was that this was simply error correction.  The problem is that the court's typical response to that argument is, "Yeah, we don't do error correction, but as long as we're here, we might as well correct some error."  We're not even going to handicap this one.  The only good news for Tate is that the 8th District didn't address any of his other assignments of error, so the case will go back for that.

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What's Up in the 8th

You know things are getting bad when for the second week in a row the only win for defendants in the 8th District's cases is getting driving privileges to work.

The W comes in State v. SemenchukSemenchuk was convicted in 2007 for drunk driving, emphasis on "drunk":  the police found Semenchuk driving in circles in a parking lot, with his pants pulled down after having urinated on himself, and determined he was too intoxicated to take the field sobriety tests.  He was given a lifetime drivers suspension, but applied for occupational driving privileges seven years later.  The statute specifies that one can seek "modification or termination" of a lifetime ban, but only after 15 years, so the judge denies it.  But earlier this year in State v. Manocchio the Supreme Court held that a grant of limited privileges wasn't a "modification" within the meaning of the statute, so Semenchuk is able to drive to work, and we can only hope that they have bathrooms on his job site.

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Case Update

If you're still crying in your beer because your March Madness bracket cratered - the ones in Warren Buffett's $1 billion challenge didn't even get out of the first round - cheer up.  You've got a chance to recoup your losses with SCOTUSblog's Supreme Court challenge:  picking the right outcome in six upcoming Supreme Court decisions.  Be forewarned:  only one criminal case in the six, with the others pertaining to patents, copyright restrictions, and one "involving post-judgment discovery and the Foreign Sovereign Immunities Act of 1976."  (Time out while you try to temper your enthusiasm.)  My picks on those would be dictated by coin flips, because I'd rather pluck out my eyeballs than (a) read up about those cases, or (b) go back to law school, which seems to be the requirement for entering the challenge.  You also have to predict whether the Court will grant cert in six other cases, and at least four of those - two dealing with the 6th Amendment, one with the 4th, and one with the 2nd - look vastly more interesting.  Maybe they'll take in one of those cases and I can write about that, instead of making up stuff about basketball tournaments.

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Bad warrant, good search?

The Toledo police arrested Brian Hoffman on a misdemeanor warrant.  In doing so, they discovered evidence linking him to a murder.  They got a warrant, and found more evidence.

So far, so good.  But there's a problem.  The misdemeanor warrant was "issued" by the clerk of courts.  There's case law that says a clerk can be the "neutral, detached magistrate" contemplated by the 4th Amendment, but he's still required to make a determination of probable cause.  He can't simply rubberstamp a warrant that says no more than that the police officer believes that the defendant committed a particular crime.  That's exactly what happened with the misdemeanor warrant in Hoffman's case.

So on Tuesday, everybody got together for oral argument in the Ohio Supreme Court to decide if there was anything wrong with that.  

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The missing witness

There are cold cases, and then there are frigid cases.  Back when the Cleveland police finally discovered Anthony Sowell's House of Horrors - over a period of several years, he kidnapped, raped, and killed eleven women, hiding their bodies in his house and yard - they also discovered that there were about three thousand rape kits sitting in their evidence room which had never been submitted to BCI for testing.  Many were nearing two decades old, so the rush was on to test them before the statute of limitations expired.

The 8th District made those cases a lot easier to prove in their decision last week in State v. Bowleg.  

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What's Up in the 8th

You know defendants are having a tough time in the 8th District when the only favorable decision is one that allows a guy who killed two people while driving drunk to get his license back.

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Case Update

The march toward plutocracy continues with the Supreme Court's decision in McCutcheon v. Federal Election Commission, striking down the aggregate limits for contributions to candidates for federal office.  That's not an unreasonable position; it's hard to make the argument that my $2,600 contribution to one congressional candidate will not be corruptive, but my $2,600 contribution to each of twenty congressional candidates will be.  (Note to congressional candidates reading this:  the check's in the mail.  Really.  No, really.)  Still, the decision occurred with the backdrop of John Kasich, Scott Walker, Chris Christie, and Jeb Bush trundling off to Las Vegas to curry favor with Sheldon Adelson, the world's eighth-richest person, who'd announced that he was looking for a Republican candidate to back in the presidential contest in two years.  That announcement wasn't taken lightly; Adelson contributed $93 million in 2012.

The oral argument on whether police need a search warrant to examine a cell phone's contents is coming at the end of the month.  We're still waiting the decisions in several other criminal cases, so maybe we'll have something to talk about before then.

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Recent Entries

  • April 18, 2014
    Making a list
    What should a lawyer have to do to get on the assigned counsel list?
  • April 16, 2014
    Wednesday ruminations
    Stuff on oral arguments, Las Vegas, and laws named after kids.
  • April 15, 2014
    What's Up in the 8th
    Two decisions reveal the influential role I play in the 8th's decisions. Not.
  • April 14, 2014
    Case Update
    April Madness?
  • April 10, 2014
    Bad warrant, good search?
    17 years of bad arrest warrant practices in Toledo come to a head.