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

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


Prejudice and pre-indictment delay

So you and your woman have been going through some tough times, and she goes down to the police station and lays a rape charge on you.  Says it happened right there in your friend's apartment:  you pushed her into the bedroom and forced yourself on her, while a couple of your friends were sitting there in the living room the whole time. 

So you bring the friends in, they testify they never saw anything of the sort, and also get across the idea that you've had a very stormy relationship with this woman, and she's got some axes to grind.  Your investigator checks friends of hers to see if she's said anything inconsistent with her story.  The cops came and took pictures of the apartment, which shows there's nothing out of the ordinary, no overturned vases, broken furniture.  It's an eminently defensible case.

Except for one thing.  The charge is that you did this twenty years ago -- exactly twenty years ago, to be precise.  The one friend's dead, you have no idea where the other one is.  You don't know who her friends were back then, and even if you did, the chances of them remembering anything are zilch, the cops never came and took pictures...

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Backtracking on Nia

While a judge has pretty much unfettered discretion as to what prison sentence to impose, he doesn't have unfettered discretion to run them consecutively.  At least that's the theory; R.C. 2929.14(C)(4) requires him to make certain findings to do that.  The findings are fairly elastic - that consecutive sentences are necessary to protect the public or punish the defender, that they're not disproportionate to the seriousness of the offense and to the danger to the public, and that either the defendant committed the crime while on a judicial sanction, his criminal history shows the need for consecutive sentences, or the harm he committed was so great or unusual that a single sentence wouldn't reflect the seriousness of that conduct. 

And the judge doesn't have to give reasons for them.  But in the 8th District, he does have to make the findings.  The court will hold him to it, requiring strict compliance.

Until last week's decision in State v. Evans.

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What's Up in the 8th

I found a new way to win appeals in the 8th District:  have an incompetent (ex) bailiff.  I "saved" the defendant in State v. Francys nine years off his prison sentence because the bailiff had written up the journal entry to impose a twelve-year sentence on a 4th degree felony, instead of the twelve months the judge had imposed at the sentencing hearing.

Unfortunately, that seems to be about the only way to win an appeal in the 8th any more.

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Case Update

Nothing from SCOTUS this week, except for a stay of the 4th Circuit's decision declaring Virginia's ban on gay marriage unconstitutional.  State officials had urged the Court to accept the stay application as a formal petition for the Court's review to allow the Court "to decide the constitutionality of the Virginia's ban as quickly as possible.  Not so fast; the Court declined to do so, it's order stating that the lower court ruling is "stayed pending the timely filing and disposition of a petition for a writ of certiorari."  That's Courtese for "we'll take our own sweet time on this one, Sparky."

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Coming Attractions

Looks like SCOTUS will start off its October term with oral argument in a case which might have earned an appearance on this blog's Bullshit Traffic Stop of the Week.™  The defendant in Hein v. North Carolina ran afoul of the law by having a malfunctioning right brake light; that led to a stop and a subsequent search which turned up a plastic baggie containing cocaine.  It certainly looks like a good search:  the Court has repeatedly held that any traffic violation provides a justification for a stop.

One problem:  there wasn't a violation.  While North Carolina law requires cars to have a "stop lamp," no state court had ever interpreted this to mean that both brake lights have to be functioning.  Nonetheless, the North Carolina Supreme Court upheld Hein's conviction, holding that even though there wasn't an actual violation of the law, the officer's determination that there had been was "reasonable."

It's going to be interesting to see what the Court does with this.  A number of other courts have held that an officer's mistake of law can still provide a valid basis for a stop.  (That seems to be the minority view, though.)  On the other hand, the Supreme Court has always stressed that the police officer's conduct is to be viewed objectively; the subjective motivation for a stop is irrelevant.  This might call for an application of the precedent established in Goose v. Gander:  a stop is not "objectively reasonable" if it's based on a police officer's subjective believe in a non-existent violation of the law.  Besides, it's hard to see why ignorance of the law can't provide an excuse for the ordinary citizen but can for a police officer.

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The real story?

You want the narrative to be clean.  You want the players to be clearly identified, the good guys and the bad guys.  You want the moral of the story to be clear.

It never is.

It seemed to be at first, when the news came out of Ferguson, Missouri:  unarmed black man, a teenager in this case, shot by white cop.  But then some of the protesters turned violent, and then the video emerged showing Brown, only a few minutes before he died, shoving a store owner aside and walking out with a stolen $50 box of cigars.  The autopsy report showed all the bullets hitting him from the front, which refuted one witness' claim that he was shot in the back, and was at least consistent with the theory that he was charging the officer.

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What's Up in the 8th

You wouldn't need to look at the Ohio Supreme Court's latest stats to know that around 97% of criminal cases are resolved by pleas.  Last week, of the eight criminal decisions the 8th handed down, only one involved a trial, and that was to the bench.

That came in State v. Gaines, where the defendant, who had some mental issues - he walked up to an 84-year-old man and punched him for no reason, putting him in a coma for two months - claims that the judge should have inquired whether he was taking his medication before accepting the jury waiver.  Unfortunately, while the judge has to conduct a colloquy with a defendant before taking a plea, a jury waiver requires only that the defendant sign the waiver in open court.  Worse for Gaines, the judge did conduct a colloquy.

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Case Update

Only another six weeks until the Supreme Court's "long conference," their session the Friday before the term officially starts, where they weed out the petitions that have accumulated over the summer, trying to determine who's naughty or nice.  There's a case where a judge is accused of murder, another involving a disputed kidnapping, some with international implications...

Whoops, that's the fall movie previews!  I suppose I could tie this all in to the unwanted emergence of the Dumb and Dumber sequel, but let's not go there.  Still, the Court has already accepted forty cases for review, including several criminal ones of note.  We'll take a look at those later this week or next.

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