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

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What's Up in the 8th

Cassandra Goodson was an "emotional strength coach" at Parmadale, a "juvenile residential treatment facility," and she pled guilty to eleven counts of sexual battery, gross sexual imposition, and unlawful sexual conduct with a minor for having sex with two residents of the facility.  The opinion informs us that her lawyer told her she'd get 10 to 12 years.  BZZZT!  Wrong answer:  the judge gave her four years on each of the counts, and stacked them for a total of 44 years. In State v. Goodson, the panel finds that the trial judge didn't explain that he could run the sentences consecutively. 

There's a boatload of law that says you don't have to, but frankly, those cases are stupid.  If you don't tell a guy that he can get up to eight years on a felonious assault it's coming back, but if you don't tell him since he's got five of them, he's looking at up to forty years in prison, that's okay? 

There's one problem, though:  the judge did tell Goodson about the possibility of consecutive sentences.

Continue reading "What's Up in the 8th" »

On the road again

Jay from the Supreme Court calls me last week, to tell me how it's going to go for my oral argument in Meigs County on Wednesday. 

Meigs County? 

Yep.  Every year, the Supreme Court decides to hold oral arguments "off site."  Translation:  away from the comfy confines of their building in Columbus, and instead in some place in the hinterlands.  One year they held it here in Cleveland, at Case Western University Law School, my alma mater.  Couldn't do that this year, oh no.  It's going to be in the gymnasium at the Pomeroy High School in Meigs County.  So not only will I be sweating, I'll be able to smell the sweat of those who have gone before me.

I couldn't have told you where Meigs County was at gunpoint, so I looked it up on Google.  Best I can figure, you go down I-77, hang a left at Nowhere, go another thirty miles, and there you are.  It's a little under four hours.

The guy from the Supreme Court was helpful.  He gave me the address of the high school.  Since I was going to stay overnight, I asked him what hotels there were in Pomeroy that he could recommend.  "Well, there aren't any," he confided.  "Everybody's staying up in Athens."  I found a room at the Holiday Inn Express, so, at least according to their ads, it will make me smarter.  Unfortunately, Jay told me that the justices are staying there, too, so it will make them smarter, which probably isn't a good thing for me.

I'm going to be arguing State v. Jones, the case on pre-indictment delay.  I've talked about it before; the very short version is that a woman claims that Jones raped her in the bedroom of his mother's apartment, with his mother sitting outside, supposedly oblivious to the woman's screams.  Although she clearly identified Jones by name, and gave the address where the incident allegedly occurred, the detective dropped by her house and made a phone call to her, and not getting a response to either, closed out the file five days later.  Nothing more was done on the case until they got a CODIS hit on Jones almost twenty years later; he was indicted the day before the statute of limitations expired.  His mother, who would certainly have been a critical witness for a consent defense, had died almost three years earlier.

The State and the Attorney General's office have amassed what seems like just short of three thousand cases holding that in order to establish "actual prejudice" for the pre-indictment delay analysis, I have to show that the lost evidence is "specific, concrete, non-speculative, and exculpatory."  In short, I have to show what the dead woman would have testified to, despite the fact that the only reason we don't know what she would have testified to is because the detective spent as much time investigating the case as I do in planning my weekly trip to the grocery store.

So, we'll hammer that out.  Meantime, an abbreviated schedule here.  I'll have the normal roundup of 8th District cases tomorrow - be afraid, be very afraid - and I'll tell you how the argument in Jones went on Thursday or Friday.  I'm off the following week (at least from here) to take a short vacation and get some work done.

Continue reading "On the road again" »

Money changes everything

The plurality opinion in the Supreme Court's decision in Luis v. United States a few weeks back was a ringing endorsement of a defendant's Sixth Amendment right to counsel.

We nonetheless emphasize that the constitutional right at issue here is fundamental:  The Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire.

As that last phrase might suggest, though, one comes away from the case with the firm impression that it mainly serves to corroborate the observation that the man who said money can't buy happiness never sat in a courtroom.

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Ruminations of an old lawyer

Back when I was a young lawyer, in nineteen-never-mind, I represented a guy on a carrying a concealed weapon charge.  He was black and 26, had lived in the inner city all his life, and that was the first case he'd ever had.  Read that again.  He mouthed off to a cop, the cop patted him down and found a gun.

I'd filed a motion to suppress, and I showed up the morning of the hearing on time.  "On time," in the county I practice in, is a relative term; my favorite courtroom memory is the time a lawyer stuck his head in and asked the bailiff, "What time are the nine o'clock hearings?" 

The judge, who I'll call Angelotta, came out about half an hour later, saw me standing there, and publicly berated me in front of the ten or so other lawyers.  "I'll get to your case when I get to your case," he scolded me.

I hadn't said a word.  But I was young.

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What's Up in the 8th

Here's the situation.  Potential client calls you, wants you to handle his criminal case.  One problem:  he's scheduled for trial in a week.  You file a notice of appearance and a motion to continue the trial date.  What do you think the chances are that the judge will grant it?

If you're in Cuyahoga County, the chances just got a lot better.

Continue reading "What's Up in the 8th" »

Case Update

Federal habeas relief is precluded so long as "fairminded jurists could disagree on the correctness of the state court's decision," and when an appellate court, in a 2-1 vote, reverses the trial court's ruling denying a habeas petition, that's a pretty good indication that fairminded jurists could indeed disagree, because two of them (presumably fairminded) did.  That's the Supreme Court's holding in Woods v. Etherton, summarily reversing the grant of relief by the 6th Circuit. 

That wasn't the only SCOTUS decision of note last week.  In what might be a portent of the End of Days, the Court ruled unanimously in favor of a sex offender in Nichols v. US, with that consummate friend of criminal defendants, Samuel Alito, penning the opinion.  Wilson spent eight years in prison for taking a minor across state lines to have sex, and registered as a sex offender in Kansas when he got out in 2011.  A year later, he hopped a plane and moved to Manila, where he was eventually apprehended.  His argument was simple:  the law requires a sex offender to register where he resides, not where he leaves, and since the Philippines are covered by the sex offender statutes, he wasn't required to tell them he was moving there.

The Court agreed, and while that's good news for Nichols, there won't be many following his path, at least not without legal consequences.  Just last year President Obama signed the Megan's Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders Act, which does as you might guess.  And no, they apparently couldn't come up with a catchy acronym.

Continue reading "Case Update" »

What I learned in Columbus, Part II

On June 27, 2013, the Cuyahoga County Grand Jury indicted Jermain Thomas for a rape he'd supposedly committed exactly 19 years and 364 days earlier.  It was a DNA match, the case got tried, and he got convicted.  In 1993, the penalty for rape was a minimum of 5, 6, 7, 8, 9, or 10 years, and a maximum of 25.  So the judge gave him a sentence of 8 to 25.

I got the appeal, and one of the things I argued was that Jermain was entitled to be sentenced under HB 86, which went into effect in 2011.  That statute provided that anyone sentenced after its effective date and whose sentence would be reduced was entitled to be sentenced under the new law.  For rape, that's a sentence of between 3 and 11 years.  One of the reasons I went to law school is because they promised there wouldn't be any math, but even I know that 3 is less than 5 and 10 is less than 25.

The panel was so impressed with my reasoning they reversed, due in small part to the fact they'd already ruled that way in three prior cases by the time mine got heard.  The State appealed, and although the Supreme Court rejected the first three cases, the spinner landed on mine, and off I went to argue the case on Tuesday.

Continue reading "What I learned in Columbus, Part II" »

What I learned in Columbus, Part I

I had an oral argument in the Ohio Supreme Court yesterday morning, and so did Jeff Gamso and Erica Cunliffe of the county public defender's appellate division.  That unit, commanded by the elfin John Martin, has topnotch talent.  Jeff writes his own blog and has argued cases before the US Supreme Court, and Erika has a solid record and one of the sharpest minds I know.  (Martin was otherwise occupied with the Quixotean endeavor of filing a motion for reconsideration in a case he lost last week by a 7-0 vote.  "When I walked in that courtroom, I counted two votes for my side, so don't tell me oral argument doesn't matter," he confided.)

I was there for the argument in State v. Jones, which presents the issue of whether HB 86 or pre-SB 2 law applies to all the defendants in the cold case rapes that have bubbled up here since someone finally discovered that there were umpteen thousand rape kits collecting dust in the evidence rooms of the Cleveland police department.  We'll talk about that one tomorrow.  Today, let's talk about Jeff's and Erica's case. 

They were there to try to keep Anthony Sowell from getting the needle.

Continue reading "What I learned in Columbus, Part I" »

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Recent Entries

  • April 19, 2016
    What's Up in the 8th
    New sentencing cases and a really crazy drunk defendant
  • April 18, 2016
    On the road again
    Time to pull out the travel mix CD. "One more radar lover gone!"
  • April 14, 2016
    Money changes everything
    Cyndi Lauper was right, especially when you're charged with a crime
  • April 13, 2016
    Ruminations of an old lawyer
    Gray hair has its benefits
  • April 12, 2016
    What's Up in the 8th
    Reversals of a denial of a motion to continue, and a of a motion to withdraw a plea. Plus, a new (and probably unintended) look at the failure to comply statute.
  • April 11, 2016
    Case Update
    SCOTUS hands down a summary reversal of the 6th Circuit in a habeas case, and appellate decisions on protective sweeps and excited utterances
  • April 7, 2016
    What I learned in Columbus, Part II
    On June 27, 2013, the Cuyahoga County Grand Jury indicted Jermain Thomas for a rape he'd supposedly committed exactly 19 years and 364 days earlier. It was a DNA match, the case got tried, and he got convicted. In 1993,...
  • April 6, 2016
    What I learned in Columbus, Part I
    Oral arguments in the Supreme Court
  • March 31, 2016
    Thursday Roundup
    Where Merrick Garland might stand on criminal cases, and yes, Blue Lives Matter, but this?
  • March 30, 2016
    Learning experience
    You can teach an old dog new tricks