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 »


What's Up in the 8th

Oh, the days of yore in criminal discovery...  I'd file a request, three weeks later I'd get a form response giving me the names of witnesses and any statement my client had made, and then I'd trundle off to the pretrial, where the prosecutor would read me the police report, or at least those portions of it he deemed relevant.

But that's so five minutes ago.  Now I file the request electronically, and a couple of days later the discovery will be posted on the defense portal, police reports and all.  There'll also be another form, the State's request for discovery from me, but since I don't have anything, I'll ignore it.

Not after the 8th's decision last week in State v. Geraci.  

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Random thoughts

lawyer getting paid.jpgTaking care of business.  One time before I die, just one lousy time, I'd like to quote a client a fee and see his eyes widen as he shakes his head and murmurs, "Mr. Bensing, I don't see any way I can get that kind of money."  Instead of seeing his eyes widen and his face break into a broad smile as he says, "Wow!  That's a lot less than I thought it would be!"

I didn't get into this for the money, and it's a damned good thing.  A close version of that scenario played out last week, and not for the first time.  I once had a client say, "Yeah, they told me you charged less than other lawyers."  That doesn't happen so much anymore -- I've chased away several clients with fee quotes -- but still a bit too much for my tastes.

I mentioned this to another lawyer, who said, "You know what's the worst?  You quote 'em a fee, and they pull out a wad of cash and peel off a bunch of hundreds, and there's still some left on the roll."

I feel your pain, brother man.

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What's Up in the 8th

After an oral argument, it's common for your clients to ask, "How long before the court rules on the case?"  A good guess is two to three months, although I've had them take as much as six months.

In November of 2013, two Cleveland lawyers, Tim Marshall and Marc Doumbas, were convicted of bribing the victims of their client's sexual batteries to go easy on recommendations of sentencing.  I handled Doumbas' appeal.  Both cases were argued eight and a half months ago. 

The wait for Marshall ended this week, with bad news.  

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Case Update - OSC Edition

The notion of the Roberts Court as a conservative one took a hit last week, with the Court striking down state gay marriage bans and upholding the Affordable Care Act, the latter in an opinion written by the Chief Justice.  Tucked away was a win for liberals in a race discrimination case - the Court rejected the contention that plaintiffs claiming housing discrimination had to show intentional discrimination and held that proof of disparate impact would be sufficient - that surprised many. 

In one criminal decision of note, Johnson v. US, the Court struck down the residual clause in the Armed Career Criminal Act (oral argument discussed here) as being unconstitutionally vague.

They were busy down in Columbus, too, handing down decisions in two criminal cases and hearing oral arguments in two others.  Let's take a look.

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New life for the Ohio Constitution

Sometimes, it's hard to come up with stuff to write about, but not so this week, and probably next.  We discussed Ohio v. Clark, SCOTUS' most recent case on the continued evisceration of the Confrontation Clause, on Wednesday, and the Ohio Supreme Court has issued three decisions on criminal cases just this week.  We'll talk about State v. Brown today.  It has some good news for 4th Amendment fans, even though strictly speaking it's not about the 4th Amendment.

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Crawford takes another beating

I was a little surprised when the 8th District reversed Darius Clark's conviction for child abuse.  I was very surprised when the Ohio Supreme Court, in a 4-3 decision, affirmed the 8th District.  I wasn't at all surprised when the United States Supreme unanimously reversed the Ohio courts last week in Ohio v. Clark.

Clark was convicted of several felonious assault counts for the brutal beating of two children, a 3-year-old boy and an 18-month-old girl.  (To cement his status as a Really Bad Human Being, Clark had been left alone with the children because he was the pimp for their mother, whom he regularly sent to Washington, D.C., to work as a prostitute.)  At issue in the case was the admissibility of statements made by the boy to two teachers, telling them that "Dee Dee" did it when they saw bruises on him and asked how he got them. 

The child was found incompetent to testify, but the judge let the teachers' statements in.  The 8th District, and the Ohio Supreme Court, determined that because the teachers were under a mandatory duty to report child abuse they were acting as agents of law enforcement, rendering any statements made by the child testimonial and thus barred by Crawford v. Washington

Four takeaways from the SCOTUS decision:

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What's Up in the 8th

Either trial judges here are getting better or appellate lawyers are getting worse:  at least half a dozen appeals raise nothing other than manifest weight or sufficiency of the evidence.  Typical is one I handled, State v. BlandBland was charged with breaking into a house and robbing a man at gunpoint.  He got a major break from the jury when it convicted him of only burglary, abduction and theft, acquitting him of aggravated burglary, kidnapping, and the firearms specs. 

While making their getaway, the robbers, one of whom was wearing a ski mask with a single eyehole, scraped their car against the side of the house.  Three days later a cop chased a car which turned out to have damage to the one side - the cops even matched the broken side-view mirror with the one left at the scene of the robbery - and found a gun and a ski mask with one eyehole underneath the front seat.  The cop testified that Bland was the guy who ran from the scene, and it's his girlfriend's car.  (Which she reports stolen ten minutes after the stop.)  Oh, and did I tell you the part where Bland's fingerprints were found on the table where the stolen TV had been sitting?  My major accomplishment was keeping a straight face during oral argument.

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Case Update - SCOTUS edition

Next week, the United States Supreme Court is going to make a ruling or two - in the same-sex marriage and Obamacare cases - which will change the course of American history, because that's what the Supreme Court does from time to time.  The decisions announced last week did not go quite that far, but one of them, Ohio v. Clark, might have changed the course of the Confrontation Clause jurisprudence articulated just a decade ago in Crawford v. WashingtonClark overruled the Ohio Supreme Court's decision that a child's statements to teachers about being sexually abused had to be excluded because the teachers' role as "mandatory reporters" made them government agents for Crawford purposes, rendering the child's statements testimonial.  We'll cover that later this week.

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Recent Entries

  • July 5, 2015
    What's Up in the 8th
    Speedy trial, HB 86 v. SB 2, and getting that extra pound of flesh and pint of blood
  • July 1, 2015
    Random thoughts
    Mo' money, Scalia's invective, and the death penalty
  • June 30, 2015
    What's Up in the 8th
    It's all about me: I lose one, I'm still waiting for one
  • June 29, 2015
    Case Update - OSC Edition
    SCOTUS heads toward the end of the 2014 term, and the Ohio Supreme Court issues two decisions in criminal cases
  • June 26, 2015
    New life for the Ohio Constitution
    In State v. Brown, the Ohio Supreme Court holds that the Ohio Constitution's protection against illegal search and seizure are greater than the 4th Amendment's.
  • June 24, 2015
    Crawford takes another beating
    Confrontation Clause jurisprudence under Crawford v. Washington survives last week's decision in Ohio v. Clark. Barely.
  • June 23, 2015
    What's Up in the 8th
    I go one for two -- it is all about me, after all -- and other tales from the trenches
  • June 22, 2015
    Case Update - SCOTUS edition
    The US Supreme Court had a busy week
  • June 18, 2015
    Another look at Ruff
    The 8th District looks to whether State v. Ruff clarified allied offense law, and the results aren't pretty
  • June 16, 2015
    What's Up in the 8th
    If I were judge for a day