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 »


Leave of Absence

I've got to take a vacation from this for a while.  I've got a lot of work coming up; at last count, I've got appeals involving some 5,000 pages of transcripts to get done in the next month.  The bigger problem is that I've got some major family medical issues I'm dealing with.  The blog takes about eight to ten hours a week.  Between work and being essentially a full-time caregiver, I just can't do that right now.

I do want to get back to this, because I enjoy and it keeps me abreast of what's going on in the law.  But I just don't have the time right now to put out a quality product.

I'm shooting to start up again in January.  Check back then, and enjoy the holidays.

Continue reading "Leave of Absence" »

Case Update

Israel Leija apparently had a death wish.  Apparently intoxicated, he led police officers on a car chase that reached speeds of 100 mph, during which he twice telephoned the police and told them he had a gun and would shoot any officers who tried to stop him.  His wish was granted by a Texas state trooper, Chadrin Lee Mullenix.  Mullenix was positioned as a sniper on an overpass, and despite being told to stand down by his supervisor as the police were laying down road spikes, Mullenix fired six shots into Leija, killing him, then bragged, "How's that for proactive?"

SCOTUS handed down its first decision of the term last week in Mullenix v. Luna, granting immunity to Mullenix in a lawsuit by Leija's family.  The fact that it was by a vote of 8-1, and came without the case being even briefed and argued, suggests that whatever ongoing debate there might be over the use of excessive force by police, the Supreme Court isn't going to be joining it.

In addition to the case on allied offenses, which I discussed on Friday, the Ohio Supreme Court handed down one other decision, in State v. BlankenshipBlankenship had consensual sex with a 15-year-old when he was 21, which got him convicted of unlawful sexual conduct with a minor, a fourth degree felony, and got five years of community control sanctions.  Oh, and then there was the little matter of having to register as a sex offender for the next twenty-five years.

Blankenship claimed that the latter requirement constituted cruel and unusual punishment.   That essentially requires him to show that registration would shock the conscience.  Pfeifer and O'Neill agree that in this particular case it does, but adoption of their view would essentially gut the Adam Walsh Act's classification system; instead of automatically imposing a classification based on the crime committed, a judge would have to weigh each case to decide whether registration should be required.  

Several takeaways.  First, it's a plurality opinion; O'Donnell and Kennedy concur only in judgment.  The court never would have reached Blankenship's issue if not for its decision in State v. Williams (discussed here).  Up until then, the court had consistently held that prior sex registration schemes were "remedial" rather than punitive; you never reach the issue of cruel and unusual punishment if it's not punishment.  The concurrence takes up 14 pages - almost as long as the plurality opinion's 15 - to argue that the court got it wrong in Williams, and the AWA should be considered remedial.  There's substance to that argument; every Federal court, including the Supreme Court, has rejected the claim that the AWA is punitive.

Second, the court addresses not only whether the statute is cruel and unusual under the 8th Amendment, but under the Ohio Constitution as well.  This continues the court's newfound willingness to hold that the state constitution "provides protection independent" of the Federal one.

A couple of interesting court of appeals cases... 

Continue reading "Case Update" »

Johnson is dead

This should have been an easy one.  Antonio Earley had an accident while driving drunk, and pled to one count of aggravated vehicular assault and one count of OVI.  The judge sentenced her to three years for the former and six months for the latter, and ran them concurrently.  Earley complained that the two offenses merged, but that argument can be easily disposed of:  RC 2929.41(B)(3) specifically states that the sentence for a misdemeanor conviction for OVI can be imposed consecutively to a sentence for aggravated vehicular assault if the judge decides to.  Whether two offenses are allied is determined by legislative intent, and if the legislature intended that the two sentences could be served consecutively, that's a pretty clear indication that the legislature didn't intend for the two offenses to merge.  And that's exactly what three justices of the Ohio Supreme Court decided this week in State v. Earley

The other four... well, they decided in a different direction.  And in so doing, they did a major rewrite of Ohio's law on allied offenses, and pretty much buried the court's 2010 decision in State v. Johnson.  

Continue reading "Johnson is dead" »

What's Up in the 8th

Not much.  Some weeks the court will hand down a decision on some significant issue, sometimes not.  This time, not.

We do learn some things.  From State v. Price, we learn that while a judge can't modify a felony sentence once it's journalized, he can modify or waive costs at any time.  We don't learn much from State v. Ford; when an opinion begins by telling us that "this is Nathan Ford's sixth appeal from his convictions in 2006 of 53 counts of rape, gross sexual imposition, kidnapping, felonious assault, and aggravated robbery," we can fairly predict without reading any more that the outcome of the seventh will be no different.  

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

Does Batson mean anything?

Foster v. Chatman presented the Supreme Court with an opportunity to clarify its ruling in Batson v. Kentucky as to what was required to show racial discrimination in the prosecution's exercise of peremptory challenges.  As I explained here, Foster was a black man convicted by a Georgia jury of killing a white woman, and his lawyers subsequently obtained the notes used by the prosecutors for voir dire.  The notes might as well have been titled, "How to Keep Nigras off the Jury."  The black jurors' names were marked in green highlighter, they were referred to as "B#1," "B#2," and so on, and the investigator had written a report stating that "if we had to pick a black juror"  -- God forbid - he recommended one in particular, "with a big doubt still remaining."  All of the blacks on the jury wound up being struck by the prosecution.

The argument was last Monday.  The Friday afternoon before, the Court sent a letter to the lawyers:

Counsel should expect questions at oral argument on whether certiorari in this case should be directed to the Supreme Court of Georgia or the Superior Court of Butts County, Georgia, and what significance, if any, that determination may have on the Court's resolution of the case.

If you're wondering what that even means, so am I, and I didn't achieve enlightenment from reading the first fourteen pages of the oral argument, where that was the only issue discussed.  In fact, half the hour's time was consumed by debate about which court the justices would send the case back to - trial or state supreme court being the options - and what issue those courts might decide. 

I'm sorry, but that's stupid.

Continue reading "Does Batson mean anything?" »

A lawyer's duty

Timothy Thomas shot his wife in the back of the head while they were sitting in a car.  His first break came when she lived.  His second was a plea bargain to attempted murder with a one-year gun spec.  His third was that the judge only gave him six years.

He tried for a fourth.  After he lost his appeal, which was centered around the argument that his plea wasn't voluntary, he filed a motion under AppR 26(B), which allows the court to reopen an appeal if the appellate attorney was ineffective. 

According to Thomas, at least, he seems to have been cursed with attorneys striving to attain simple mediocrity.  He argues first that his appellate attorney was ineffective for not raising the ineffectiveness of his trial counsel, the latter having failed him by not enforcing a plea bargain which would've gotten him four years instead of six.  In State v. Thomas, that goes nowhere, since the "four-year agreement" seems to exist only in Thomas' imagination, and there's more reliable evidence - like, oh, what was actually said in court - to contradict it.

But Thomas also complained that his appellate lawyer was ineffective for "not consulting with Thomas and arguing his desired assignments of error."  To which the court replies,

Appellate counsel has no duty to contact the appellant, and not contacting the appellant is not ineffective assistance of appellate counsel.


Continue reading "A lawyer's duty" »

Case Update

Ah, Monday, and here you are, thirsting with knowledge.  What information shall I impart?  A preview of the Supreme Court argument today in Foster v. Chatman, an opportunity for the Court to re-examine the Batson holding?  An analysis of the Ohio Supreme Court's decision last week in a death penalty case?  Nope.  It's this:

Ruth Bader Ginsburg does twenty push-ups a day. 

And according to this article, she did all kinds of stuff - parasailing, white water rafting - well into her seventies.  Kinds of stuff that I didn't do in my twenties, let alone now.  I guess if I hadn't subscribed to Jerry Seinfeld's admonition to avoid sports where the object is to not die, I'd be on the Supreme Court right now. 

As for Foster, Foster is a black man convicted and sentenced to death for killing a white woman.  As I explained before, the defense team subsequently obtained a copy of the prosecution's notes, which included a color ("colored"?) scheme by which black juries were identified in green highlighter, with various notations and suggestions on how to remove them while offering a non-racial reason for doing so.  The prosecution used peremptories to remove all four blacks from the jury.  Putting an additional racial spin on the case is the prosecutor's telling the jury in closing argument, "We have got to believe that if you send somebody to death, that you deter other people out there in the projects from doing the same again."  We'll see what happens, but the defense seems to have a point that if the record in this case doesn't convince the Court that "purposeful discrimination" occurred here, it "will render Batson meaningless." 

In State v. Dean, the Ohio Supreme Court affirms Dean's conviction and death sentence for killing one person and attempting to kill six others, in a series of three crimes.  He argues that trying the three cases together prejudiced him, but that's not an argument you're going to win if the three cases are part of a continuing course of criminal conduct.  Dean does add a twist to the joinder argument:  he claims that he would have wanted to testify about one of the shootings but not the others, and thus having a joint trial violated his 5th Amendment rights.  The court dealt with that issue 35 years ago, and held that this required a "convincing showing" that the defendant has "important testimony" to give concerning one case, and "a strong need to refrain from testifying in the other."  I'm not sure how you make a convincing showing that you're got important testimony to give without actually testifying, but that's the standard.

A couple of cases in the courts of appeals... 

Continue reading "Case Update" »

What's Up in the 8th

Well, that settles that.  A number of judges up here have taken to giving jury instructions before closing argument.  According to CrimR 30(A), and the Ohio Supreme Court, it's mandatory that the judge give instructions after argument.  Tia Hariston makes that the centerpiece of her appeal from a petty theft conviction, and the panel agrees with Hariston.  To a point; the Supreme Court opinion says that the defendant must still show prejudice from having the instructions given before than after argument, and the panel in State v. Hariston finds none.

And when I read the opinion, I thought, how would you ever show prejudice in that situation?  How would you ever show that the outcome of the trial changed because the order of giving jury instructions changed?  I'm still drawing a blank.

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

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Recent Entries

  • November 18, 2015
    Leave of Absence
    Taking a break.
  • November 16, 2015
    Case Update
    Are sex registration laws unconstitutional? The answer won't surprise you
  • November 13, 2015
    Johnson is dead
    The Supreme Court makes a muck of allied offense law
  • November 11, 2015
    What's Up in the 8th
    Slow week, with a 26(B) case again taking center stage.
  • November 9, 2015
    Does Batson mean anything?
    Looking at the oral argument in Foster v. Chatman
  • November 5, 2015
    A lawyer's duty
    What duty does an appellate lawyer owe to his client?
  • November 4, 2015
    Case Update
    Ruth Bader Ginsburg is one tough broad
  • November 3, 2015
    What's Up in the 8th
    Incompatible defenses, a new award, and the timing of jury instructions
  • October 29, 2015
    Three is more than twelve
    Another rant on consecutive sentencing
  • October 27, 2015
    What's Up in the 8th
    More HB 86 sentencing, a grand jury run amok, and the distinctions between harmless error and prejudicial error