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

Three weeks of opinions to wade through, and we find a very good search case, a very bad evidence case, and some stuff in between.

Dewanna Buckway falls in between.  HB 86 introduced the concept of "mandatory probation":  except in certain cases, a judge couldn't send a defendant to prison for a fourth or fifth degree felony if they didn't have a prior felony record.  Buckway pleads guilty to obstructing justice, a 5th degree felony, and her only prior conviction is for aggravated trespass, a misdemeanor.  The judge sends her to prison for six months anyway.  The panel in State v. Brockway decides that since her lawyer didn't object at the sentencing - Brockway's brief says the lawyer did, and cites the transcript page - it can only be reviewed for plain error.  That shouldn't really matter; that requires you to show that a manifest injustice occurred, and sending someone to prison who shouldn't be sent to prison seems to clear that bar.  The panel decides to the contrary, and I'd be more upset about this, except Buckway was granted judicial release, so that pretty much moots the whole thing.

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Case Update - OSC edition

Sometimes, my writing gets me into trouble.  In addition to the blog, I do a weekly post on the listservs of the local and state criminal bar associations on the 8th District's decisions.  Back in February of 2013, my summary of State v. Tate was that the prosecutor forgot to ask any of the three witnesses to identity Tate, and so the court tossed it for insufficient evidence.  Word gets around, and the prosecutor made it a point to tell me the next week that I'd gotten it all wrong:  there was plenty of evidence of identification, which even the defendant didn't dispute.  The Supreme Court took the case, and as I detailed in my post about the oral argument, it turns out the prosecutor was right:  there was abundant evidence of that if a crime was committed - the issue that was really in dispute - Tate was the one who did it.  The Supremes concluded the same a couple weeks back, by a narrow 7-0 margin. The prosecutor sent me an email about the decision, and to avoid further such problems in the future, I've resolved to read the entire trial transcript of any decision I write about.

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On vacation

gONE FISHING.pngSome of my fondest childhood memories were fishing with my father.

Yeah, right.  I know a lot of people like it, but it bored me out of my skull.  You ever see me with a fishing pole, head down to probate court and get me a guardian, because I've clearly lost my mind.

I am on vacation, though.  Well, actually, I'm on vacation from here for a couple weeks.  I'm going away for a long weekend.  (It was supposed to be a long week, but that didn't happen.)  I'll be back here on the 15th.  See you then.

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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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Recent Entries

  • September 16, 2014
    What's Up in the 8th
    The highlights from three weeks worth of cases
  • September 15, 2014
    Case Update - OSC edition
    Three criminal law decisions from the Ohio Supreme Court
  • September 2, 2014
    On vacation
    Some of my fondest childhood memories were fishing with my father. Yeah, right. I know a lot of people like it, but it bored me out of my skull. You ever see me with a fishing pole, head down to...
  • August 28, 2014
    Prejudice and pre-indictment delay
    The difficulty of defending 20-year-old cases.
  • August 27, 2014
    Backtracking on Nia
    No more "strict compliance" on findings for consecutive sentences