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 »

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New trials

Anthony Connor certainly has been aggressive in his attempt to get out from under the 30-to-life sentence he got back in 2013 for his conviction of aggravated murder.  His appeal went for naught, and the Supreme Court refused review; a similar fate befell his motion for reconsideration.  And so did his motion for new trial:  the judge denied it without a hearing, and last week the 8th District affirmed that.

I think that's the wrong call.

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What's Up in the 8th

Just last week I lamented the futility of a Batson challenge, so the 8th slaps me this week with State v. Saunders, in which it reverses a case with a Batson challenge.  So instead I get to talk about the futility of opposing a flight instruction, the futility of asserting self-defense, and the futility of new trial motions.

Helluva week.

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Case Update

Conservatives were diverted from their apoplexy over the increasing possibility taft.jpgthat Donald Trump might be the GOP standard-bearer this fall by Hillary Clinton's statement that she "loves" the idea of appointing Barack Obama to the Supreme Court.  I love the idea of becoming Jennifer Lopez's latest boy-toy, an event I think is equally likely.  That reminds me of the political trivia question, who is the only person to serve in the top position of all three branches of government?  William Howard Taft, of course, whose morbid obesity didn't prevent him from serving as Senator, President, and Chief Justice of the Supreme Court.

People who are actually on the Supreme Court handed down a decision last week in Montgomery v. Louisiana.  Four years ago, the Court held in Miller v. Alabama that mandatory life-without-parole sentences for juveniles were unconstitutional.  Montgomery makes that ruling retroactive to cases before the 2012 Miller decision, and Montgomery actually expands on Miller:  not only is a mandatory sentence of life without parole impermissible, but a discretionary sentence is unconstitutional unless the juvenile is found to be "irreparably corrupt" or "permanently incorrigible."

Montgomery also details how to determine whether a decision is retroactive:  while newly-announced constitutional rules of procedure generally aren't, if the decision announces a new substantive constitutional rule - a rule forbidding punishment of certain conduct, or "a rule prohibiting a certain category of punishment for a class of defendants because of their status or offense" - it's applied retroactively.  The Court leaves it up to the states to fashion a remedy:  release the defendant outright, grant him parole, or re-sentence him.

Montgomery, by the way, has been in prison since 1963.  He was convicted of murdering a police officer.  Montgomery turned seventeen two weeks after the shooting.

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Capitalism and plea bargaining

So today I heard a very well-substantiated rumor that, henceforth, the Cuyahoga County Prosecutors office will no longer reduce offenses involving guns.  No dropping gun specs, no dropping a CCW or weapons under disability a degree by dragging in the attempt statute.

You can debate the wisdom of this policy.  It might clog up the courts and force cases to trial which would otherwise have been resolved by plea.  Or it might sends a clear message to the community that gun crimes will not be tolerated, and that will have a deterrent effect on gun crimes. 

But here's a different question:   is it a good idea to allow a county prosecutor the power to do that sort of thing?

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Mens rea reform

If you're a teacher and you have sex with somebody who turns out to be a student in your school, are you guilty of sexual battery?  If you're charged with having a weapon under disability because you're under indictment for a drug offense, does the State have to show that you knew you were under indictment?  If you sell a gun to a minor, is it a defense that you didn't know the buyer was a minor?

Yes, yes, and yes; all of those are strict liability crimes as to that particular element.

It's arguably worse in the Federal system.  We're not even sure how many Federal crimes there are:  the Heritage Foundation counted almost 4,500 in 2007, the Congressional Research Service found another 400 added between 2008 and 2013, and that's not even counting the over 300,000 Federal regulations, many of which provide some penalty for noncompliance.  Many of them are strict liability offenses, too.

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What's Up in the 8th

The next family gathering at the Petronzio household should be an interesting one.  The family files for a protection order against him, which he violates, and so he eventually pleads to aggravated menacing.  The issue on appeal is that while the court referred him for a psychiatric hearing for competency and sanity, there's no indication of any reports or a hearing on the matter.  The latter is the real problem:  the statute makes a hearing mandatory.  Mandatory, schmandatory; the panel in Strongsville v. Petronzio rules that failure to hold the hearing is harmless error "where the record fails to reveal sufficient indicia of incompetence."

One might suggest that the purpose of the hearing is to provide "sufficient indicia" on the question of competence, but Petronzio doesn't break any new ground in that respect:  one decision along this line noted that the defendant testified at trial and apparently didn't need a drool bucket when doing so, and accordingly was found sufficiently lucid.  Yes, I made up the part about the drool bucket.

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Case Update

Last year, in Glossip v. Gross, the Supreme Court's decision affirming the use by Oklahoma of a particular drug in executions, there was talk about the Court possibly backing away from the death penalty, with Breyer noting that capital punishment was often inflicted arbitrarily, and suggesting that the death penalty might be unconstitutional.

So much for that.  Last week, the Supreme Court affirmed the death sentence of brothers Jonathan and Reginald Carr by an 8-1 vote.  The issue was the jury instructions, which told the jurors that they had to unanimously find at least one of the aggravating factors beyond a reasonable doubt, and that they were "not outweighed by any mitigating factors found to exist."  The Kansas Supreme Court reversed the sentences, deciding that the jury might have thought mitigating factors had to be found beyond a reasonable doubt as well.  SCOTUS found no such confusion.

The result was no doubt due, at least partially, to the sheer heinousness of the Carr's crimes.  They'd broken into a triplex where three roommates lived, with two of the roommates' girlfriends also present.  The Carrs raped the women, forced the five into the trunks of two cars and took them around to withdraw money from the victims' ATM's, took them back to the triplex and raped the women again, then drove the five out to a field and executed them; one survived because the bullet deflected off her hairclip.  Scalia's majority opinion devotes five pages to detailing all this, recounting that after the killings the brothers returned to the triplex "where they ransacked the place for valuables and (for good measure) beat Holly's dog, Nikki, to death with a golf club."  Sotomayor dissented, arguing that the Kansas decision was based on state procedural grounds, and noting that

The standard adage teaches that hard cases make bad law.  I fear that these cases suggest a corollary: Shocking cases make too much law.

The Court also heard oral argument last week in a case concerning a dispute over land on the Omaha Indian reservation in Nebraska, and another involving an Alaska man who wanted to use his hovercraft to hunt moose.  Stay tuned.

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Good result, bad law

Yesterday, in State v. Leak, the Ohio Supreme Court handed down a decision tossing out a search.  That's not a common occurrence, and it should be a cause for celebration.  Certainly for someone like me, who's a big fan of the 4th Amendment, although not as much a fan as one public defender I know who's got it tattooed on his arm.  I am not making that up.  Haven't gone quite that gangsta, but I'm still a fan.

So why am I not happy?

Continue reading "Good result, bad law" »

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Recent Entries

  • February 3, 2016
    New trials
    Motions for new trial just hit another obstacle
  • February 2, 2016
    What's Up in the 8th
    Just last week I lamented the futility of a Batson challenge, so the 8th slaps me this week with State v. Saunders, in which it reverses a case with a Batson challenge. So instead I get to talk about the...
  • February 1, 2016
    Case Update
    Conservatives were diverted from their apoplexy over the increasing possibility that Donald Trump might be the GOP standard-bearer this fall by Hillary Clinton's statement that she "loves" the idea of appointing Barack Obama to the Supreme Court. I love the...
  • January 29, 2016
    Capitalism and plea bargaining
    The Free Market Theory of Plea Bargaining, and other tales
  • January 27, 2016
    Mens rea reform
    Are strict liability crimes on the way out?
  • January 26, 2016
    What's Up in the 8th
    Sanity, competency, Batson challenges, plain error, and other news from the front
  • January 25, 2016
    Case Update
    Last year, in Glossip v. Gross, the Supreme Court's decision affirming the use by Oklahoma of a particular drug in executions, there was talk about the Court possibly backing away from the death penalty, with Breyer noting that capital punishment...
  • January 21, 2016
    Good result, bad law
    Analysis of the Supreme Court's decision in State v. Leak
  • January 20, 2016
    Fictitious pleas
    Should defendants be allowed to plead to something they didn't do?
  • January 19, 2016
    Case Update
    Judges, juries, and the death penalty