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

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Commentary and analysis of Ohio criminal law, plus whatever else comes to mind, served with a dash of snark.  Continue Reading »

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"Sufficient particularity"

Sometimes the biggest victory is when you don't lose, and that's probably the feeling among the defense bar about the Ohio Supreme Court's decision last week in State v. Codeluppi.  

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What's Up in the 8th

As I've mentioned before, the 8th District leads the league in Gallaghers.  Sean's been there since 2003, Eileen A. Gallagher joined the bench in 2010, and Eileen T. Gallagher was elected in 2012.  I was going to figure out what the chances were of getting all three on the same panel -- a sure way to win some bar bets -- but then I remembered that one of the reasons I went to law school is they promised there wouldn't be any math.  Must be a pretty small chance; it happened in a criminal case for the first time last week.

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Case Update

It's the last month for oral argument in the Supreme Court's 2013 term, and next week features a big 4th Amendment issue:  in two cases, the Court will consider whether police need a warrant to search the contents of a cellphone incident to the owner's arrest.  This week features argument in ABC v. Aereo, Inc., where the Court will consider the copyright laws to see if Aereo can offer streaming of TV shows to people who pay them a fee, without Aereo having to pay the broadcast companies anything. Could be huge, at least for couch potatoes.

Down in Columbus, a big victory for the defense bar, especially those who defend drunk driving cases.  We'll talk about that one in detail on Wednesday.  In the meantime, let's head over to the courts of appeals, where several interesting cases are on tap.

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Making a list

The nice thing about the car ride from here to Columbus is it gives you time to think.  That is, if you can take your mind off the breathtaking vistas that the magnificent landscape in that stretch offers.

The Ohio Public Defenders Commission publishes the standards for attorneys who take assigned criminal cases.  They figured it was time for a re-write, and I was invited to be on the committee to do that.  So that's what I spent the ride thinking about.

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Wednesday ruminations

Well, so much for that.  My buddy Paul Kuzmins of the County public defenders once hiked the Appalachian Trail.  That was a walk in the park -- okay, not such a good metaphor -- compared to the reception he received in oral argument in the Supreme Court last week in State v. Tate.  Tate had met several young girls in a library and enticed one to follow him outside, where he propositioned her for sex.  The 8th District's reversal of his conviction seemed pretty cut-and-dried, too:  the prosecutor hadn't asked any of the witnesses to make an in-court identification of Tate, so the panel tossed it on that basis.

As even Kuzmins had to concede, the law does not absolutely require an in-court identification, so long as the circumstantial evidence is sufficient to establish that the defendant was the one who committed the crime.  And there was oodles of it in this case, including Tate's admission that he was the one in the library surveillance video.  Even better was the fact that Tate had given the girl he propositioned his business card, and as the police were questioning him, another officer dialed the number on the card.  Guess who answered?

Kuzmins' main argument was that this was simply error correction.  The problem is that the court's typical response to that argument is, "Yeah, we don't do error correction, but as long as we're here, we might as well correct some error."  We're not even going to handicap this one.  The only good news for Tate is that the 8th District didn't address any of his other assignments of error, so the case will go back for that.

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What's Up in the 8th

You know things are getting bad when for the second week in a row the only win for defendants in the 8th District's cases is getting driving privileges to work.

The W comes in State v. SemenchukSemenchuk was convicted in 2007 for drunk driving, emphasis on "drunk":  the police found Semenchuk driving in circles in a parking lot, with his pants pulled down after having urinated on himself, and determined he was too intoxicated to take the field sobriety tests.  He was given a lifetime drivers suspension, but applied for occupational driving privileges seven years later.  The statute specifies that one can seek "modification or termination" of a lifetime ban, but only after 15 years, so the judge denies it.  But earlier this year in State v. Manocchio the Supreme Court held that a grant of limited privileges wasn't a "modification" within the meaning of the statute, so Semenchuk is able to drive to work, and we can only hope that they have bathrooms on his job site.

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Case Update

If you're still crying in your beer because your March Madness bracket cratered - the ones in Warren Buffett's $1 billion challenge didn't even get out of the first round - cheer up.  You've got a chance to recoup your losses with SCOTUSblog's Supreme Court challenge:  picking the right outcome in six upcoming Supreme Court decisions.  Be forewarned:  only one criminal case in the six, with the others pertaining to patents, copyright restrictions, and one "involving post-judgment discovery and the Foreign Sovereign Immunities Act of 1976."  (Time out while you try to temper your enthusiasm.)  My picks on those would be dictated by coin flips, because I'd rather pluck out my eyeballs than (a) read up about those cases, or (b) go back to law school, which seems to be the requirement for entering the challenge.  You also have to predict whether the Court will grant cert in six other cases, and at least four of those - two dealing with the 6th Amendment, one with the 4th, and one with the 2nd - look vastly more interesting.  Maybe they'll take in one of those cases and I can write about that, instead of making up stuff about basketball tournaments.

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Bad warrant, good search?

The Toledo police arrested Brian Hoffman on a misdemeanor warrant.  In doing so, they discovered evidence linking him to a murder.  They got a warrant, and found more evidence.

So far, so good.  But there's a problem.  The misdemeanor warrant was "issued" by the clerk of courts.  There's case law that says a clerk can be the "neutral, detached magistrate" contemplated by the 4th Amendment, but he's still required to make a determination of probable cause.  He can't simply rubberstamp a warrant that says no more than that the police officer believes that the defendant committed a particular crime.  That's exactly what happened with the misdemeanor warrant in Hoffman's case.

So on Tuesday, everybody got together for oral argument in the Ohio Supreme Court to decide if there was anything wrong with that.  

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Recent Entries

  • April 24, 2014
    "Sufficient particularity"
    The Supreme Court decides what you have to say in a motion to suppress
  • April 23, 2014
    What's Up in the 8th
    Surprisingly, more sentencing decisions, and criminal defense lawyers aren't so bad after all
  • April 21, 2014
    Case Update
    Yes, Virginia, there is such a thing as taking too long to rule on a motion
  • April 18, 2014
    Making a list
    What should a lawyer have to do to get on the assigned counsel list?
  • April 16, 2014
    Wednesday ruminations
    Stuff on oral arguments, Las Vegas, and laws named after kids.

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