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 »


Reefer madness

The State of Washington allows residents to grow marijuana for recreational and medical use.  Of course, marijuana is still an illegal drug under Federal law.  The Department of Justice has issued two directives instructing US Attorneys not to prosecute cases against patients using medical marijuana.  But the US attorney for the eastern district of Washington announced his intent to "vigorously" target individuals "even if such activities are permitted under state law."

And that's exactly what he did.  In August of 2012, Federal agents raided the rural home of Larry Harvey, 70, and his wife, Rhonda Firestack-Harvey, 55.  The two, along with their son, daughter-in-law, and a friend had a small marijuana plot in a remote corner of their 33-acre property.  The Feds seized plants, $700 in cash, and some legally owned firearms.  The "Kettle Falls Five" were indicted for five felonies involving the manufacture and distribution of marijuana, despite the fact that the government couldn't point to a single instance of any of them selling the drug.  They were also charged with possession of a firearm in furtherance of a drug trafficking crime.  Conviction would result in a 10-year minimum mandatory prison sentence.

Only three of the five wound up going to trial.  Just before the trial started, the government dismissed the charges against Harvey because he was dying of pancreatic cancer.  The friend copped a plea and agreed to testify against the defendants in return for a 16-month sentence.  The judge ruled that the remaining defendants couldn't argue that their actions were in compliance with state law.

The jury came back with a conviction -- on the manufacture of marijuana charge.  It acquitted on the other four counts, the ones which involved mandatory prison time.  The prosecutor immediately asked the judge to remand the defendants until sentencing.  One of the spectators could be heard muttering, "Are you kidding?"  The judge denied the request. 

Sentencing is set for June 10.  The US Attorney said that the verdict would do nothing to change the way his office prosecutes these cases.

I'm old enough to remember the trial of the Panther 21.  The Black Panthers were a paramilitary group of black activists back in the 60's and early 70's, whose contributions were two-fold:  they were extraordinarily successful at scaring the living hell out of white people, and at getting themselves killed by each other or by the police. 

In 1969, the Panthers decided to conduct a coordinated attack on two police stations, several department stores, and an office building in New York City.  An extraordinarily inept organization, they put less thought in how to do so than I spend on preparing my weekly jaunt to the grocery store.  Twenty-one were caught and indicted.  The government spent eight months trying the case, relying primarily upon informants (one of whom had been diagnosed as a schizophrenic and pathological liar), in front of a grossly biased judge who did nothing to conceal his contempt for the defendants and their attorneys.  The culmination of all this was the prosecutor suffering the ignominy of sitting there while the jury foreman intoned "not guilty" to each of the 156 counts of the indictments. 

And so it is with political trials.  There were a lot of those in the 60's:  the Chicago Seven, Angela Davis, the Camden 28, Bobby Seale.  None stuck; the convictions of the Chicago Seven were reversed on appeal, and Davis, the Camden 28, and Seale were acquitted.  And, like the Panther 21, their acquittals were probably the result of jury nullification, the jury's repulsion at the government's use of the criminal law to press a political agenda.

There's an old saying that there are four boxes which protect our liberty:  soap, ballot, jury, and cartridge.  The Kettle Falls Five would certainly appreciate that.

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Another go on Crawford

On the surface, Ohio v. Clark presents a simple question.  A three and a half year old son came to school one day with some serious bruises.  The teacher asked who did it.  The boy said that Dee -- Darius Clark, his mother's boyfriend -- did it.  At trial, the teacher's statements, along with the boy's statements to various family members, the social worker, and the police, came in.  The boy's testimony did not; the judge ruled he was incompetent to testify.  Clark was convicted and sentenced to thirty years in prison.

The 8th District reversed, finding that the statements to the family members didn't qualify under EvidR 807, and that the statements to the others were "testimonial" under Crawford v. Washington.  The statements to the police and social worker were easy calls there, but the court also held that teachers, by virtue of their statutory duty to report abuse, were "government agents," and thus statements to them were testimonial as well.  The Ohio Supreme Court affirmed, and the Potomac Nine took it in, and heard argument on the case on Monday, on the simple question of whether the teachers should have been regarded as "government agents."

Of course, it wasn't that simple.  My takeaways, in order of importance:

Continue reading "Another go on Crawford" »

What's Up in the 8th

A couple of weeks ago, I suggested that the separate panels in State v. Fuller and State v. Latimore had obviously gotten together in the opinion-writing stage:  in both decisions, released the same day, using much of the same language, the two panels held that while a court can't go beyond the indictment in ordering restitution of a child support arrearage, it can order payment of the entire amount due as a condition of community control sanctions.

Maybe there should have been some collusion between the panels in State v. Ayesta and State v. Yapp.  

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

Case Update

Ohio has contributed is fair share of significant Supreme Court decisions in criminal cases -- Mapp, Terry, and Roberts among them -- and it's slated to add to that collection with oral argument today in Ohio v. Clark.  If you put "'state v. clark' Crawford" in the search box on the right, you'll get my bloviations on the subject.  If you're not so inclined, the short version is that Clark's conviction for child rape was reversed because two teachers were allowed to tell the jury what the victim, who was declared incompetent to testify, told them about the abuse.  Both the 8th District and Ohio Supreme Court held that the teachers, by virtue of their statutory duty as mandatory reporters of abuse, were "government agents" for Crawford purposes, thus requiring that the child's statements be excluded as testimonial.  The Court's never ruled on the precise question of whether Crawford is limited to statements made to government agents, let alone who would be included as an agent.  I'll add to my bloviations with a post this week about the oral argument, and another when the decision comes down.  Your cup runneth over.

The Court did decide one criminal case last week, Yates v. US.  State and Federal wildlife officials had inspected Yates' fishing boat and found 69 grouper were too small.  They ordered him to port, but before he got there he tossed the fish overboard.  This resulted in is prosecution under the Sarbanes-Oxley Act, which makes it a crime to destroy "any record, document, or tangible object with the intent to impede, obstruct, or influence" a Federal investigation, even one that hasn't yet begun.  The case offered some opportunity to address prosecutor overreach and the Federalization of criminal law, but the Court, in a 5-4 decision, holds that Congress intended the phrase "tangible object" to include only an object "used to record or preserve information," and calls it a day.

In the past two weeks, the Ohio Supreme Court has issued three criminal decisions:  State v. White, State v. Brown, and State v. Black.  I am not making this up.  Black and Brown are simple:  the latter holds that a probate judge can't issue a search warrant (and I'm trying to figure out why anybody thought they should), and the former holds that the Interstate Detainer Act, which allows an incarcerated person to demand he be brought to trial on any pending charges, applies to a person held in a jail, as well as a state prison or correctional facility. 

White's a bit more complicated, and we'll talk about that later in the week.

On to the courts of appeals...

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Another round on Padilla

Back in 2010, the Supreme Court ruled in Padilla v. Kentucky (discussed here) that an attorney's failure to properly advise a non-citizen client of the potential ramifications of a guilty plea on his immigration status constituted ineffective assistance of counsel.  Prior to Padilla, the 8th District had been very good at vacating pleas of non-citizens.  Oddly enough, after Padilla, the 8th became much less lenient in that regard.

Last week, in State v. Ayesta, the 8th took another shot at the issue.  As is the case with so much of life, there's good news and bad news.  

Continue reading "Another round on Padilla" »

What's Up in the 8th

Sometimes, my reading of the 8th District's decisions each week leads to bafflement.  Bafflement about how the court came to a particular decision, or why the State or the defendant made a particular argument on appeal, or even why a case arose.  This week I hit the trifecta.

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

Scheduling change

Due to an extremely bad case of brief-writing, I'm delaying blog posts for a couple of days.  The Case Update will be postponed until next week, and the 8th District roundup will be postponed until Wednesday.  I'll have some ruminations on Thursday and Friday, which could change your life, or not.

Continue reading "Scheduling change" »

Thursday Roundup

The social network.  There's a case in the Supreme Court, Elonis v. US, which was argued in December and should be coming out soon.  Elonis was convicted of making threats in interstate commerce by posting rap lyrics on Facebook threatening his wife.  There are some First Amendment issues at play, but for the most part it's a case of statutory interpretation:   Elonis contends that the government should have to prove he intended to threaten his wife, while the government argues it only has to show that the average person would have objectively viewed the statements as threatening.  I was hoping to learn in oral argument that Scalia was on Facebook so that I could friend him, but that didn't happen.

The use of rap lyrics as evidence against Elonis is unusual, because he's white.  It's become routine for prosecutors to use rap lyrics to convict black defendants of crimes or prove that they were in gangs in order to add extra prison time under "gang enhancement" statutes.  Last June, Vonte Skinner was convicted of attempted murder in New Jersey, based largely on notebooks full of lyrics he'd written, including this one:  "Two to your helmet and four slugs drillin' your cheek to blow your face off and leave your brain caved in the street."  Not for the squeamish, but the state supreme court reversed, finding the evidence more prejudicial than probative, pointedly noting, "One would not presume that Bob Marley, who wrote the well-known song 'I Shot the Sheriff,' actually shot a sheriff." 

Don't expect prosecutors to back off.  As one commentator observed, "I don't know if there's any probative value. The only value it has is to scare the hell out of white juries, and it's effective."

Continue reading "Thursday Roundup" »

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Recent Entries

  • March 6, 2015
    Reefer madness
    Prosecutor overreach, Chapter 147
  • March 5, 2015
    Another go on Crawford
    Oral argument in Ohio v. Clark
  • March 3, 2015
    What's Up in the 8th
    Time for a confab on immigration consequences and allied offenses, and everybody misses the boat on a plea issue.
  • March 2, 2015
    Case Update
    Ohio's hope in SCOTUS today, and the Ohio Supreme Court spins the color wheel
  • February 26, 2015
    Another round on Padilla
    The 8th District clears up some post-Padilla case law