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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Hiatus

I need to take a break from blogging for a couple of weeks.  I've got some family medical issues to deal with, and work's been backing up.

I'll see you back here on May 4.

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The jurors speak

The sentencing hearing is the single most important proceeding in the criminal justice system, because it determines the outcome in about 98% of criminal cases.  Preparing for the sentencing hearing is just as important as preparing for the trial.  Most of the time, besides you, your client is the only one who's going to be speaking for the defense.  It's usually good, though, to have someone speak on his behalf, like a family member, an employer, a pastor...

Or one of the jurors at his trial.

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What's Up in the 8th

SB 2 went into effect in July of 1996.  Megan's Law became effective in July of the following year.  The new open discovery rules took effect in July of 2010.  My birthday is in July.

Coincidence?  I think not.  And each of those dates is the subject of a decision by the 8th District last week.  Well, my birthday not so much.  But coincidence or not, it's the first time in several weeks we've had any defense wins.

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Case Update

No decisions from SCOTUS last week, as everybody prepares for the oral arguments in the same-sex marriage cases two weeks from tomorrow.  SCOTUSblog reviews some of the amicus briefs which have been filed, including one from South Carolina which raises the absurd, albeit historically accurate, argument that since the Framers of the 14th Amendment intended to allow discrimination against women, they wouldn't have had any problems discriminating against gays.

SCOTUSblog has several interesting features, and one is the Petition of the Day:  each day, they highlight one of the ten thousand or so petitions for certiorari that the Court receives.  Friday's was Manzano v. Indiana, which presented the following issue:

Whether, when a criminal defendant seeks to vacate a guilty plea on the ground that defense counsel rendered ineffective assistance, in order to establish prejudice the defendant must show that but for counsel's errors he would not have pleaded guilty and would have insisted on going to trial (as this Court, all twelve federal circuits, and virtually all the states hold), or whether the defendant must also show that had he gone to trial he would have been acquitted (as the Indiana Supreme Court persists in holding).

Think somebody's pissed?

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The perils of snitching

I just renewed my application to stay on the district court's CJA list.  That's court-appointed counsel for Federal criminal cases, and for reasons I really can't fathom, I didn't apply to get on the list until three years ago.  The differences between that and handling state court appointments couldn't be starker.  I had a sentencing on Tuesday set for 11:00 AM.  I showed up at precisely 11, then realized I hadn't retrieved my glasses, keys, and cellphone from the metal detector station.  I asked the bailiff if I had time to run down and get them -- would've taken a couple, three minutes -- and she said no, the judge wanted to get started.  And he did, a minute later.  If I had a sentencing in the Justice Center at 11, I would've brought a couple magazines.

And the pay...  State appointments pay me $50 to $60 an hour, and a first degree felony is capped at $1,500.  Last year, just before the caps were raised (from $1,000), I spent eleven days in two rape trials and got $2,000 for my efforts.  But the cap on Fed cases is around $9,000, and they pay $126 an hour.  Most of the Federal defendants are housed in a correctional facility in Youngstown, about a 90 minute drive each way.  You'd be surprised how very few people are willing to pay me $126 an hour to drive my car.

So I was a little taken aback when I got into a conversation a while back with another lawyer, and found he'd been kicked off the CJA list because he wouldn't allow his clients to give information -- make proffers -- to the Feds.

*   *   *   *   *

Got a killer brief due tomorrow, so no post.  See you on Monday.

Continue reading "The perils of snitching" »

What's Up in the 8th

You'd think that with fifteen criminal decisions from the 8th District last week, we'd find something major, some new twist in the law, some interesting analysis, or, at minimum, something for me to bitch about.  (Or -- and here's a fascinating idea -- a case where the defendant actually wins.  Nah... lost my head there.)  Alas, it's not to be; after tossing out the opinions on consecutive sentencing or the pro se "motions to vacate a void sentence" (and whoever is handing those out in the prisons please stop) and some others, we're left with three decisions of any consequence, and that only because they teach us something we might not have known.  This will be on the test.

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Case Update

The destruction of civilization as we know it proceeds apace:  five people were taken out of the Supreme Court chamber during oral argument last Wednesday after shouting slogans about the Court's decisions on campaign finance.  As Elmer Fudd would say if he'd been in Apocalypse Now, "the howwow... the howwow..."

Two days earlier, the Court heard argument in Brumfield v. Cain, a death penalty case.  Various psychological reports indicate that Brumfield has an IQ of as low as 54, which would exempt him from execution under the Court's Atkins decision in 2002.  Alas, Brumfield was tried back in 1985, long before Atkins, and the mitigation hearing back then wasn't focused on Brumfield's mental disability.  In fact, there are about twenty volumes of the state's record, and the justices didn't appear to be overly keen on wading through all that, as opposed to making sweeping statements of law.  The Court granted cert on the question of whether a state has a constitutional duty to provide a separate hearing on the mental disability issue, or whether it can simply rely on the mitigation hearing.  Whether it decides to answer that question seems as much in the air as what the answer will be.

The Court doesn't have any oral arguments for two weeks, but returns to the death penalty question the week after that, in a case involving the use of the three-drug protocol for executions.  That's somewhat of an afterthought, though:  everybody's attention will be directed to the case the day before, Obergefell v. Hodges, on whether bans on gay marriage are unconstitutional.

There's not a criminal case for oral argument on the Ohio Supreme Court's calendar until May 20, so let's go take a look at the decisions in the courts of appeals...

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Exoneration

This is what I wrote about the Supreme Court's decision a year ago in Hinton v. Alabama.

There was one other SCOTUS decision that came beneath the radar, the per curiam opinion in Hinton v. AlabamaAs might be expected from a PC opinion - the case wasn't even argued -- there's no big question of law to be resolved here, but it's an interesting read nonetheless.  Hinton was on trial for capital murder, and one of the key issues was ballistics evidence:  according to the police, the bullets they recovered from the scene of the robbery/murders Hinton was charged with matched the gun found in a search of Hinton's house.  There was no other evidence linking Hinton to the crime.

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Recent Entries

  • April 20, 2015
    Hiatus
    I need to take a break from blogging for a couple of weeks. I've got some family medical issues to deal with, and work's been backing up. I'll see you back here on May 4....
  • April 15, 2015
    The jurors speak
    What happens when the jury thinks the sentence is too harsh?
  • April 14, 2015
    What's Up in the 8th
    Discovery violations, sexual predator hearings -- is that still a thing? -- and what I'm sure is the last case ever on post-release controls
  • April 13, 2015
    Case Update
    Something that isn't said isn't hearsay, probation violation hearings, and when the cops can break down your door without a warrant looking for the demon weed
  • April 9, 2015
    The perils of snitching
    I just renewed my application to stay on the district court's CJA list. That's court-appointed counsel for Federal criminal cases, and for reasons I really can't fathom, I didn't apply to get on the list until three years ago. The...
  • April 7, 2015
    What's Up in the 8th
    What's provocation in a bar fight, who's likely to be present for a burglary, and when a judge gets to watch a video at sentencing.
  • April 6, 2015
    Case Update
    Appellate cases on Batson challenges, mandatory probation, the Confrontation Clause, and bicycle stops. Yes, bicycle stops.
  • April 3, 2015
    Exoneration
    Freed after thirty years on death row
  • April 2, 2015
    Thursday Roundup
    Running out of room for condemned prisoners, is it a good thing when you get asked lots of questions in oral argument, and trash pulls gone wrong
  • March 31, 2015
    What's Up in the 8th
    The futility of pro se motions, when three turns into six, and hold on to your illegally procured goods