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 »


Case Update

If you're jonesing for some news from SCOTUS, now that it's out of session until October, SCOTUSblog lifts that monkey off your back by advising us that there are fifteen new books on the Supreme Court in the works, including The Enigma of Felix Frankfurter.  Frankfurter was the counterpart to David Souter:  a staunch liberal when appointed by FDR, he became decidedly conservative on the bench, refusing, for example, to apply the Constitution to the states.  Probably his most egregious opinion was Minersville School District v. Gobitis, which upheld the expulsion of Jehovah's witnesses from school because they refused to say the pledge of allegiance, a decision the Court overruled just three years later.  Frankfurter also refused to hire Ruth Bader Ginsberg as a law clerk because she was a woman, despite the recommendation of the Dean of the Harvard Law School, where she had graduated at the top of her class.

I think I'll wait for the movie.

Down in Columbus, the court was busy spewing out decisions in criminal cases.  One case that didn't make the cut was State v. Laber, which involved the issue of whether "terroristic threats" under RC 2909.23 - in Laber's instance, speculating to another coworker about which fellow employees he would shoot, and where he'd position bombs in the workplace - implicates the First Amendment.  Well, it would have involved that issue, had it been raised in the lower courts.  It wasn't, leaving only the issue of sufficiency of the evidence.   After the oral argument, I wrote that "why the court even took the case is a mystery," and it proved a mystery the court couldn't solve, either; last week, it dismissed the case as having been improvidently allowed. 

But the court did hand down three decisions.  State v. Limoli deals with the application of the sentencing provisions of HB 86 to crimes committed before its passage, and, I believe, provides further support for my argument here a couple weeks back that HB 86 governs sentences in "cold cases," and thus a defendant convicted of a 1994 rape faces a 3 to 11 year sentence, rather than 10 to 25 years.  In State v. Amos, the court resolved a split between the 8th District and the 8th District:  two different panels had come out with on the same day, one holding that a judge had to get a presentence report before placing a defendant on community control sanctions, and one holding that she didn't.  Spoiler alert:  she does.

The last decision was probably the most significant:  in State v. Bonnell, the court sought to clarify the requirements for imposition of consecutive sentences.  Spoiler alert:  they didn't.  In any event, we'll talk about Bonnell on Wednesday, and Limoli and Amos on Thursday.

In the courts of appeals...

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Summer break

summer.jpgTaking a few days off -- a week, to be precise -- to spend some time with three of my closest friends in a parallel universe.  (One in which, quite obviously, I age much more gracefully.)  I'll be back next Monday with more of my keen wit, lucid prose, and incisive commentary.  See you then.

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Supreme Court Recap - 2013 Term

Every year I do a recap of the US Supreme Court's decisions in criminal cases over the past term.  This is the one for 2013-2014.  You can find these by typing "supreme court review," followed by the year of the term, in the search box on the right.  The list below gives the decision (with a link to the opinion), and a brief summary of the case.  If I've done posts on oral argument or the decision itself, there will be links to those as well.

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Cold cases and 1.58(B)

Since the Cleveland police discovered that they had 3,000 untested rape kits lying around their property rooms and belatedly sent them off to BCI, we've had a rash of "cold case" rape prosecutions.  There have been innumerable people indicted on the 7,305th day -- 20 years -- since they allegedly committed the crime.  In several cases, the State didn't have a name for the defendant, just a DNA profile, so they indicted the profile as "John Doe."

There are a number of legal issues that crop up in these cases:  pre-indictment delay, Crawford... And a big problem is sentencing:  most of the cold cases are from 1993 and 1994, which was two major sentencing reforms ago.  People are scrambling to find out what the sentence for a particular crime was back in 1993.

I think that the relevant question is what the sentence for the offense is now.

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What's Up in the 8th

For the first time in a month, we have several reversals in the 8th District. 

One of them was an affirmance.

And yes, I know that doesn't make any sense.

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Case Update

Much of the talk about the Supreme Court's 2013 term continues to center around the Hobby Lobby decision, in which the five of the Court's male justices, all Catholics, decided that corporations have souls which might face eternal damnation if forced to allow their health insurance companies to provide certain contraception coverage to women, at no cost to the company.  On the other hand, my many California readers can take comfort in the fact that the Court might soon redress the Golden State's citizens' inability to get goose liver; in Association des Éleveurs de Canards et d'Oies du Québec v. Harris, the plaintiffs are asking the court to address the state law which bans importation of foie gras because of the manner in which it is produced.

On Thursday, I'll do my annual Supreme Court recap of the past term.  No force-feeding involved.

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Thursday Roundup

Today's Helpful Hint.  If you're a sex offender who's reading this, keep in mind that if you become destitute, you're legally required to tell the Sheriff that your address has been changed to the homeless shelter, and they'll come out and check to make sure.

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What's Up in the 8th

The State wins a search case last week, and State v. Moore provides our Moment of Eeeeewww:  the judge has to choose whether to believe cops' story that as they patted down Moore, bags of heroin fell out of his pants legs, or Moore's story that they retrieved the bags from his anal cavity.  <Your joke here.>   Since this happened on an Interstate after a traffic stop, I'm figuring that either the cops are telling the truth, of passersby had an unusually bad ride to work in the morning.

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Recent Entries

  • July 28, 2014
    Case Update
    If you're jonesing for some news from SCOTUS, now that it's out of session until October, SCOTUSblog lifts that monkey off your back by advising us that there are fifteen new books on the Supreme Court in the works, including...
  • July 21, 2014
    Summer break
    A week off...
  • July 17, 2014
    Supreme Court Recap - 2013 Term
    Review of SCOTUS' criminal decisions from the October 2013 term.
  • July 16, 2014
    Cold cases and 1.58(B)
    Minimizing the sentencing exposure on cold cases
  • July 14, 2014
    What's Up in the 8th
    The court delves into the mysteries of post-release control again, plus cases on pre-indictment delay and "unecessary burdens" in sentencing