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

Welcome to The Briefcase

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


Taking time off

I've got some heavy stuff to do this week, SCOTUS is in recess, and the Ohio Supreme Court didn't come down with anything recently.  The 8th District did hand down some interesting stuff, but like I said, I've got some heavy stuff to do this week, so I'll take care of that later.  See you on Monday.

Continue reading "Taking time off" »

A lawyer

Eighty percent of criminal defendants are indigent, and wind up being represented by either public defenders or appointed counsel.  The other twenty percent of criminal defendants pay for their attorneys.  As one observer astutely noted, "The man who said money can't buy happiness never sat in a courtroom."

Glib, but is it true?  Yes, it's not uncommon for lawyers in the first two groups to be told by their respective clients, "I want a real lawyer," and attorneys who don't take assignments often look down on those who do, and view public defenders with equal skepticism.  But do private attorneys get better results than their counterparts?

Yes.  Maybe.  It depends.

Continue reading "A lawyer" »

Punches and peremptories

Eugene Warner's family probably has a pretty good medical malpractice case against an urgent care facility.  Warner went there the night of January 2, 2014, complaining of headaches and vomiting.  They examined him, gave him two shots, and sent him home.  The next day, Warner became unresponsive, and was taken to the hospital.  They performed emergency surgery, to no avail; he died from a subdural hematoma, or, in layman's terms, bleeding in the brain.

The hematoma was caused by a single punch thrown by Carl Hampton in a bar fight a couple days before.  That resulted in Warner's conviction of felony murder.  In State v. Hampton, the 8th District engages in spirited discussion of the "one-punch" cases, and ultimately finds the evidence sufficient to convict.

That's the bad news for Hampton.  The good news is that the whole case gets reversed on a Batson challenge.

Continue reading "Punches and peremptories" »

What's Up in the 8th

There's a good discussion to be had about what constitutes "substantially impaired" for purposes of the rape and sexual battery statutes.  The only Supreme Court decision on the subject is State v. Zeh, which was decided back in 1987, and that dealt with mental retardation.  The much more common situation deals with intoxication.  And that's the discussion the 8th District had last week in State v. Springs.

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

Let's Make a Deal

Hollywood loves to resurrect old franchises - next year we will be treated to Fast & Furious 8, causing some of us to wonder if there is indeed a loving God - but if they brought back Perry Mason, it's unlikely that there'd be many court scenes.  Weekly episodes would instead feature him hammering out a plea bargain with the prosecutor.  

Continue reading "Let's Make a Deal" »

Case Update

Can you claim ineffective assistance of counsel when you're not entitled to one?  The 5th District addresses that weird question in State v. Dunlap.  Dunlap filed a motion in 2014 to vacate his 2012 plea to domestic violence.  When that got denied, he appealed, one of his arguments being that the lawyer who handled the motion to vacate rendered ineffective assistance by failing to call his trial counsel as a witness during the hearing on the motion to vacate.  But while a defendant is entitled to appointed counsel for a pre-sentence motion to vacate a plea, the courts have held that a defendant isn't entitled to appointed counsel for a post-sentence motion. 

From this, the Dunlap court decides that a post-sentence motion isn't a "critical stage" of the proceedings, because relief is "allowable only in extraordinary cases."  Since it's not a critical stage, counsel isn't required, and "we therefore will not recognize a claimed error based on ineffective assistance regarding counsel's performance in presenting said motion to the trial court."

That doesn't sound right, but in fact there are a number of cases holding that you don't have the right to the effective assistance of counsel where you don't have a right to appointed counsel.  That usually arises in cases involving discretionary appeals.  It's applicability in Ohio is questionable, since counsel is always assigned to a discretionary appeal in the Supreme Court if the defendant's indigent.  And note that the Dunlap opinion doesn't indicate whether counsel was retained or appointed, and whether that should matter.  

Continue reading "Case Update" »

What's Up in the 8th

Either judges up here are getting tougher, criminals are getting worse, or some combination thereof:  229 years of sentences were meted out.  And that was in just two cases.

The defendant in State v. Daniel was the recipient of the 144-to-life sentence for his conviction of multiple counts of rape, aggravated robbery, and kidnapping.  Daniel's first claim is that the judge should have found him incompetent to stand trial, and Daniel certainly went the extra mile in trying to demonstrate that he was truly unhinged:  he feigned suicide after the first day of trial, and on the second "spread feces on himself and his holding cell." 

His claim was undercut by jail calls in which he asked his girlfriend to look up symptoms of schizophrenia.  If this were all, one might argue he was simply attempting to gather evidence for a self-diagnosis.  Alas, the calls included discussions of jury selection, the evidence, potential witnesses, an alibi, and circumstantial evidence, subjects not normally addressed by people who need a time-out at the Rubber Ramada.

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

Grand jury reform

It's reform time again for the criminal justice system.  Up here in Cuyahoga County, we've been looking into bail reform, and just the other day the court announced that the steering committee which had been formed several months ago to look into the matter had appointed the heads of the four committees who'd be looking into the matter, and the steering committee announced that the committees would begin looking into the matter in earnest in a month or so. 

But we won't have to wait any longer for a report on grand jury reform.  That report was released last month.  Ten is always a good number for these kinds of things - it worked for Moses and for the Founders - so the report contains ten recommendations on how to fix what's wrong with the Ohio grand jury system.  Let's see what they came up with.

Continue reading "Grand jury reform" »

View more posts in the Archive »


Recent Entries

  • August 22, 2016
    Taking time off
    Time for a vacay
  • August 19, 2016
    A lawyer
    Eighty percent of criminal defendants are indigent, and wind up being represented by either public defenders or appointed counsel. The other twenty percent of criminal defendants pay for their attorneys. As one observer astutely noted, "The man who said money...
  • August 16, 2016
    Punches and peremptories
    The 8th finds a single punch can cause serious physical harm, but finds a Batson error
  • August 15, 2016
    What's Up in the 8th
    Substantial impairment, desperation, and deportation
  • August 12, 2016
    Let's Make a Deal
    Why don't cases get tried anymore?
  • August 11, 2016
    Case Update
    A look at some recent decisions from the Ohio courts of appeals
  • August 9, 2016
    What's Up in the 8th
    Cell phone towers and motions to vacate
  • August 8, 2016
    Grand jury reform
    A look at the recent report and recommendations on reforming the grand jury system
  • August 5, 2016
    What does Mole mean?
    Examining Mole's holding on the role of the Ohio Constitution
  • August 4, 2016
    I lied
    Okay, I'll get to the post about State v. Mole. Soon.