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 »


Birchfield and Strieff

bear.jpgThis is going to be my only blog post of the week.  I've got a brief due in the court of appeals on Friday and three in the Ohio Supreme Court in the next two weeks, and I'm going to be in trial most of this week.  Plus, my work on a cure for cancer is taking up a lot of my time, as is my marathon training, given that I've had to add knowing how to ward off bear attacks to my skill set for the latter. 

Marathon training, that's a good one.  I get tired driving twenty-six miles.

Anyway, I wanted to touch on a couple things today:  the Supreme Court's decision last week in Birchfield v. North Dakota, and the potential impact of that and Utah v. Strieff, a case decided last Monday, in Ohio.

Continue reading "Birchfield and Strieff" »

Thursday Roundup

Empathy.  Back in 1996, Justice David Souter authored the opinion in Whren v. United States, upholding the power of a police officer to make a traffic stop as long as the officer observed a violation, even if he had an ulterior motive for the stop.  And so we have the police stopping cars for all sorts of bullshit violations - failing to signal before changing lanes is a favorite - so they can see if they can come up with something that will allow them to search the car or the driver or passengers.  Of course, neither Souter nor the other justices who joined the opinion had to worry about that.

A few years ago, Justice Samuel Alito authored the opinion in Kentucky v. King, upholding the authority of the police to conduct the "knock and talk," knocking on a tenant's door, and then bursting in if they heard something they believed was the tenants trying to dispose of drugs.  Of course, neither Alito nor the other justices lived in the projects, where that routine had become commonplace.

On the other hand, probably the key moment in the oral argument in United States v. Jones, the case in which the Supreme Court held that a warrant was required to put a GPS on a car, was when Chief Justice Roberts elicited an affirmative answer to the government to this question:

You think there would also not be a search if you put a GPS device on all of our cars, monitored our movements for a month?

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Analysis: Utah v. Strieff

The cops stop you for no reason.  They run your ID, and find that you've got an outstanding warrant because you didn't pay the fine for a speeding violation.  They arrest you, and find drugs.  Can you say "fruit of the poisonous tree"?  Sure you can:  the discovery of the evidence derives from the illegal stop, so it gets thrown out.

Not after Monday's Supreme Court decision in Utah v. Streiff.  

Continue reading "Analysis: Utah v. Strieff" »

What's Up in the 8th

There's a stat floating around that the State wins something like 85% of all appeals.  There's a reason for that:  defendants have an attorney assigned to handle their appeal, regardless of how crappy their case is.  Case in point is State v. Williams, where the only argument I could muster was manifest weight of the evidence, a contention hopelessly compromised by the discovery of the robbery victim's cell phone in my client's jacket.  Or State v. Ladson, where the best argument the lawyer - not me, fortunately -- could come up with is that while the judge told the defendant at the plea hearing that he had the right to cross-examine the State's witnesses, the rule requires telling the defendant that he has the right to confront the State's witnesses.  Those are some God-awful appeals.

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Monday Ruminations

Why no case update?  Because that requires courts to issue decisions on something I want to write about.  The biggest decision from SCOTUS last week involved fee awards in copyright cases.  A couple of weeks ago, the Court did issue an opinion in a criminal case, Puerto Rico v. Sanchez Valle.  One limitation on the Double Jeopardy Clause is the "dual sovereign" theory, which permits both the state and federal government to prosecute a person for the same crime (although, of course, it has to be a violation of both state and federal law), on the theory that the two are separate sovereigns.  In Valle, the Court held that Puerto Rico and the US weren't dual sovereigns for that purpose.

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Thursday Roundup

Getting into SCOTUS.  So there you are, sitting in your office, thinking, "I've got to get the Supreme Court to accept this petition for certiorari.  I know!  I'll check Bensing's blog for tips on how to do that!"

Okay, I realize that for the vast majority of my unnumbered legions of readers, how to get a case into the United States Supreme Court is a question about as pressing as how to get into the porn business.  (I'll have a post on that next week.)  But in the event you're facing that task, here's an article which gives you pointers on how to make it more likely that four justices, the required number for acceptance, will agree to hear your case. 

According to the authors, two enterprising USC students who waded through 93,000 cert petitions filed in the last fifteen years, the best way of ensuring that the Court takes your case is to kidnap Jeffrey Fisher and pretend you're him.

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What's Up in the 8th

I've argued before that the Supreme Court's recent decision in State v. Marcum heralds a new approach in sentencing:  an appellate court can reverse a sentence if it finds that the record clearly and convincingly doesn't support it.  That's been the standard for appeals of consecutive sentences, but Marcum involved non-consecutive sentences.  That contrasts with the 8th District's cases, which until recently have consistently held that as long as the sentence falls within the statutory range, it's a "pure exercise of discretion" and is "unreviewable."  It's a bit muddled; while the panels in State v. Carrion and State v. Gay have looked at the record, the quote above is from State v. Cole, which was decided the same day as the other two.

Does the 8th's decision last week in State v. Anderson clear that up?

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

Case Update

By coincidence, the Supreme Court issued an opinion on whether a judge need recuse himself against the backdrop of Donald Trump's unseemly rant against the "Mexican" judge hearing the lawsuit against Trump University.  Williams v. Pennsylvania, unfortunately, will not provide much guidance for the parties in Trump's case.

Ronald Castille was formerly the District Attorney for Philadelphia, and in that capacity made the decision to seek the death penalty against Terrance Williams thirty years ago.  The quest was successful, but those who follow capital cases will be unsurprised to learn that Williams is still alive, and his latest effort to avoid the gurney found him pressing the appeal of a post-conviction relief petition in the Pennsylvania Supreme Court.

Where Ronald Castille now serves as the chief justice.

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Recent Entries

  • June 27, 2016
    Birchfield and Strieff
    What do the latest SCOTUS decisions mean for Ohio law?
  • June 23, 2016
    Thursday Roundup
    Sotomayor's dissent in Strieff, Georgia executions, and second thoughts on the Brock Turner case
  • June 22, 2016
    Analysis: Utah v. Strieff
    The exclusionary rule takes another beating
  • June 21, 2016
    What's Up in the 8th
    Things that are bad, things that are weird, and things that are good to know
  • June 20, 2016
    Monday Ruminations
    Dual sovereigns, the futility of state habeas, collateral consequences, and the end of the drought
  • June 16, 2016
    Thursday Roundup
    How to get into the Supreme Court, the General Assembly does something sensible, and the road not taken
  • June 14, 2016
    What's Up in the 8th
    A few cases on how appellate review works, or doesn't
  • June 13, 2016
    Case Update
    One from SCOTUS, two from the Ohio Supreme Court, and three from the courts of appeals
  • June 9, 2016
    Speedy sentencing and forfeiting the game
    SCOTUS decides that speedy trial doesn't apply to sentencing, and the Ohio Supreme Court rules on a case without argument from one side
  • June 7, 2016
    Rape culture
    A story about some women