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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Blogging 101

Every year, the OACDL has a Superstars Seminar, where they bring in some top lawyers from all over the country to speak on various subjects.  This year, I was invited to give a talk.  Did they want me to share my keen insights on sentencing issues?  Give the audience my tips on writing a winning appeals brief, or how to navigate the rocky shoals of an oral argument?

Not so much.  They wanted me to talk about blogging.

So, that's what I'll do here.

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Mistakes of law, rights and remedies

You're driving down the road.  A cop stops you because one of your brake lights isn't working.  You tell him you thought the law only required you to have one working brake light.  It requires two.  How far do you think your argument's going to go?

You're driving down the road.  A cop stops you because one of your brake lights isn't working.  It turns out that the law only requires you to have one working brake light.  Good stop or bad?

SCOTUS kicked off its CCXXVth season on Monday with oral argument in Heien v. North Carolina, on that precise issue.  And from the looks of it, ignorance of the law is not two sides of the same coin.

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What's Up in the 8th

I've always depended upon the kindness of strangers, and they come through in State v. Woodland.  Woodland pleads to murder, and in apparent recognition of the fact that I've got to read all this stuff, appellate counsel's only assignment of error is that the judge imposed costs in the journal entry while he waived them at the sentencing, the State concedes the error, and the panel disposes of the case in a breezy one-page opinion.  My thanks to all.

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Case Update

The big news as SCOTUS opened its term last week is not what the Court did, but what it didn't do.  Faced with seven, count 'em, seven petitions for certiorari from circuit court decisions striking down state bans on gay marriage, the Court denied them all.  There were four dissenters from last year's decision in Windsor v. US, which declared unconstitutional the Federal Defense of Marriage Act, and it only takes the votes of four justices to grant cert, so someone read the writing on the wall.  The upshot is that by the end of the year, two-thirds of the people in this country will live in states which recognize same-sex marriage.

One of the most eagerly anticipated events in recent memory is undoubtedly my post on the oral argument in Heien v. North Carolina, which raised the issue of whether a mistake of law by a police officer renders a search invalid, and which I promised you last week.  I actually wrote it, but then screwed up on the posting.  Once I get the hang of this blogging thing, that won't happen anymore.  I hope.  Speaking of which, I'll have a post on the seminar on blogging that I did for the OACDL last week.  That'll be on Thursday.

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Road Warrior

road warrior.pngOr maybe the appropriate allusion would be to Ricky Nelson's Travelin' Man....

I got a new car on July 23.  I've put 5,000 miles on it since then.  My itinerary this week and next is one reason why:

  • Yesterday:  to Youngstown to visit three inmates at the correctional center the Feds have there
  • Today:  to Richland for an oral argument in a case in the 5th District
  • Tomorrow:  To Columbus to give a seminar session on blogging; will stop in at Richland Correctional to see a client there, who I would have seen this morning if I hadn't screwed up the fax to the institution
  • Next Tuesday:  To Columbus again, this time for an oral argument in the 10th District.  Will stop in at the Correctional Reception Center after that to see another client
  • Next Wednesday:  Back to Youngstown, and then to Trumbull Correctional to see another client.  In either order.

This is my roundabout way of telling you that I'm not going to have the post on the oral argument in the Supreme Court case on Monday about whether a police officer's mistake of law voids a search.  Today, anyway.  I might have it tomorrow, or I might talk about the seminar on blogging or how I'd change the criminal law if they put me in charge of doing that, a scenario which I frequently entertain, but which admittedly seems unlikely.  If so, I'll do the post on the Supreme Court case next week.

Continue reading "Road Warrior" »

Wine and trial strategy

Your client was involved in a bar fight, and he came out of it with a charge of felonious assault.  His defense is simple:  he didn't do it.  Unfortunately, the evidence of that is more, shall we say, ambiguous than he believes it to be.  But there's some good evidence of provocation, and so the question is whether you should ask for a charge-down to aggravated assault.  You mull it over, talk to him, and decide that you're going to go all or nothing.  The jury can either convict him of felonious assault, or acquit him; there's no possibility of a compromise verdict.

Well, that's not going to happen after last week's decision by the Ohio Supreme Court in State v. Wine.  

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What's Up in the 8th

It's not unusual for a decision to provide both good news and bad news for a defendant:  one conviction is upheld, another reversed, the convictions are affirmed, but the sentences are vacated, that sort of thing.  Dana Strong, though, gets good news and bad news in two separate cases.  

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

SCOTUS Update

The Supreme Court officially begins its term today, but the term unofficially began a week ago Friday with "the long conference."  Yes, I know, it sounds like something out of The Last of the Mohicans (I'm trying to suppress the mental image of the justices sitting on the ground, passing a peace pipe around while Scalia mumbles something about "palefaces with talking sticks").  It probably is a long conference, because it's the session where the Group of Nine gets together to decide what to do with the petitions for certiorari which have piled up while they've been getting bitchin' tans by basking in the summer sun.  Plenty of work to do, and sure enough, the Court added eleven new cases to its docket.

Including Ohio v. Clark, which could prove very interesting.

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Recent Entries

  • October 16, 2014
    Blogging 101
    Ever wanted to do a blog? Some thoughts...
  • October 15, 2014
    Mistakes of law, rights and remedies
    SCOTUS takes on whether a cop's mistake of law voids a search
  • October 14, 2014
    What's Up in the 8th
    I've always depended upon the kindness of strangers, and they come through in State v. Woodland. Woodland pleads to murder, and in apparent recognition of the fact that I've got to read all this stuff, appellate counsel's only assignment of...
  • October 13, 2014
    Case Update
    The Intoxilyzer 8000 goes bye-bye, the absurdities of forfeiture law, and what judges shouldn't say before sentencing
  • October 9, 2014
    Road Warrior
    Glad I got that new car

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