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 »


What's Up in the 8th

We Clevelanders apparently spend our time shooting people or driving drunk.  Last week was the week for drunk driving; of the nine decisions, one-third involved drunk drivers.  All teach simple lessons, most of them factual, rather than legal, and most of which we've at least suspected to be true, if not known for certain.  Like, for example, your chances of getting arrested for drunk driving increase exponentially if your eyes are glassy, your speech is slurred, you reek of alcohol, and you have difficulty standing.  They increase logarithmically if the best you can manage on the one-leg stand is three seconds, followed by you almost falling down while muttering, "Ah, fuck it." 

Oh, and "don't swear at the cops" is a life lesson provided by another case.

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Case Update

I'm always been amused by the argument that the United States Supreme Court has become politicized.  The Constitution, which specifically provides for the Supreme Court, is a political document.  The process by which justices are appointed to serve on the Supreme Court requires the action of the chief executive and one of the houses of Congress, both highly political entities.  Mourning the politicization of the Court is akin to mourning the debasement of our political discourse; as those knowledgeable about the 1800 presidential campaign could attest, when was it otherwise?  Dred Scott, Brown v. Bd. of Education, Roe v. Wade, and Obergfell v. Hodges were not merely "legal" decisions; they dramatically changed the political landscape.

But still...  So we come to last week's third presidential debate.  Donald Trump, keenly aware that the only reason many Republicans can bring themselves to vote for him is their horror at the prospect of Hillary Clinton appointing justices who will rule the court for the next quarter century, promises to appoint justices of "a conservative bent." 

In this, at least, he is almost certainly as good as his word.  Having shown little interest in briefings, debate preparation, and more rigorous intellectual pursuits, it seems likely that he would be only too happy to stay out of the weeds of judicial nominations and instead simply put his imprimatur on any nominee offered up by the Family Research Council and the Federalist Society.

Hillary Clinton, on the other hand, tells us that "the Supreme court should represent all of us."  Well, no, it shouldn't.  The Supreme Court is not a representative body; to the contrary, it serves us best when it is not.  The Constitution, in its concept of limited government and fundamental rights, is an anti-majoritarian document.  It falls to the least democratic of the three branches to preserve that concept.  A Court that represented at least most of us gave us Dred Scott and Plessy v. Ferguson, and had it followed the polls, Brown, Roe, and Obergfell might well have come out differently.


We now return to our regular programming.

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The right to counsel

It wasn't the worst case of ineffective assistance I'd ever seen, but it was a close second.

The worst was about five years ago.  The defendant was charged with gross sexual imposition and kidnapping, and the evidence was pretty shaky.  He got convicted, though, and was sentenced on the kidnapping charge; with the sexual motivation specification and the victim being under 13, that meant a sentence of 10 to life.

I got the appeal.  I won't go into the gory details about the ineffective assistance claim I raised, but during the oral argument, one of the judges said, "I'm sure none of us would want a lawyer like that representing us."  As I've said before, you can't tell what's going to happen from oral argument, except when you can.  The day after the argument, the judge granted a petition for post-conviction relief I'd also filed.  The defendant pled out to abduction, and was sentenced to time served.

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What's Up in the 8th

The 8th District's decisions last week in State v. Shropshire and State v. Simes provide further proof that Clevelanders are a tough crowd.  Simes comes home to find her boyfriend in a dalliance with another woman, things get understandably heated, with the upshot being Simes stabbing said boyfriend in the side.  Despite losing a quart of blood, he has the presence of mind to tell her to toss the knife in a neighbor's bush, and then not cooperate with the police when they arrive.

Simes eventually leads the police to the knife, and urges the affirmative defense of duress, pointing to the fact that Boyfriend beats her frequently.  That requires proof of an immediate threat of death or great bodily harm, though, and the panel decides that Boyfriend didn't pose a threat to anyone while he was bleeding all over the living room floor.

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Case Update

After Miguel Pena-Rodriguez was convicted of sexually assaulting two girls, one of the jurors told his lawyer that another juror had made numerous racial comments during deliberations, telling the jury that Pena-Rodriguez must be guilty "because he's Mexican, and Mexican men take whatever they want."  Last week, SCOTUS held oral argument to decide whether there was anything anybody could do about that.

Normally, the aliunde rule requires that if you're going to impeach the jury's verdict on account of jury bias, you have to provide outside evidence of it before you can get into the testimony of other jurors about it.  The issue before the Court was whether the 6th Amendment right to an impartial jury trumped this.

There are probably enough votes to provide a win for Pena-Rodriguez - only Alito seemed staunchly opposed to his position - but the devil's in the details.  Would this be limited only to claims of racial bias?  For example, if a juror had made a comment in a stock swindling case that the Jewish defendant was more likely to have committed the crime "because they'll do anything for money," would that be an exception to the aliunde rule, too?  How would a court determine whether the juror's comment had actually affected the verdict?  Still, a number of states do allow a verdict to be impeached in this manner, and it seems to work.

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Argument analysis: Buck v. Davis

If you want to know why the law's screwed up, read the first pages of the oral argument the Supreme Court held on Wednesday in Buck v. Davis.  

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What's up in the 8th

Good news and bad news for criminal defendants in the 8th District last week.  Okay, I lied; there is no good news.  The State won every case.  Still, there's one en banc decision down and one to go, we learn a new concept, and some good, albeit ultimately unsuccessful, work in an appeal.  What more could you ask for?

Well, a few more wins for defendants wouldn't hurt.

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Case Update

It's the first Monday in October, and a palpable sense of excitement is in the air here at the Briefcase with the knowledge that in just a few hours, oral argument begins for the next term of SCOTUS.

Well, no.  Today we'll see more orders from the Court's "long conference" on September 26, where they add additional cases to the docket.  Oral arguments actually kick off tomorrow with five cases in the next two days, four of them criminal.  Verily, my cup runneth over, and surely I will have material for blog posts for the rest of my days.  Better than goodness and mercy traipsing around after me, I suppose.

The most interesting of the four is Buck v. Davis.  In Texas, the defendant's "future dangerousness" is a prerequisite for imposing a death sentence, and usually the central issue of the sentencing phase.  An expert testified that the defendant met that criterion by virtue of the fact that he was black.  That's wrong on any number of levels, but there's an interesting twist to the case:  the expert was called by the defense.  What was going on there I have no idea, but that's the basis for Texas' opposition to Buck's habeas petition:  it's agreed to vacate the other death sentences where the expert testified to the same effect, but not this one.  I'll have a post on the argument later this week.

Nothing from the Ohio Supreme Court, so let's take a look at the courts of appeals... 

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Recent Entries

  • October 25, 2016
    What's Up in the 8th
    Drunk drivers, rapists, and shooters
  • October 24, 2016
    Case Update
    I'm always been amused by the argument that the United States Supreme Court has become politicized. The Constitution, which specifically provides for the Supreme Court, is a political document. The process by which justices are appointed to serve on the...
  • October 20, 2016
    The right to counsel
    Musings on the effective assistance of counsel
  • October 18, 2016
    What's Up in the 8th
    Inconsistent verdicts and presumptions of regularity
  • October 17, 2016
    Case Update
    Proof of juror bias, victim impact testimony, what's required for a child porn conviction, and a few appellate cases.
  • October 7, 2016
    Argument analysis: Buck v. Davis
    SCOTUS tackles whether a pyschiatrist should have been allowed to testify that a defendant charged with capital murder would commit crimes in the future because he was black
  • October 4, 2016
    What's up in the 8th
    Don't know what "sentencing entrapment" is? You will after reading this.
  • October 3, 2016
    Case Update
    SCOTUS starts up tomorrow, and appellate cases on juror misconduct and drunk driving
  • September 30, 2016
    Hints on pre-indictment delay
    Does the result in State v. Richardson tell us anything about the likely outcome on the Supreme Court's remand in State v. Jones?
  • September 27, 2016
    8th District Roundup
    There's a fight coming on appellate review of sentencing