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 »


"Mandatory probation" and Blakely/Apprendi

Nautica Freeman needs some new friends.  She accompanied three of them, all juveniles, to a house party to confront another girl, who was "having sex with [A.O's] boyfriend.  The four went into a bedroom and found the girl in flagrante delicto with the aforementioned boyfriend, whereupon A.O. delivered punched her out.

Freeman was charged with first degree burglary and assault, but the good news is that the State dropped it all the way down to 4th degree burglary, and dismissed the assault.  That was the extent of the good news:  the judge shipped her for twelve months.

The 8th District reversed, finding that Freeman was eligible for the "mandatory probation" feature of RC 2929.13(B)(1)(a).  And that merits a closer look.

Continue reading ""Mandatory probation" and Blakely/Apprendi" »

Case Update: Foster v. Chatman

Anybody who's been around a criminal courtroom for more than three weeks knows that defense lawyers want as many blacks on the jury as they can get, and the prosecutor wants as few.  For a very simple reason:  blacks tend to be more distrustful of authority, and are less likely to believe police officers.  Figure that.

I wonder how, and whether, that's going to change after the Supreme Court's decision on Monday in Foster v. Chatman.  

Continue reading "Case Update: Foster v. Chatman" »

What's Up in the 8th

You don't see too many 25-plus year prison sentences for drug trafficking in Federal court anymore, but Davonne Keith manages to get 27, in state court, no less.  Keith loses the suppression issue, and just about everything else, but it all comes back because the judge never asked Keith if he had anything to say before sentencing him.  That's allocution, and it's a constitutional right:  the judge has to ask the defendant.

So what do you figure is going to happen when Davonne shows up for the secquel, Sentencing II:  Now We Mean Business?  I'll take the action of anybody who wants to go with the under of 27.  

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

Case Update: State v. Arnold

State v. Arnold looked a lot better going into the Supreme Court than it did going out.

According to Arnold's memorandum in support of jurisdiction, Arnold was on trial for domestic violence against his father, Lester.  When the prosecutor called Lester to the stand, though, he took the 5th Amendment.  Not for long; the prosecutor told him he'd have to answer the questions, and the judge told him he'd be held in contempt if he didn't.  Lester then abandoned his refuge in the Constitution and instead sought sanctuary in the favored plot line of soap operas, amnesia.  The prosecutor had him read into the record the statement he'd made to the police, and it was admitted as substantive evidence.

Now, I'm a big believer in the theory that if it sounds wrong, it probably is, and all that struck me as wrong on several levels.

So how'd the Supreme Court uphold Arnold's conviction by a 4-3 vote a couple weeks back?

Continue reading "Case Update: State v. Arnold" »

They blinded me with science

Well, you can say this much for the gang at the St. Paul crime lab:  they weren't corrupt.  They were just breathtakingly incompetent.

An assistant public defender was one of the first to discover that.  She was representing a defendant charged with possessing drugs, and being willing to go the extra mile, set up a meeting with the analyst who'd tested the drugs.  She found that the lab was run by a police sergeant without any scientific background, instruments weren't cleaned between testing, and the "analysts" often used Wikipedia as a technical reference.

Continue reading "They blinded me with science" »

Drugs, guns, and rock'n'roll

Drugs and guns.  There are a lot of people - and I'm including lawyers, prosecutors, and judges, the people responsible for hashing out these things - who believe that if the police have a right to stop you, they have a right to frisk you.  Not so.  The cop has the right to stop you if he has a reasonable suspicion that you're engaged in criminal activity.  To justify a frisk, though, he has to show that he had a reasonable suspicion that you were armed and dangerous.

That distinction is all but eliminated in drug cases. 

It is well recognized that the need for a protective pat-down becomes more urgent where drugs are involved.  The very nexus between drugs and guns can create a reasonable suspicion of danger to the officer.

The 8th District said that last week in State v. BlevinsYou can find countless quotes to the same effect in opinions from courts of just about every level, state and Federal.

Apparently, the guy who first came up with the observation watched one too many episodes of The Wire.  Because that's not the way it is in real life.

Continue reading "Drugs, guns, and rock'n'roll" »

What's Up in the 8th

I greeted the passage of Ohio's Castle Doctrine in 2008 with some skepticism.  The doctrine creates a presumption that you've acted in self-defense if you use deadly force to repel an intruder in your home.  As I wrote at the time, whether this was worth the fuss was questionable:  "It's not as though the nightly news regularly bombards us with scenes of homeowners being perp-walked out of their houses for shooting a burglar."  

Little has occurred since to dissuade me from that belief.  

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

Another blogiversary

This what I wrote when I celebrated the 5th anniversary of this blog:

I've had a good time here.  I doubt there'll be a 10th birthday, and, who knows, there may not even be a 6th.  We'll take it a year at a time.  I've enjoyed this, and thanks for being around to help me do that.

That was five years ago.

Guess I'm still here, huh?

Now I have to figure out why.

Continue reading "Another blogiversary" »

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