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 »


A wink and a nod

You're trying to work out a deal on the rape case you're handling.  You've got a final pretrial a week before trial, where you and the prosecutor go in to talk to the judge.  You explain that your client basically wants to know what kind of sentence he's looking at.  The three of you start talking about a possible sentencing range of three to five, maybe three to six years.  The judge either said this range could be fair or would be fair; you're not sure which, but it's pretty much the same, and besides, she told you you could take that discussion back to your client.

Which you did.  And your client pled.

So I'm guessing you're pretty pissed off when the judge gives your guy seven years.

Continue reading "A wink and a nod" »

What's Up in the 8th

There must be something in the water up here:  of the eight criminal cases decided by the 8th District last week, five involved sex offenses.  The only "win" for defendants comes in State v. Locke, where Locke, a 42-year-old policeman, has sex with a 15-year-old on numerous occasions, and "used his cellphone to record his crimes," marking the moment that the selfie craze officially got out of hand.  

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

Case Update

The Pew Research Center takes a poll at the end of each Supreme Court term asking respondents whether they have a favorable or unfavorable view of the Court.  The last tally, a month ago, was 48-43 favorable.  That's the first time there was less than a double-digit margin; nine years ago, the result was 63-27 favorable.

While being in positive territory makes the Court unique among the three branches - the number of people who have a favorable view of Congress is less than the number who believe Elvis is still alive - several commentators and politicians have taken aim at what they believe is the biggest problem with the Court:  lifetime appointments.  There's some merit to that, especially given the increase in longevity over the two-plus centuries since the Constitution was written.  The first ten justices served an average of eight and a half years; the average of the last ten was twenty-one and half. 

There has been no shortage of proposals to remedy this, such as that advanced by Republican presidential candidate Ted Cruz to have a justice face a retention election after eight years on the bench.  Others have advocated limiting justices to a single term of somewhere around twelve years.  That would take a constitutional amendment, though, and good luck with that.  So a group called Fix the Court has come up with another alternative:  each justice, during the nomination process, would promise to serve no more than eighteen years.

I wonder if not resigning at the end of that time would be an impeachable offense?

Continue reading "Case Update" »

The Lizard King

So I'm talking to my friend Paul the other day, and he tells me his son Scott, Thumbnail image for repitile-trial-strategy-jury-consultant.jpg
who's an attorney, has an interview with a firm in Virginia.  "I've got a lawyer friend in Maryland," he says, "and she told me to make sure Scott brushes up on the reptile theory of litigation, the firm he's interviewing with is big on that."


Continue reading "The Lizard King" »

What's Up in the 8th

Sometimes the court will bail you out.  Sometimes it won't.  Those different approaches led to very different results in two cases last week.

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

Case Update

I'll be here all week, be sure to tip your waitstaff.  So what do we do here when SCOTUS isn't in session?  Well, after we get done talking about what they did do and what they might do in the future, we trot out things like the podcast by Boston University law professor Jay Wexler, who has spent the last decade counting out how many times each justice elicits laughter during oral argument.  How do we know when that happens?  Because the transcript of the oral argument will say [laughter].  For example, Kennedy brought down the house during the argument in Yates v. United States, a case concerning a fishing boat captain's conviction under the Sarbanes-Oxley Act for tossing back illegally-caught grouper, by riposting, "Perhaps Congress should have called this the Sarbanes Oxley-Grouper Act."

Hey, you had to be there.

Scalia was the biggest cut-up, followed by Breyer some ways back.  Ginsburg racked up only two, which, according to the prof, is two more than she usually gets.  Given its current broadcasting woes, look for NBC to greenlight the pilot for a series.  "Real Justices of the Supreme Court," maybe.

Continue reading "Case Update" »

Camera shy

In this age of selfies, there's one group which is increasingly reluctant to be photographed:  police officers, especially those engaged in less than professional conduct while dealing with miscreants.  One of the more recent was Officer Michael Slager of North Charleston, South Carolina, shooting an unarmed black man in the back as he was fleeing after a traffic stop. 

Or non-miscreants; one of my favorites is this video, showing New York City police officer Patrick Pogan decking a bicycle rider during the Critical Mass ride in 2008.  

The response of the police to the videotaping of their misdeeds is to shoot -- er, arrest -- the messenger.  For example, Anthony Graber's helmet camera captured his stop for speeding by a plainclothes detective in an unmarked car:

He posted the video to Youtube.  A couple days later the Maryland police showed up at his door with a search warrant, and seized four computers, two laptops, and his camera.  He was charged with "interception of a wire communication," a felony punishable by up to 5 years in prison, based on a Maryland law which prohibits taping a conversation unless both parties agree.

The use of "eavesdropping" laws, at least in those states which require the consent of both parties to the taping, is the common method of stifling efforts to videotape police officers, but it's not a particularly effective one.  Those laws prohibit taping where one has a "reasonable expectation of privacy," and it's hard to make the case that a police officer engaged in a confrontation with a citizen on a public street has that expectation.  That's what led to the judge tossing the charges against Graber, and other courts have been similarly unreceptive:  the Illinois Supreme Court threw out that state's law on First Amendment grounds, and the First, Seventh, Ninth, and Eleventh U.S. Circuit courts have come to the same conclusion.

Cops have gotten smarter about avoiding the cameras, but not smart enough.  Here's the video of a recent raid by the Santa Ana Police Department on a medical marijuana dispensary in May:

The first thing the cops did after they had everyone leave the store was to pull out the video cameras and the DVD drive, blithely unaware of the backup video system that the storeowner had installed, which captured them pulling out the video cameras and the DVD drive.  They also caught the police dissing an amputee, playing darts, eating food, and otherwise acting as if they were in a clubhouse rather than engaged in a raid.

The local police chief indicated after the release of the video that the department is conducting an "internal investigation." 

Not that cameras will necessarily dissuade the police from engaging in misconduct.  Pogan, the officer who shoulder-blocked a bike rider into the curb, lied about what happened -- he claimed in his report, before the video came out, that the bike rider ran into him -- and was convicted of a felony.  The judge simply released him, spurning not only the prosecution's request for prison time, but the defense request for community service as a sentence.

Continue reading "Camera shy" »

Does Jones create new law?

Back in November, in State v. Mack, the 8th District threw out a case because of pre-indictment delay.  The State appealed to the Ohio Supreme Court, and that court's still deciding whether to take the case.  My personal feeling was that I hoped the court would take it, because the law on the subject couldn't get any worse for defendants.

I think we're going to find out.

If Mack doesn't get in, a likely candidate is the case that came down a couple of weeks ago, State v. Jones.  In my earlier discussion of the decision, I'd said it was "the most defendant-friendly Ohio decision on pre-indictment delay."  The State certainly thinks so.  It's recently filed a motion seeking to have the case certified to the Supreme Court; according to its rather apocalyptic rendering, Jones is in conflict "with prior cases in eleven other appellate districts and prior cases from this Court." 

So is Jones that much of an outlier?

Continue reading "Does Jones create new law?" »

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Recent Entries

  • August 26, 2015
    A wink and a nod
    You're trying to work out a deal on the rape case you're handling. You've got a final pretrial a week before trial, where you and the prosecutor go in to talk to the judge. You explain that your client basically...
  • August 25, 2015
    What's Up in the 8th
    Sex cases galore, and no good news for defendants
  • August 24, 2015
    Case Update
    Looking at tenure of Supreme Court justices, and appellate cases on judicial release and allied offenses
  • August 19, 2015
    The Lizard King
    Fear and loathing in the courtroom
  • August 18, 2015
    What's Up in the 8th
    Cases on consecutive sentencing and allied offenses
  • August 17, 2015
    Case Update
    Bon mots in SCOTUS, and why appeals get dismissed
  • August 13, 2015
    Camera shy
    In this age of selfies, there's one group which is increasingly reluctant to be photographed: police officers, especially those engaged in less than professional conduct while dealing with miscreants. One of the more recent was Officer Michael Slager of North...
  • August 12, 2015
    Does Jones create new law?
    Does the 8th's decision in State v. Jones create a new standard for gauging pre-indictment delay?
  • August 11, 2015
    What's Up in the 8th
    Another win for defendants on pre-indictment delay, but that's pretty much the extent of the good new
  • August 10, 2015
    Case Update
    The question which should've been asked in the GOP debate, the time limit for PCR petitions is increased, and appellate decisions on expungement and abuse of discretion