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 »


Self-incrimination and sentencing

It's been a bitterly contested trial, and you're not happy with the jury's verdict.  But your unhappiness pales in comparison to your client's, and now it's time for sentencing.  He asks you what he should say.

Before you answer that question, you might want to take a look at the 8th District's decision in State v. Hodges.

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What's Up in the 8th

Last week's deluge of 8th District cases - twenty-five of them, fifteen criminal - ran the gamut from the bizarre to, well, the bizarre.  There was State v. Hutchings, where Hutchings sought to modify his community control sanctions to eliminate the drug-testing requirement because he had become a Michigan resident and had acquired a medical-marijuana guard.  His appeal from the denial presented no fewer than eleven assignments of error, including that the trial court's condition prohibiting his usage violates the Americans with Disabilities Act and the Rehabilitation Act of 1973.  The panel was unimpressed. 

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Case Update

Nothing new down in Washington, but a couple of decisions from Columbus.  First up is State v. Gilbert, where the opinion begins, ominously for Gilbert, with the line, "in a plea negotiation, appellee, Kareem Gilbert, received the benefit of a bargain with the state but simply chose not to live up to his end of the deal."  That's an accurate description, too; Gilbert agreed to testify against his father in a murder case in return for some of the charges against him being dropped.  But a year after he was sentenced, when he was brought back from prison for his father's trial, he reneged.  The court vacated the plea agreement, Gilbert pled to murder, and was resentenced.

The interest in finality of judgments almost always hurts the defendant:  if you don't file a motion to reopen an appeal within 90 days, you don't file for post-conviction relief within 180 days, you don't file your habeas petition within a year, you're basically screwed.  Here, finality benefits the defendant; by a 5-2 vote, the court decides that once Gilbert was sentenced, the trial court lost jurisdiction to vacate the plea.

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Chilling advocacy

Every lawyer has a judge he'd rather not appear in front of.  There's bad blood:  something was said that was interpreted the wrong way, or maybe the lawyer was a little too zealous in his advocacy.  That's not a big deal here in Cuyahoga County.  There are 34 judges, and you can literally go years without having anything in front of a particular one.

I've often wondered what it would be like to practice in a small county.  I guess it'd be a real problem if you pissed off the only judge on the bench.

Robert Bright could tell you all about that.

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What's Up in the 8th

Pretty grim week in the 8th:  fourteen cases, and the only reversal comes in a municipal court case where the majority of the panel finds the evidence insufficient to support a conviction for obstructing justice.

Still, we learn some things; at least I do.  After wading through eighteen pages of the opinion in State v. Bridges to absorb the facts about the murder of the transvestite whose body is found after being submerged in a pond for several months, the payoff is that trying to conceal a body - like, say, submerging it in a pond for several months - constitutes abuse of a corpse.  

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Case Update

Other than a summary reversal of a 9th Circuit case which had granted habeas relief, the Court hasn't issued any decisions so far this term.  But oral arguments have proceeded apace, including one last week about whether a state dental board could preclude non-dentists from offering teeth-whitening services.  The "dental board" consisted of practicing dentists elected by other dentists.  For those of you conversant with economic terminology, this would be found under "barriers to competition," and explains why you need to have a state license to put makeup on people.

There was also argument in one quasi-criminal case of note, Jennings v. Stephens.  Jennings had been sentenced to death, but won a new sentencing hearing when a Federal judge found for him on two of three ineffective assistance claims.  On appeal, Jennings argued that the judge should have also found for him on the third claim.  The 5th Circuit held that the judge was wrong in granting relief on the first two, and that it couldn't consider the third because Jennings hadn't cross-appealed on that issue.  Jennings now argues that he didn't need to cross-appeal, following the general rule that victorious party need not cross-appeal unless he wishes to expand the judgment below.  (For example, in a civil case you win a judgment but the trial court denies your request for attorney fees, and the other side appeals.  If you simply want to defend the judgment, you don't have to cross-appeal, but if you want to take up the fee issue, you do.)  My take is that Jennings will win, adding a bit of clarity to the law.

Down in Columbus, John Johnson is rebuffed in his latest attempt at relief from his conviction nearly half a century ago.  Johnson was convicted of aggravated murder and sentenced to death in 1976, but the Ohio Supreme modified that to life imprisonment when SCOTUS declared Ohio's death penalty scheme unconstitutional.  This represents Johnson's third effort at claiming that he should get a new sentencing hearing, not just a modification of the sentence, and it proves no more successful than the previous two.  Johnson will have his next parole hearing in two years, and we'll see how that goes.

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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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