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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Case Update

While the US Supreme Court's decisions in criminal cases are of the utmost importance here, we tend to forget that they represent only a handful of the 70-some opinions the Court hands down each term.  This year they're frontloaded:  six of the eight cases set for oral argument starting next week are criminal cases.  (And one has criminal overtones:  whether a 4th Amendment violation can serve as the basis of a malicious prosecution suit.) 

The cases run the gamut, from specific statutes on insider trading and bank fraud, to broader issues such as the collateral estoppel aspect of the Double Jeopardy Clause.  There are two on the racial aspect of criminal law.  Pena Rodriguez v. Colorado addresses the question of whether the general rule barring impeachment of a jury's verdict should be applied to evidence of a juror's racial bias.  Buck v. Davis is a habeas case, involving the testimony of a psychologist in a death penalty case who opined that blacks are inherently more dangerous.  The case includes a fascinating twist, which we'll discuss next week.

Nothing of an even vague criminal nature in the cases from the Ohio Supreme Court last week.  Two decisions involved mineral rights, and if you ever find an in-depth discussion of that subject here, please notify the police, because it means I've been kidnapped.

In the courts of appeals...

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Double Jeopardy and multiple trials

The State of Ohio has been trying to convict Christopher Anderson of strangling his girlfriend fourteen years ago.  Oh, Lord, have they tried. 

The first time, back in 2003, the trial judge granted a motion in limine precluding the state from introducing evidence that he'd choked another woman.  A witness blurted it out, so the judge declared a mistrial.  At the second trial, the judge decided that the evidence should come in, but Anderson's conviction was reversed on appeal because the panel decided the judge had it right the first time.

Round Three ended in a hung jury in 2008.  Round Four, which began two years later, ended abruptly when a juror commented in voir dire that one of the defense lawyers appeared to be asleep.  I don't know if it was the same attorney who sat through the first four trials, but if it was, who could blame him?  Voir dire's boring enough, and the pervasive stench of déjà vu would send anyone off to the Land of Nod.

Round Five started a month after that, but ended in another hung jury.

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Self-incrimination and immunity

Last Thursday, I got a call about 3:30 PM from a bailiff asking me if I was downtown.  I looked out the car window and saw that I was just passing mile marker 196 on the Ohio Turnpike, so I could truthfully answer no.  "Why?  What's up?"

"The judge wanted you to advise a witness of their self-incrimination rights," she said.  "But we'll find somebody else."

It didn't surprise me when she called back five minutes later.  Finding a defense lawyer just hanging out in the Justice Center at 3:30 in the afternoon reminds me of the old joke about how they were going to do a Nativity play in Washington, D.C., but couldn't find three wise men or a virgin.  "Can you be here tomorrow morning at 8:30?"

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What's Up in the 8th

If you're representing co-defendants, there are a number of things you ought to do.   Carefully explaining the potential conflict to your clients in advance is a good idea, so you don't wind up with them asking pointed questions about it of the judge during the plea hearing.  Getting a signed waiver, where you fully explain that potential conflict in writing, is a good idea, too.

Not doing it at all is the best idea.

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Case Update

Next week this time SCOTUS will be having its "long conference."  I know, it sounds like something from Last of the Mohicans, with the tribal elders sitting in a wigwam smoking a hookah pipe and trying to figure out how to stem the influx of the pale faces and their firesticks.  Hell, maybe it is that.

Probably not.  From what I gather, the justices meet to go over the petitions for certiorari that have piled up during the summer recess, figuring out who's been naughty and who's been nice -- oops, sorry, that's something different, too -- figuring out which cases will round out their docket for the year.  And it's just two weeks until oral argument opens, with two cases discussing the racial aspect of the criminal justice system.  We'll talk about them next Monday.

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Open discovery and non-disclosure

On Tuesday, in State v. McKelton, the Supreme Court rejected the defendant's claim that his counsel provided ineffective assistance during plea negotiations.  According to McKelton, he spurned counsel's advice to take a plea bargain because they didn't talk to him enough or do a good enough job investigating the case.  The court points out that McKelton told the judge at a pretrial hearing that he had rejected the plea offer because he wanted a chance "to prove my innocence."

That didn't work out so well.  McKelton was convicted of killing two people and sentenced to death.  The court affirmed.

There are a wealth of issues in McKelton, and I might talk about some of them later on, but in this post I'm going to concentrate on the first one discussed by the court:  how the new rules of discovery impact the disclosure of names of witnesses prior to trial.

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What's Up in the 8th

It's a tough case.  Your client's just 19; at that age, it's unsurprising that he doesn't have an adult record, but considering the crowd he's been hanging out, it's amazing that he doesn't have a juvenile record, either.  But his luck runs out:  wrong time, wrong place, wrong people, and he's got a murder charge.  You're not sure he did anything, but you know that what matters is whether the jury thinks he did anything.  The judge has been kind enough to let him talk to his family in the courtroom, and mama's crying, because you've disabused her - and him - of the belief that 15 to life means he'll be out in 15 years; with the parole board granting release in about 6% of their hearings, 25 to 30 is a much more likely number. 

Maybe more.  I've had three clients in the past year who were convicted of murder back in the 1980's.  All of them are still in prison.  One is 82.

But you've gotten your guy a deal for eighteen years flat, and after much agonizing, he finally climbs aboard.  He mumbles his way through the plea hearing. You go back to the holding cell to talk to him about the sentencing, at which point he tells you he wants to take the plea back.

And you're about to learn that the emptiest phrase in the law is that "presentence motions to withdraw a plea should be freely and liberally granted."  

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Case Update

Just three weeks until SCOTUS swings back into action, hearing oral argument in three criminal cases, so I'll have something to write about then.  Not that I don't now, with the Ohio Supreme Court's decision a couple of weeks back in State v. Thomas.

The realization that there were several thousand untested rape kits gathering dust in the evidence rooms of the Cleveland police department has resulted in two legal issues, with me, as luck would have it, at the center of both.  The first is the issue of pre-indictment delay, which was resolved back in July in State v. Jones (discussed here).  The court found fault with the 8th District's analysis of the issue, which had commingled the two-step analysis - determining whether the defendant had suffered actual prejudice, then whether the delay had been justifiable - but rejected the State's proposed test for actual prejudice, which would have made establishing a claim virtually impossible.  We'll see what happens on the rebound.

Thomas presented another issue stemming from the delayed prosecutions.  A rape committed prior to July 1, 1996, was punishable by an indeterminate sentence, with a minimum of five to ten years, and a maximum of twenty-five.  That's when SB 2 took effect, and that heralded the introduction of "truth in sentencing" with determinate sentences:  if the judge gave you eight years, you did eight years.  There was an uncodified provision in SB 2 which provided that anyone who committed a crime before its effective date was to be sentenced under the old law. 

Then along came HB 86 in 2011, which reduced a lot of sentences, and which contained its own uncodified provisions saying that anyone being sentenced after the effective date, regardless of when the crime was committed, got the benefit if the sentence was less.  So for all these cold case rapes, many of which were committed before July 1, 1996, which law controls? 

The competing contentions are hashed in more detail in my post about the oral argument.  Suffice it to say that I slew the dragon of the Cuyahoga County Prosecutors office, as well as the Ohio Prosecuting Attorney's Association and the Franklin County Prosecutor, which had entered the fray against me.  My strength is as ten because my heart is pure.

Something like that.  Maybe I need to stop going to those Renaissance Fairs.

Anyway, having channeled my inner Sir Lancelot, let's take a look at what's happened in the court of appeals.  

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Recent Entries

  • September 26, 2016
    Case Update
    (Very) quick preview of SCOTUS arguments in the next few weeks, plus appellate cases on confessions, searches, and double jeopardy
  • September 22, 2016
    Double Jeopardy and multiple trials
    Christopher Anderson will get tried for the sixth time, but the real fight is over the role of the Ohio Constitution
  • September 22, 2016
    Self-incrimination and immunity
    Can a witness be forced to testify, and other stories from the trenches
  • September 20, 2016
    What's Up in the 8th
    Joint representation, plea withdrawals, and why it's unfair to prosecute anyone for rape
  • September 19, 2016
    Case Update
    The Supreme Court's 2016 term is coming up (imagine your excitement), and a closer look at State v. McKelton
  • September 16, 2016
    Open discovery and non-disclosure
    The Supreme Court looks at when a prosecutor can withhold discovery
  • September 13, 2016
    What's Up in the 8th
    It's a tough case. Your client's just 19; at that age, it's unsurprising that he doesn't have an adult record, but considering the crowd he's been hanging out, it's amazing that he doesn't have a juvenile record, either. But his...
  • September 12, 2016
    Case Update
    I get a win in Columbus, and appellate cases on withdrawing pleas, speedy trial, and ineffective assistance in immigration cases
  • September 7, 2016
    Another look at sex offender registration laws
    Michigan's SORA law gets body-slammed by the 6th Circuit
  • September 6, 2016
    What's Up in the 8th
    Drunk clients, and jury instructions