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 »


Case Update

There are estimates that as many as 50% of those charged with crimes are mentally ill, and mental illness was the feature in two Supreme Court cases a week apart.  Today, the Court will hear argument in Brumfield v. Cain.  Brumfield was convicted of murder and sentenced to die in 1993, and he argues that the Eighth Amendment requires that there be a separate hearing focused solely on whether the defendant is mentally disabled, and thus cannot be executed under the Supreme Court's decision in Atkins v. VirginiaAtkins came nine years after Brumfield was sentenced to die, so there's some merit to the point that the hearing then wouldn't have been informed by Atkins.  Whether Brumfield is even mentally disabled is arguable, at least to the state:  they point out that he "was subjected to six evaluations before the age of 18 and not one diagnosed him" as disabled.

A week ago, the Court heard oral arguments in San Francisco v. Sheehan.  Police responded to a call that Sheehan, who was also mentally disabled, was causing a disturbance in her home, and found her highly agitated and holding a small bread knife.  So they shot her five times.  She lived, which is somewhat unusual; hundreds of mentally ill people are killed by the police each year, as Sotomayor highlighted in the argument.  The issue before the Court was whether the police should have to take such a disability into account, and use a less confrontational method.  But no sooner had the lawyer for San Francisco opened her mouth, when Scalia chimed in with his view of how the issue should be framed:  whether the law protects "armed and violent suspects who are disabled."  Well, now that you phrase it that way... 

By the way, if you're in D.C., you might want to stop off and catch a play called The Originalist, focused on Scalia, which the author explains is intended "to use this combative, almost operatic figure to explore how two people on opposite sides of a political, social, and even legal spectrum can take a step toward one another, begin to listen, learn to hear and respect the other's argument."

I'll wait 'til it hits Redbox. 

We talked about the lone Ohio Supreme Court decision last week, State v. Ruff, on Thursday, so let's head over to the courts of appeals...

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The Supreme Court clarifies allied offenses

Kenneth Ruff was charged with aggravated burglary and the rape of three women.  DNA evidence foreclosed the contention that he wasn't the one who did it, leaving him with only the argument that the sex had been consensual.  That was a tough sell, given that the three women were a 74-year-old, one living in a group home because of mental illness, and a diabetic who used a wheelchair because her feet had to be amputated due to the disease.  His trial resulted in the inevitable conviction, and the judge ran each of the rape charges consecutive to the aggravated burglary, for a total of 40 years. 

The 1st District vacated the sentence and sent it back, finding that the aggravated burglary and the rapes were allied offenses:  the aggravated burglary was indicted under the "causing serious physical harm" subsection, and that wasn't complete until the rapes had occurred, so the two offenses were committed by the same conduct.  The Supreme Court decided this would be a good opportunity to clarify the "same conduct" test it announced in 2010 in State v. Johnson, and yesterday, in State v. Ruff, it did just that.

If only.

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An innocent man

Texas prosecutor John Jackson is facing charges of "obstruction of justice, making false statements, and concealing evidence" favorable to the defense in obtaining the conviction of Cameron Todd Willingham, who, by virtually every objective measure, was innocent of the crime he was convicted of.  Jackson can take some solace that the charges against him are being brought by the state bar, and the worst Jackson faces is the loss of his law license.  Willingham lost his life.

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What's Up in the 8th

Joinder, of defendants and crimes, is the subject of two cases from the 8th District last week.  Brandon Spates flunks the pencil test, but it's more disastrous for him than having to wear one of Frank Costanza's manssieres.   The court does clear up on option on sentencing which involves a gun spec, but nary an encouraging word is heard:  defendants get shut out this week.

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

Case Update

A few years ago, I served as a moot court judge, and what I learned from the experience is that I don't want to be a moot court judge again.  The issue was whether a state which allowed private groups to buy a license plate with a special message could limit the plate's content, consistent with the First Amendment.  I wound up wading through about sixty pages of briefs and "background materials," although I do admit it was interesting stuff.  One of the judges on the panel did patent work, and the other had been retired for six years.  Go figure.

Maybe SCOTUS will ask us to sit in as guest justices for the oral argument this morning in Walker v. Sons of Confederate Veterans, which features that precise issue:  whether the State of Texas could refuse the group's request to issue a license plate featuring a Confederate flag.  With the special insight gained from my brief tenure on a pretend bench, I'll keep you posted.

Otherwise, the Court's gearing up for two momentous decisions:  the possible fate of Obamacare, in King v. Burwell, to be argued at the beginning of April, followed up at the end of the month with two cases on same-sex marriage, one on the power of states to ban it, the other on the power of states to refuse to recognize gay marriages granted in other states.  There'll be a total of two and a half hours of argument on those, one and a half on the former and one on the latter, with seven attorneys taking part.

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Thursday Roundup

Crime and... punishment?  Since the Supreme Court reinstituted the death penalty in 1977, Ohio has sentenced 419 defendants to death.  In the span of that near half century, it has executed precisely 52, about one in eight.  Another 136 still await their date with the gurney, but 231 -- nearly five times the number executed -- were removed from death row:  183 had their sentence or conviction overturned, 22 had their sentence commuted, and 26 died in prison before the sentence could be carried out.

That's not unusual, it turns out; nationwide, the chances of a capital defendant's sentence being overturned on appeal are more than twice the chance of them being executed, and when you throw in the two other outcomes, the chances of execution are one in four. 

Those are some of the details from a review of all death sentences handed during the "modern era" of capital punishment.  Actually, Ohio's about middle of the pack; California has executed just 13 of the 1,013 people it's sentenced to death, while Virginia has been much more efficient, executing 110 of the 152 who were given death sentences.

We often hear about how the death penalty affords closure to the victim's family, but the authors of the study make a good point in the Washington Post article announcing the results:

Ultimately, the American system of capital punishment arguably creates unnecessary suffering for both those defendants sentenced to death and the surviving family members of the victims of the crimes for which the defendants were convicted. A system that ensures prolonged court time, automatic appeals for the convicted inmate - most of whom are eventually successful - and only a small chance of actual execution is a system built on false promises for everyone, and indeed one that seems to verge on torture.

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Sex offender registration and the 8th Amendment

The wheels of justice turn slowly, but grind exceedingly fine.  And sometimes they grind people up.  We're going to find out whether Travis Blankenship is one of those people.

Blankenship, 21 at the time, had sex with a 15-year-old girl.  He wound up pleading guilty to an information charging him with one count of unlawful sexual conduct with a minor, a fourth degree felony.  That earned him ten days in jail.  It also earned him a Tier II sex offender status, which requires him to register for the next quarter century.  Last week, the Supreme Court held oral argument in his case to wrestle with the question of whether that registration requirement constituted cruel and unusual punishment.

Continue reading "Sex offender registration and the 8th Amendment" »

What's Up in the 8th

St. Patrick's Day in Cleveland is a holiday just a rung below Christmas, and on a court which features no fewer than three Gallaghers, we can anticipate that the 8th District will be represented in the parade.  As the judges march through the brisk mid-30's temperature, they can take comfort from the fact that I have not an unkind word about any of their decisions over the past couple weeks.  That, and green beer:  what more could you want?

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

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Recent Entries

  • March 30, 2015
    Case Update
    SCOTUS takes on mental illness; Anders briefs, vindictive sentencing, and painting rosy pictures
  • March 26, 2015
    The Supreme Court clarifies allied offenses
  • March 25, 2015
    An innocent man
    Did a prosecutor send an innocent man to death row?
  • March 24, 2015
    What's Up in the 8th
    Joinder of offenses and defendants, discovery non-violations, and yes, Virginia, you can get probation on the underlying offense even if there's a gun spec
  • March 23, 2015
    Case Update
    A few years ago, I served as a moot court judge, and what I learned from the experience is that I don't want to be a moot court judge again. The issue was whether a state which allowed private groups...
  • March 19, 2015
    Thursday Roundup
    The odds of a death sentence being carried out, residency restrictions for sex offenders get tossed out in California, and the Facebook defrauder goes on the lam
  • March 18, 2015
    Sex offender registration and the 8th Amendment
    Is requiring someone to register as a sex offender "cruel and unusual punishment"?
  • March 17, 2015
    What's Up in the 8th
    What a defense expert on eyewitness identifications can say, what a judge can do if you commit a crime while on PRC, and when a defendant "purposely avoids prosecution"
  • March 16, 2015
    Case Update
    Judges berating jurors, and it turns out that all you need to do to win appeals is raise "winning issues." Who knew?
  • March 9, 2015
    Vacation time
    Nothing from SCOTUS this past week, nothing from the Columbus Seven, and just five 8th District decisions, only one of which bears extended discussion. So it seems like a good time to take my quarterly vacation from the blog. I'll...