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 »


The good faith exception and other stuff

The cops walk past a hotel room, and through the open window they spot a bag of drugs lying on the bed.  They knock on the door, the occupant opens it, and they seize and arrest him, and which point one cop takes two steps into the room and picks up the bag.

Good search or bad?  That's the situation presented in the 10th District's decision last week in State v. Thomas, and it's worth a walk through it.

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Selling judges

I remember seeing an ad about twenty years ago for a common pleas judge who was running for the appellate bench.  It showed him slamming the door of a jail cell occupied by some evil-looking miscreant, the obvious implication being that the judge's rulings would heavily disfavor the criminal class.  A bit over the top, but those types of ads in judicial campaigns were exceedingly rare; most simply featured the candidate and his Stepford family in front of a somewhat modest but well-kept house, with him telling us how he was diligent and trustworthy and had several other attributes normally attributed to the Boy Scouts.

That was then.

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What's Up in the 8th

Eighteen decisions this week from the 8th District in criminal cases, and only two were wins for the defense.  And the outcome in one, State v. Rodriguez, was governed by binding precedent in the form of the en banc decision in State v. Mace:  a journal entry saying that post-release controls are imposed "for the maximum period allowed" doesn't cut it.  Let's hit the highlights.

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Case Update

Oral arguments are done in SCOTUS, and now we're just awaiting the decisions:  thirty-four of them, to be precise, or about a half of the Court's docket for the term.  In addition to the biggies on Obamacare and gay marriage, there are over a half-dozen criminal decisions still pending, the most significant of which is probably Ohio v. Clark (oral argument discussed here.)  In other Court-related news, Natalie Portman has been chosen to play Ruth Bader Ginsburg in a movie about Ginsburg's fight for equal rights for women.  Yes, Natalie Portman.  Lest that give you pause, Portman graduated from Harvard undergrad; Ginsburg graduated from Harvard Law, where she was one of nine women in a class of 500.

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Friday Roundup

Going the extra mile.  A couple of weeks ago, I wrote about the oral argument in the Supreme Court in Glossip v. Gross, which involved the latest development in the evolution of the death penalty in America.  We've come a long way, baby, since Gary Gilmore was executed by firing squad in 1977, the first person to suffer that fate after the Supreme Court re-legitimized capital punishment in Gregg v. Georgia, overruling its decision four years earlier in Furman v. Georgia.  (What is it about Georgia?)  Glossip presents an important issue.  Over 85% of all executions in America since 1977 have been performed by lethal injection, but the drugs which were commonly used for that purpose are no longer available, because the companies which manufacture them don't allow it.

That's prompted several states to look for other methods; in fact, Oklahoma's governor just signed a bill allowing the use of nitrogen gas should Glossip come out the wrong way for the State.  Let's just hope nobody who's in charge of making those decisions got any ideas from the story the other day:

North Korea's Defence Minister Hyon Yong-chol has been executed for showing disloyalty to leader Kim Jong-un, South Korea's spy agency has told parliament.

MPs were told Mr. Hyon was killed on 30 April by anti-aircraft fire in front of an audience of hundreds, the Yonhap news agency reports.

Now, I realize that over the past 60+ years North Korea has been run by dictators who make Joe Stalin look like Mr. Rogers, and Jong-un, the current one, takes bat-shit crazy to a whole 'nuther level.  But still:  anti-aircraft fire?  (And keep in mind that Yong-chol's display of disloyalty took the form of falling asleep during one of Jong-un's speeches, an understandable faux-pas since I'm guessing that "Jong-un" and "silver-tongued" has never appeared in the same sentence.)  But apparently in North Korea, when they're not coming up with different ways to cook bark, they're figuring out different methods of executing people who commit some real or imagined offense against the Supreme Leader.  Death by mortar fire is another favorite.   No, I am not making that up.  I think.

A year ago, Dennis McGuire's execution here in Ohio went seriously bad when it took him 23 minutes to die, with him spending his final minutes writhing on the gurney.  If Ohio's legislators had been willing to go a little more over the top, all that bad publicity could have been avoided.  Just sayin'.  

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Getting the mark

The education of the criminal bar continues apace, and they just don't understand how things work here in Cuyahoga County.

I belong to the Ohio Association of Criminal Defense Lawyers, and they have a nice listserv:  a great place to go if you need a boilerplate motion, some advice about a search issue, or who you can get as an expert on a particular issue.  Last week somebody wrote in saying they had a case here where the client was charged with a felony four drug possession.  He'd tried to get a misdemeanor or a felony five, without success:  the file had been marked to the felony four, and the prosecutor was unwilling to request a change.  The lawyer wanted to know if the mark was likely to get better on the day of trial.

And the response was, "what is this 'mark' of which you speak?"

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What's Up in the 8th

I'm handing an appeal of a perjury case, the first time I've had a case involving that charge in all my years of practice.  The 8th District's decision last week in State v. Smith confirms how rare a prosecution for perjury is:  they constitute about half of one percent of Federal prosecutions, which, ironically, is probably about the same percentage of trials that go without somebody lying under oath.  The opinion asserts that you have a better chance of being struck by lightning than being prosecuted for perjury, although the source it sites gives a discomfiting 1 in 12,000 lifetime chance being struck by lightning.  In other words, you have a better chance of being struck by lightning on your way to buy a lottery ticket than you do of winning the lottery.  Ironies abound...

Anyway, as the opinion puts it, why did lightning strike Smith?

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Case Update

On Thursday, it'll be exactly nine years since I started this blog.  Please don't spend more than $50 on gifts for me.

Supreme Court law clerks could certainly pony up more; a few years back I read that the average clerk got hired at a salary of over $200,000 after they finished their stint, which was only slightly less than the justices they used to work for are paid.  But they play a big role at the Court, as a recent symposium on the role of the clerks reported.  The Court has "cert pool"; a single law clerk prepares a memo on certiorari petitions and shares it with the other chambers, and a review of 9,500 cases shows that the justices follow it 75% of the time.  Not sure of the significance of that, considering that less than 1% of petitions are granted.  You crunch the numbers.

In Renaissance Italy, artists had patrons; following the spate of Supreme Court decisions which released the floodgates of money in political campaigns, each presidential candidate seems to need one, or else suffer an early exit from the race.  SCOTUS backed off of that a bit last week in Williams-Yulee v. Florida Bar, upholding a Florida rule barring judicial candidates from personally asking for campaign donations.  The basis was allowing this would lead people to have less faith in the integrity of the judiciary.  How their faith would be reinforced by campaign committees doing the work is left unexplained in the decision.  Oh, and the rule does allow the judge to write thank-you notes for contributions, so there's that.

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Recent Entries

  • May 22, 2015
    The good faith exception and other stuff
    The 10th District takes down a warrantless search
  • May 21, 2015
    Selling judges
    How judicial campaigning affects criminal justice.
  • May 19, 2015
    What's Up in the 8th
    404(B) evidence, mandatory bindover, and a good search decision
  • May 18, 2015
    Case Update
    Natalie Portman has a new gig, I finally tell you about State v. Willan, and some appellate court decisions
  • May 15, 2015
    Friday Roundup
    Notes from the underground
  • May 14, 2015
    Getting the mark
    How we do things here in Cuyahoga County
  • May 12, 2015
    What's Up in the 8th
    The court clarifies (???) immigration cases, a trial court just can't manage the intricacies of a perjury case, and a rough decision on Crawford
  • May 11, 2015
    Case Update
    SCOTUS limits judicial fundraising in a very limited way, appellate cases on Facebook, passenger searches, and tapes of controlled buys, and a big Fail on an attempted suicide by cop
  • May 8, 2015
    Inferences and particularity
    The Ohio Supreme Court tackles computer searches, and brings the State down for a big loss
  • May 7, 2015
    It's coming, it's coming
    Yeah, I know, so's Christmas.