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

Milestones abounded last week.  Wednesday was the anniversary of the Supreme Court's 1954 landmark decision in Brown v. Bd. of Education.  Thursday was the anniversary of the infamous decision it overruled, Plessy v. Ferguson.  And Tuesday was the 11th birthday of this blog.  Some would say they're all of equal importance.  Some would say that's the problem with hallucinogenics.

No new criminal decisions from SCOTUS last week, but we'll talk about one I missed, Nelson v. Colorado, which came down a month ago.  It's relatively simple:  Nelson had been convicted and ordered to pay restitution, which she did.  Then her conviction was reversed on appeal, and the State decided not to retry her.  She asked for her money back, but the Colorado courts pointed to the state's Exoneration Act.  That had been passed to award compensation to those wrongfully convicted, but in a curious twist, the statute also provided that to regain money paid in restitution or fines after a vacated conviction, the defendant had to file a civil action, and then prove her innocence by clear and convincing evidence.

Colorado's the only state to do that, and now there are none:  even before the decision, a new Colorado statute was to go into effect in September, providing for automatic reimbursement if a conviction is vacated.  Thus, there's a temptation to view Nelson as an opportunity for bemusement at Thomas' lone dissenting opinion, which bewilderingly argues that the only source of relief for Nelson is the 14th Amendment's due process clause, and since in his view that amendment confers no substantive rights, "Colorado is therefore not required to provide any process at all for the return of the money."

I mean, that's silly.  Can anyone think of a process by which the government can seize your money, then force you to file a lawsuit and prove that you should get it back?

Well, yes, you can:  civil forfeiture. 

That might even get Thomas aboard.  Two months ago the Court declined cert in a Texas case because of a critical procedural problem, but Thomas wrote a statement with the denial castigating the "egregious and well-chronicled abuses" in far too many forfeiture cases.  (You can easily find them on your own.  That's why God created Google.)  Keep in mind that this was a case the Court decided to hear, despite knowing that the issue would be mooted when the new state law went into effect in a few months.  That would ordinarily warrant a DIG - dismissed as improvidently granted - but maybe the Court was sending a message.

No messages from Columbus; a few civil and disciplinary decisions, and that's about it.  Let's check out the courts of appeals.

Continue reading "Case Update" »

What's Up in the 8th - Part II

The 8th District handed down 15 decisions last week.  In eight of them, the defendants had fools for lawyers:  they acted pro se

Well, not all of them.  The defendant in State v. Anthony gets his sentence vacated again because the judge thought that giving concurrent time solved the problem of allied offenses.  It doesn't.  In State v. Brown, the judge didn't impose the mandatory fine on a drug conviction, so it back for resentencing, and Brown can submit an affidavit of indigency to avoid having it imposed.  If the judge imposes it anyway, the plea has to be vacated because nobody told Brown that there was a mandatory fine for the crime.  So the judge can decide not to impose the fine, or the case goes back on his docket.  Gosh, I wonder what's going to happen?

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

What's Up in the 8th - Part I

I used to like it if my clients were in jail pending trial.  At least that way, it's harder for them to commit new crimes.  One thing has changed my opinion:  the realization that among the 2,150 inmates of the county jail, at least 1,600 must have a law degree, and are more than happy to advise my client about my innumerable failings and lack of knowledge.

Did you know that you can't be prosecuted for drug residue?  That failure to comply -- basically, the old fleeing and eluding the police -- requires the State to prove that the chase was at least four miles long?  All too often, I find myself sitting in a holding cell thinking, "Wow, I'm here with a guy in an orange jumpsuit, and I'm the dummy in the room.

So when the trial judge tells the defendant in State v. Richmond that he "should be careful not to listen to 'jailhouse lawyers,'" my only response is, can I have an amen?

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

Case Update

This is the last place you'd look for stock tips, but here are two of them:  Geogroup (GEO) and Corecivic (CXW).  They're the two largest for-profit prison operators in the country.  They lost 35% and 25%, respectively, of their value last August when the Obama administration announced that it would end the use of private prisons.

That was one of the first orders rescinded by Jeff Sessions, the new attorney general in the Trump administration.  GEO has already hit a new high since then, and there's more gold in them thar hills:  last week Sessions struck again.  Sessions' predecessor, Eric Holder, had issued guidelines for Federal prosecutors designed to avoid harsh sentences for defendants charged with low-level drug offenses.  Sessions reversed that last Friday, instructing prosecutors to seek the strongest possible charges and sentences against defendants they prosecute.  Doubling down on the drug war certainly makes sense to those of us who remember how well it worked the last time.

Oh, wait...

America incarcerates more people than any other country in the world, and the cost of that, in both monetary and human terms, had finally brought together a bi-partisan Congressional coalition seeking prison reform.  Opposition by then-Senator Sessions helped kill it last year, but he wasn't alone; one of the opponents, Sen. Tom Cotton of Arkansas, even argued that America actually has an under-incarceration problem. 

I'm guessing we'll be taking care of that problem in short order.

Continue reading "Case Update" »

Case Update

Neil Gorsuch cast his first major vote last week.  It provided a majority approval for Arkansas to kill Ledell Lee, the first time in a dozen years that the state has executed anyone. 

But that opened the floodgates, as we say in the law biz.  Lee was one of four inmates that "got the cocktail" in Arkansas last week.

One of the trio of drugs used in the state's killings was midazolam, a sedative.  Pharmaceutical companies won't sell that anymore unless the buyer - usually governments - agree that it won't be used for executions.  Arkansas' supply was due to run out at the end of the month, and so the state what one commentator aptly termed "a lethal clearance sale." 

But at least we won't have to worry about keeping safe from Jack Jones, the first to meet his maker that night.  Not that we had much to worry about anyway, given that he's an overweight 52-year-old amputee.  Three hours later, Marcel Williams met the same fate on the same table, marking the first time in eighteen years that a state had executed two people on the same day. 

It could have been worse:  Arkansas actually had eight executions lined up for the month, but four were stopped by court order.

Not by Neil Gorsuch's order.

Continue reading "Case Update" »

What's Up in the 8th

I had a pretrial with a prosecutor the other day on a failure to verify registration as a sex offender case, and commented on what a waste of time these are.  The prosecutor replied, somewhat defensively, "Well, at least they protect the public."

Well, no.  Sex registration laws are based upon two facts that are demonstrably untrue.  The first is that they protect children against molestation by strangers; in fact, the vast majority of sex assaults on children are committed by family members or close friends of the family.  The second is this passage in a 2003 Supreme Court decision:  "the rate of recidivism of untreated [sex] offenders has been estimated to be as high as 80%."  As this article explains, the sole basis for that statistic is a 1986 article in Psychology Today, which didn't provide any evidence to back up that assertion. 

And if you really want to get into the weeds about whether these laws protect the public, take a look at the 6th Circuit's decision last year in Doe v. Snyder on Michigan's sex offender registration law.  As I explained when I discussed the case, the short version is that after a full hearing where Michigan had an opportunity to provide evidence as to the efficacy of its sex registration laws, it came a cropper:  the court found the law "has, at best, no impact on recidivism."  At best; in fact, there's evidence that such laws are actually counter-productive.

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

Case Update

Ordinarily, Divna Maslenjak wouldn't have anything to worry about.  When she'd fled Serbia and came to the United States as a refugee in 2000, she'd lied about her husband's military service in the Bosnian Serb military.  She was naturalized in 2007, but the ICE crew came a'knockin' last fall.  No big deal; she claimed that the fib was immaterial - it wasn't one that would have affected the immigration officials' decision to naturalize her.  "So what?" the ICE crew responded, deciding that it was immaterial whether her falsehood was immaterial, and shipped her back to Serbia.

 If the oral argument on the case in the Supreme Court last week is any indication, it's likely she'll be returning to our shores.  In the Time of Trump, nobody seems especially keen on the idea of giving the government essentially unfettered discretion to strip people of citizenship.  Roberts noted that one of the questions on the form was whether the applicant has "ever committed, assisted in committing, or attempted to commit a crime or offense for which you were not arrested."  Roberts confessed that he had once driven 60 in a 55 zone.  Would that do the trick?  Sotomayor asked about failure to disclose a childhood nickname, Breyer noted that the questions on the naturalization application were "unbelievably broad," and the rout was on.

The outcome of Kentel Weaver's case is harder to predict after the oral argument two weeks ago.  The judge in his case had closed the courtroom, without making the required findings to do so.  The lawyer didn't object.  Weaver raised an argument that this constituted ineffective assistance.  This raised a quandary:  impermissibly closing a courtroom to the public has been held to be structural error -- no showing of prejudice is required -- but an ineffective assistance does require prejudice.  Which one to use?  The justices went round and round without any clear answer, and it's plausible that they may carve out some exception to the structural error rule in the context of IAC claims, as suggested Gorsuch, such as whether the error "seriously affects the fairness, integrity, or public reputation of judicial proceedings."

That wraps up oral arguments for SCOTUS for the 2016 term.  There are about a half-dozen criminal cases still to be decided.  I'll give you a rundown of them later in the week.

Continue reading "Case Update" »


Like Mark Twain, rumors of my demise have been greatly exaggerated. Midnight Oil.png Except I am pretty sure he's actually dead, while I am not, and for that matter, nobody's spreading rumors that I am.  

Great lead, huh?

The nice thing about practicing law as long as I have is that you know what you're capable of.  Twenty years ago, the prospect of knowing that I had a brief due on Monday would provoke sleepless nights on Saturday and Sunday, especially since I hadn't even started writing it.  And "due" means "due."  I'd already taken the two extensions, the journal entry granting the latter advising that no further extensions would be considered.

Harsh words indeed, so first thing on Monday I got to work, and by 9:30 that night I had completed it:  sixteen pages of insightful legal analysis, in my usual stellar prose.  A bit provocative, too.  I've been using subheadings in my briefs, which wind up in the table of contents, providing the reader with a summary of my arguments.  Usually, the subheadings are somewhat descriptive:  "The police had no reasonable suspicion that Mr. Jones was engaged in any criminal activity at the time of the stop," and that sort of thing.  Not so much this time:  the headings were "The usual suspects," "Garbage In, Garbage Out," and "Being there."  

We'll see how that works.  Or doesn't.

Anyway, have two more briefs to do this week, one of the "no further extensions" variety, and the other which isn't, but for various reasons needs to be filed by Friday anyway.  So I'll have the weekend to write up stuff for the blog, like the case update and what's up in the 8th, and some new stuff on what the legislature is considering in the way of changes to the sentencing law.  Spoiler alert:  Be afraid.  Be very afraid.

See you then.

Continue reading "MIA" »

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Recent Entries

  • May 22, 2017
    Case Update
    Is SCOTUS looking for a forfeiture case? Plus, appellate decisions on expungement and restitution, plain error, and what a judge has to tell a defendant about sex registration
  • May 19, 2017
    What's Up in the 8th - Part II
    Decisions on lineups and prior calculation and design, and two out of eight (eight!) pro se defendants come up winners,
  • May 17, 2017
    What's Up in the 8th - Part I
    Taking a first look at some of the 8th District's decisions over the past two weeks
  • May 16, 2017
    Case Update
    Stock tips, Federal sentencing reform goes dormant, schoolbag searches, and the retroactivity of State v. Hand
  • May 8, 2017
    Case Update
    Death in Arkansas, a worrisome disciplinary decision, and appellate cases on speedy trial, arson registration, use of prior testimony, and the futility of post-conviction relief
  • May 2, 2017
    What's Up in the 8th
    Nothing but sex
  • May 1, 2017
    Case Update
    SCOTUS closes out oral argument for the Term, the Ohio Supreme Court has seven of them this week, and we report on a decision where you'll probably want to play Paul Simon's "Still Crazy After All These Years" in the background while you read about it
  • April 26, 2017
    Like Mark Twain, rumors of my demise have been greatly exaggerated. Except I am pretty sure he's actually dead, while I am not, and for that matter, nobody's spreading rumors that I am. Great lead, huh? The nice thing about...
  • April 20, 2017
    The Supreme Court takes a look at the trial tax
    And you thought this was the week you only had to worry about income taxes
  • April 18, 2017
    What's Up in the 8th
    Remembering Warren Zevon, and the Fourth Amendment lives