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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What's Up in the 8th

A long time ago, I summarized the 8th's jurisprudence on search and seizure and hearsay as follows:  If you're arrested in Cuyahoga County and you've got a 4th Amendment issue, don't worry, the evidence is going to be thrown out.  But if you do go to trial, anything anybody said is going to come in. 

And so it goes.  

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

Case Update

So how reliable is scientific evidence?  Not very, at least if it's being handled by Annie Dookhan, recently unemployed by the William A. Hinton State Laboratory Institute.  She specialized in "dry-labbing" drug samples:   reporting that the sample was positive for narcotics, without actually going to the bother of testing it.  A few months ago, Massachusetts vacated the convictions of 21,000 drug offenders whose fate might have been affected by Dookhan's malfeasance.

There's an interesting twist on this.   Back in 2009, Massachusetts law allowed the State in a narcotics case to introduce a certificate by a lab analyst to prove the weight and purity of the drugs at issue.  That made its way to the Supreme Court in Melendez-Diaz v. Massachusetts.  Scalia, building on his view of the Sixth Amendment's Right of Confrontation that he'd articulated in Crawford v. Washington, held that the report was a testimonial statement, and that meant the person who issued the report, who actually did the testing, had to be available to testify at trial.

The drugs in that case were tested at the William A. Hinton State Laboratory Institute, the same which a few years later would come to employ Annie Dookhan.

So that's a vindication of Melendez-Diaz, right?  Maybe not.  In Ohio, the prosecutor has to serve you with notice of his intent to submit a drug report.  If you don't demand within seven days that you want the analyst there, the State can introduce the report.  I've rarely seen defense attorneys make that demand.  I think the jury will be less impressed by a piece of paper than by having a nice man in a lab coat come in and explain all of his qualifications and how he tests drugs.

And cross-examination sure didn't ferret out Dookhan's misdeeds.  An ordinary audit did that.

By the way, Dookhan got three years in prison.

Continue reading "Case Update" »

Friday Roundup

Job Openings.  I got an email - you probably did, too - from Ohio Supreme Court Chief Justice Maureen O'Connor, exhorting me and my professional compatriots to provide pro bono legal services to the victims of Hurricane Harvey. 

Although as I write this, there's a pretty good chance that the regional base will be substantially expanded.  Normally, a trip in the late summer/early fall to Texas or Florida will be somewhere on most everyone's bucket list.  Not here.  Those imagined vacations did not entail witnessing utter devastation and the sole-crushing toll from dealing, day in and day out, with people who have lost their most basic possession:  their home.

O'Connor's done a good job of pushing for lawyers to do pro bono work.  There are a couple of civil firms here who do pro bono criminal work, usually in appeal or post-conviction.  And they do a very good job.  They should be complimented for that, but I'm pretty sure assigning an associate to handle some criminal stuff didn't put the partners on the Hamburger Helper Diet.

I get I get paid $50 or $60 an hour on State court-appointed cases, a fraction of what I get on a retained case.  I don't need to do those cases anymore, but I still do them, because I like it. 

But that's why if you wind up heeding O'Connor's admonition and doing God's work -- if God was a lawyer -- you're not going to see me.  My pro bono contribution is to help the State of Ohio acquit itself of its constitutional obligation to provide counsel to indigent defendants on the backs of the criminal defense bar.

If you're looking for a paying gig, you might want to check with the Cincinnati Reds; I'm guessing they're going to have an opening in their legal department, or know of one in a law firm they hired to handle an appeal to the Ohio Supreme Court.

A tax appeal, no less.  At issue was the promotional items -- bobblehead dolls, jerseys -- that the Reds give away to patrons entering the stadium on special nights.  For reasons that I'd probably care about if I did tax law, the Ohio Board of Tax Appeals decided that the Reds had to pay sales taxes on those items, even though nobody purchased them.  The Reds squawked, and up it went to the Supreme Court.

In an appeal in the Supreme Court, you have forty days to file the brief, which starts to run when the record is filed.  Here, that was on July 19, 2017.  You can get one extension of twenty days, if it's agreed to by the other party.  So on August 29, 2017, the Reds' attorney filed that extension, unmindful of the mnemonic device most of us learned in grade school which teaches that July has 31 days, meaning the extension was actually due on August 28. 

Sure enough, on September 1, the Supreme Court struck the extension as untimely.  That also meant the brief hadn't been filed on time, so the court dismissed the case as well.

That same day, the Reds filed a motion for reconsideration, the attorney asserting that, because of a docketing error, he believed the brief wasn't due until September 1.  We'll see what happens, but take solace in the fact that however lousy last Friday was for you, it was measurably worse for that attorney, and whoever is responsible for managing his docket.

Eat Fresh.  I'm pretty sure that when Subway made Jared its pitchman, they thought the worst scenario was that he'd get fat again.  Well, Jared's 16-year prison sentence for paying for sex with minors and possessing child pornography certainly trumped gaining an additional 70 pounds or so of belly fat.

Subway's managed to get along quite nicely, though.  It's one of my frequent lunch destinations, and although it hasn't resulted in any slimming effects, it's...  well, it's food.

But it turns out Subway might be ripping off its customers.  In January of 2013, an Australian teenager discovered that his Subway "footlong" sandwich actually measured only 11 inches long.  I don't know if they have class actions in Australia, but they sure do here, and no fewer than nine separate class-action suits were filed.  They were settled, with the lawyers getting $525,000.  The named plaintiffs got a grand each.  The rest of the members of the class?  They got zip:  not even a coupon for a few bucks off their next sandwich.

Let me introduce you to Theodore Frank.  He's head of the Center for Class Action Fairness.  You've probably got those notices telling you that if, say, you flew on American Airlines in 2013, you may join a class action suing them for some baggage fee discrepancy or whatever.  If Frank and his people believe that a particular class action seems bogus, they will join the class, solely to give them standing to object to any proposed settlement.

Which is what Frank did here.  The judge approved the settlement anyway, and so Frank appealed.  And last Monday, the 7th Circuit agreed with Franks and reversed the settlement

Boy, did they ever:  noting that the shorter size was an inevitable result of the variability in the baking process, and that no Subway customer actually suffered any loss (the amount of food put on the sandwich is either pre-measured or determined by the customer), the opinion found that

A class action that seeks only worthless benefits for the class and yields only fees for class counsel is no better than a racket and should be dismissed out of hand. That's an apt description of this case...  If the class settlement does not provide effectual relief to the class and its principal effect is to induce the defendants to pay the class's lawyers enough to make them go away, then the class representatives have failed in their duty under Rule 23 to fairly and adequately protect the interests of the class.

So maybe the food at Subway isn't the greatest, but at least you know that if you're sandwich is shorter than advertised, you're still getting the same amount of not-so-great food. 

Continue reading "Friday Roundup" »

What's Up in the 8th

There's been a big movement toward easing the re-entry of criminals back into society.  Ohio's expungement laws have not marched in lockstep with that concept.  Which is difficult to understand:  the surest way of preventing a felon from recidivating is to have him get a job, and there is no greater barrier to employment than a felony record.

And so it goes.  Although the panel in State v. T.S. opines that "if anyone deserved to have a record expunged, it is T.S.," the court is compelled to reverse the grant of expungement, by the clear language of the statute:  T.S. pled to child endangering, and you can't have a conviction expunged, felony or misdemeanor, if the victim was a minor.

The panel urges the General Assembly to take another look at the expungement statutes, but one has difficulty imagining six more forlorn words in the English language than "maybe the legislature will fix this."

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

Constructive possession

You're sitting on the couch when the cops break in, and there's a couple hundred grams of coke lying on the coffee table.  That puts you in Major-Drug-Offender land, which is not a happy place.  But, you tell everybody, the coke really belonged to LeRoy, the guy sitting next to you, who everybody knows is a big-time dealer; he was just about to sell you a quarter ounce from his stash.

They tell you it doesn't matter:  you had "constructive" possession, that is, you were in a position to exercise "dominion and control" over the drugs on the coffee table.

You tell them LeRoy is very protective of his drugs.  If you had indeed attempted to exercise "dominion and control" over those drugs, LeRoy would have probably doubled the number of holes in your skull.

They tell you it doesn't matter.  And it doesn't. 

Or it does, depending upon which recent 8th District you want to rely on.  Let's take a look.

Continue reading "Constructive possession" »

What's Up in the 8th

A traffic stop found Samson Primm in possession of a few grams of marijuana, but he hires a lawyer and files a motion to suppress the stop.  On the day of trial, the City asks to dismiss the case.  Primm objects, and insists that he wants to go ahead with the motion to suppress.  The judge dismisses the case anyway, and Primm appeals. 

That's a lot to go through on a minor misdemeanor.  But there was more at stake than a little weed.

When they searched the car, the cops also found $100,000.  They took the money, and Primm wants it back.

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

Truth in plea bargaining

So I got a brochure last week from Judge Donnelly over at the Common Pleas court.  As you can see, it's a panel discussion on plea bargaining.  The judge asked me to get out the word, so I just sort of have.

Donnelly's become a strong advocate for "truth in plea bargaining," which basically requires a factual basis for a plea.  He was rebuffed last year in his effort to amend the rules to require that, but if you want your client to plead guilty to felonious assault instead of gross sexual imposition so he can avoid the sex registration requirements, don't expect to do it in Donnelly's room.

His outrage over this was only increased by a recent case he handled.  A guy we'll call Bill had been charged twenty years ago with a bunch of counts of child rape, kidnapping, and gross sexual imposition.  A couple of days into trial, the State agreed to let Bill plead to a single count of misdemeanor assault.

That's right.  Misdemeanor assault. 

Continue reading "Truth in plea bargaining" »

Summer Break

Got a bunch of stuff to do over the next couple weeks, and with the slowdown in the courts, it's a good time to take a break.  I'll be back here on August 28.  See you then.

Continue reading "Summer Break" »

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Recent Entries

  • September 12, 2017
    What's Up in the 8th
    Prior consistent statements, whether State v. Hand is applied retroactively, and a big Coming Attraction
  • September 11, 2017
    Case Update
    Looking back at Melendez-Diaz, and the 8th goes 0 for 2 in the Supreme Court
  • September 8, 2017
    Friday Roundup
    Pro bono work, screwed-up appeals, and is Subway shorting their customers?
  • September 5, 2017
    What's Up in the 8th
    The barriers to expungement, jury verdict forms, and hybrid representation
  • August 31, 2017
    Constructive possession
    Constructive possession is 9/10ths of the law
  • August 29, 2017
    What's Up in the 8th
    A traffic stop found Samson Primm in possession of a few grams of marijuana, but he hires a lawyer and files a motion to suppress the stop. On the day of trial, the City asks to dismiss the case. Primm...
  • August 28, 2017
    Truth in plea bargaining
    So I got a brochure last week from Judge Donnelly over at the Common Pleas court. As you can see, it's a panel discussion on plea bargaining. The judge asked me to get out the word, so I just sort...
  • August 15, 2017
    Summer Break
    Got a bunch of stuff to do over the next couple weeks, and with the slowdown in the courts, it's a good time to take a break. I'll be back here on August 28. See you then....
  • August 11, 2017
    Friday Musings
    Drug trafficking, ADA lawsuit abuse, and e-filing
  • August 10, 2017
    Case Update
    Waiting on SCOTUS; two Ohio Supreme Court decisions