The Briefcase by Russ Bensing | Musings by an Ohio criminal lawyer

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What's Up in the 8th

I've often mentioned that criminal appellate work is not for those with self-esteem issues, but appealing from municipal court decisions might rescue you from despondency:  so far this year, muni prosecutors have posted a solitary win out of six decisions in the Eighth.  The latest loss comes in Cleveland v. EdwardsEdwards had been in jail for two months for violating a protective order, and when on the day of trial the prosecutor asks for a continuance, Edwards expresses a desire to resolve the matter.  This is the entirety of the ensuing plea colloquy:

THE COURT: Do you want to plead no contest to Docket Number 16?

THE DEFENDANT: Yes, if it's going to resolve this. I'm trying to get this resolved.

THE COURT: I'm going to bring it back for sentencing 2-8-17. I'm going to give you a personal bond and let you out of jail today.

No indication of what "Docket Number 16" means, no explanation of the nature of the offense, no explanation of the effects of a no contest plea, and Edwards never actually entered a plea.  I know Cleveland muni judges have a hundred or so cases every day, but there's only so many corners you can cut. 

But the court's beneficence extends beyond muni court cases; even excluding those, defendants have gone 9-6 over the past two weeks, a record that Browns' coach Hue Jackson would gladly sacrifice a kidney for.  And maybe two.

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Two more to death row

Here's a fun idea for a drinking game.  Read the opinion the Supreme Court's opinion last week in State v. Clinton, and down a shot every time you come across the phrase "overwhelming evidence."  Clinton raises twenty-three propositions of law from his conviction and death sentence, and you'll be hammered by the time you get to Number 12.

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En banc on sentencing

A jury decided that Randy and Clarissa Jones killed their twelve-year-old daughter by failing to get her medical treatment.  A judge decided that warranted a 10-year sentence for each of them.  A panel of the 8th District decided that a ten-year sentence was too much.  The 8th District decided to have an en banc hearing on the scope of what an appellate court can do in reviewing a sentence.

Last week's decision in State v. Jones did provide some clarity, but it's not likely to be the last word.

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SCOTUS and the Fourth

Some people just know how to party, and those attending a bash in the northeast section of Washington, D.C. a decade ago certainly did.  Strippers, alcohol galore, marijuana, people having sex upstairs; a pretty good time, unquestionably.  At least until the cops showed up.

But it got better for Theodore Wesby and 15 others.  They were arrested and charged with disorderly conduct.  Although the charges were dropped, they decided to do what any red-blooded American would do:  they sued under 28 USC 1983, claiming their rights had been violated. 

A jury gave them a million dollars, but the Supreme Court reversed a few weeks back in District of Columbia v. Wembly.  

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What's Up in the 8th

If you're engaging in self-flagellation because you've developed an unhealthyTriple Whopper.jpg fondness for Burger King's Triple Whopper (nutritional info:  you do not want to know), take some comfort in the fact that it might get you out of a DUI.

One of the benefits of doing this blog is that I constantly learn things I didn't know.  When a cop stops you and suspects you've been driving drunk, he can have you perform field sobriety tests, like the One Leg Stand test, which is self-descriptive.  The National Highway Traffic and Safety Administration prescribes how those tests are to be done; if they not done in "substantial compliance" with the regulations, out they go. 

One of the requirements is that before performing the OLS test, "the officer must inquire as to whether the suspect has a bad back, leg problem, inner ear problem, and must also determine if the suspect is more than 50 pounds overweight."  In Rocky River v. Bucci, the officer never made that inquiry, and there are problems with the other FST's, so they all get tossed.  

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Friday Roundup

It's for the children.  Under Ohio law, if you commit a drug trafficking offense within 1,000 feet of a school, it elevates the offense level by one degree.  A felony three, which would be punishable by a maximum three years in prison, becomes a felony two, with up to eight years in prison and a presumption that the judge should send you there.  And keep in mind that "trafficking" doesn't necessarily mean "selling."  For a while, the Cleveland police were charging anybody who possessed more than three dime bags of marijuana with trafficking under the "prepare for distribution and sale" subsection.

It's for the children, of course.  School is hard enough; we don't want our tykes saddled with a lifetime of addiction because somebody slung dope at them during recess.

I'd guess that probably at least a quarter of the drug trafficking cases I've handled included school specs.

Know how many cases I've handled that involved people selling drugs to children?  The next one will be the first.

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A tale of three cases

You have an appeal of right to the 8th District Court of Appeals, as well as the other district courts.  You don't have an appeal as of right to the Ohio Supreme Court.  They don't have to let you in.  And even if they do, they can kick you out without deciding the case.  That's known as being DIA'd -- the case is dismissed as improvidently allowed.  It means that while the court initially thought your case was important enough to consider, they've changed their minds, and don't want to bother with it.

The court decided one case yesterday, and DIA'd the other two.  It's hard to figure out why the first one made the cut, and the other two didn't.

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What's Up in the 8th

It used to be that I preferred that my clients remain in jail pending trial.  Not because I'm a bad person, but at least that way their chances of picking up another case were minimized.

I've changed my mind about that, because it's become increasingly apparent that among the 1,000 inmates in the county jail, a great majority are more than willing to tell my client everything I'm doing wrong.  The new Big Thing is the Motion to Disqualify Counsel, a form template which appears to be circulating in the jail, with the aggrieved defendant filling out the caption and then a paragraph or two detailing his litany of woe with his attorneys. 

Success on this front is not easy:  according to State v. Hill, good cause for removal "exists only where there's a conflict of interest, a complete breakdown of communication, or an irreconcilable conflict that could cause an apparently unjust result."  Hill's complaint appears to be that his lawyers aren't telling him what he wants to hear, and that doesn't cut it.  

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Recent Entries

  • February 20, 2018
    What's Up in the 8th
    A search decision, more "policies," and why a seminar for muni court judges on taking pleas might be a good idea
  • February 14, 2018
    Two more to death row
    A couple of death penalty decisions from the Ohio Supreme Court
  • February 12, 2018
    En banc on sentencing
    The 8th looks at the appellate court's role in reviewing sentences
  • February 8, 2018
    SCOTUS and the Fourth
    A couple of upcoming Supreme Court decisions on search and seizure
  • February 5, 2018
    What's Up in the 8th
    The benefits of appealing muni court cases, lecture time, and when you absolutely, positively, cannot raise arguments about manifest weight and sufficiency
  • February 2, 2018
    Friday Roundup
    School specs and sovereign citizens
  • January 31, 2018
    A tale of three cases
    The Ohio Supreme Court decides one case, and decides not to decide two others
  • January 29, 2018
    What's Up in the 8th
    Getting rid of an attorney, no contest pleas, and probation conditions
  • January 26, 2018
    Friday Roundup
    Information society. Last week I did a post about Aaron Judge and the lack of hard data in the field of criminal law. We have mainly anecdotal information on what kinds of sentences judges hand down, we have no idea...
  • January 24, 2018
    A win in a search case
    Analysis of the Supreme Court's decision in State v. Banks-Harvey