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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Strategic choices

You can't always tell from oral argument, but here's when you can:  you're the respondent in a disciplinary matter, and you're arguing in the Supreme Court, and you hear the chief justice tell disciplinary counsel how this is the worst form of the offense, and question him about why he recommended only a stayed suspension.

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Case Update

No need to worry about the politico-legal conflagration that awaits when Congress opens its confirmation hearings on whomever President/Twitterer-in-Chief Trump sends up to them in January to fill Scalia's seat, which has been vacant since sometime right after the Cuban Missile Crisis, I think.  The partisan deadlock which seems to have engulfed the Court since Scalia's passing has apparently evaporated, producing the first opinion of the term, a unanimous one in Bravo-Fernandez v. US, on the Double Jeopardy Clause.  As with many Supreme Court decisions, this doesn't lend itself to easy summation.  Since there wasn't much from the 8th District last week, we'll talk about Bravo-Fernandez tomorrow.

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Friday ruminations

All about me.  Ever have one of those months where you sit there on the first, look at all you've got to do, and say, "Well, if I can just get through this month, things should ease up a bit."  I'm been having one of those months since July.  Not really complaining; business is good.  Unfortunately, I've noticed that the correlation between how hard you work and how much money you make often tends to be an inverse one.

Got another tough one coming up, but I'm going to try to spend a little more time here.  I've been writing a lot of briefs (about 90 pages of them this month), and I like doing that, but I like writing here more.  Less formulaic.  Besides, I can't post links to pictures of nekkid wimmen in my briefs.

Oh, jeez, that didn't come out right, did it?

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What's Up in the 8th

For a while there, the 8th District had developed a record of tossing out aggravated murder convictions for insufficient evidence of prior calculation and design.  There were about six of them in a two-year span, sufficient to produce a level of controlled rage in the appellate division of the prosecutor's office; they appealed every one, each memo in support of jurisdiction enumerating the other cases as proof that the 8th had gone rogue.

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What's Up in the 8th

As if there's not enough to complicate my life - and, as you know by now, it's all about me - the 8th came down with two big decisions on no contest pleas, and they're both named State v. Williams.  And they came down with two decisions on reconsideration, so I had to go back and read the original decision to figure out what they changed.  And I had to Google "chitterlings" when reading one opinion.

Oh, well, enough whining.  (See previous post; notice a trend?)  Time to put on my big boy pants and get on with this.

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Days of Whine and Roses

A bunch of states legalized recreational marijuana use last week, and, as one commentator observed, it's probably a good thing, because a lot of people are going to need it after the election results.

I don't have much time for recreation of any sort.  The OACDL death penalty seminar is this week, and despite never having represented a defendant in a death penalty case, I'm making two -- count'em, two -- presentations.

One of them is on oral argument in the Supreme Court.  "We figured nobody has more experience with Supreme Court arguments than you do, Russ," said the person who recruited me for the topic.  True that, if he meant, "We figured nobody in your office has more experience with Supreme Court arguments than you do, Russ."  I had three this year.  I had one in the previous five years.

At any rate, I think I've put together a pretty good show, and I'm pretty sure my use of sock puppets to simulate an actual oral argument is sure to be a crowd-pleaser.

Then the next morning, I do my annual "case update," where I tell everybody about the HORRRible decisions that have come out in the past year, the only limitation placed on my recitation of them being that the presentation is only an hour and a half.

So I've got to finish up on that.  (I've got most of the case update done, but broke down in tears when I got to the

And then there's the brief I've got dye on the 28th in the 5th District, from a trial involving a transcript of 1,600 pages.  That's after just finishing a brief on a 1,400 page transcript, working on another one of 900 pages, and after I get those done, there's a brief in an aggravated murder case awaiting me, with a transcript of 1,700 pages.

Plus, the sun's in my eyes, and the other team isn't playing fair.

Which is a roundabout way of saying that I don't' have any posts for this week.  I'll have one for next week, as I make my preparations for Thanksgiving dinner, and then will resume my normal schedule the following week. 

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Deterrence theory and prosecutorial misconduct

I got into an argument with several lawyers - well, more of a discussion, because as you all know, we lawyers don't get into arguments - about a post I did a couple weeks back.  It was about an oral argument in the 9th Circuit, where a prosecutor who argued the case got raked over the coals because the prosecutor who tried the case lied during the trial.  My friends were unimpressed.  Big deal, so the prosecutor had to spend 15 minutes being uncomfortable.  That's going to change anything?

Yes it would, I insisted.  It's like the 4th Amendment's deterrence theory:  cops know that the evidence they seize will get thrown out if it's the result of an illegal search, so they don't make illegal searches.

Okay, bad example.  Like I said, it's a theory.

And I figured that this would work the same way.  If malfeasance, in the form of misconduct, were made public, prosecutors' offices would penalize those miscreants.

Like I said.  It's a theory. 

Carmen Marino and Eddie Walsh go a long way toward disproving it.

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What's Up in the 8th

If you want to plumb the depths of the absurdity of Ohio's sentencing law, look no further than the 8th District's decision last week in State v. Vinson

Vinson was 18 years old, but the ferocity of his criminal activities belied his tender years.  During a twelve-day period in 2014, he and a codefendant conducted a home invasion, robbed a cell phone store, robbed two food marts in a single day (stomping on the head of one of the customers), shot a man five times, necessitating the victim having one of his eyeballs surgically removed, and robbed a convenience store.

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Recent Entries

  • December 8, 2016
    Strategic choices
    You can't always tell from oral argument, but here's when you can: you're the respondent in a disciplinary matter, and you're arguing in the Supreme Court, and you hear the chief justice tell disciplinary counsel how this is the worst...
  • December 5, 2016
    Case Update
    No need to worry about the politico-legal conflagration that awaits when Congress opens its confirmation hearings on whomever President/Twitterer-in-Chief Trump sends up to them in January to fill Scalia's seat, which has been vacant since sometime right after the Cuban...
  • December 2, 2016
    Friday ruminations
    More whining, the yin and the yang of appellate law, and good news, in moderation
  • November 29, 2016
    What's Up in the 8th
    Bad defendants, prior calculation and design, and a Terry stop.
  • November 22, 2016
    What's Up in the 8th
    No contest pleas, second thoughts, and weird food
  • November 15, 2016
    Days of Whine and Roses
    Excuses, excuses
  • November 10, 2016
    Deterrence theory and prosecutorial misconduct
    Punishing bad prosecutors
  • November 8, 2016
    What's Up in the 8th
    Don't you get tired of me writing about sentencing decisions. Don't you think I get tired of writing about them?
  • November 1, 2016
    What's Up in the 8th
    Ineffective assistance and rape cases, topped off with a creamy layer of sentencing decisions
  • October 30, 2016
    Monday Roundup
    Drugged driving, rogue BCI analysts, and a must-view oral argument on prosecutorial misconduct