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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Taking time off

I'm taking the week off.  Have a major brief due on Thursday, plus a trial in Federal court starting next Monday.  Plus, I'm pretty sure that Obama wiretapped me, too, so I'm working on getting to the bottom of that.

See you next week.

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What's Up with the 8th?

The 8th District cases come out every Thursday.  By about ten o'clock in the morning, the court will have posted the "weekly decision list" on its web site.  It will give a summary of the case, usually in a sentence or two.  By early afternoon, the actual opinions will have been sent down to Columbus, where they will be posted on the Supreme Court's web site.  A day or so later, they'll appear in Lexis.

Last Thursday's weekly decision list contained no fewer than a dozen criminal decisions.  Some of them, based on the summaries, looked promising.  So when I did my Weekly 8th District Roundup for the listservs for the state and local bar associations, plus a fair number of judges, and pulled up the Supreme Court's listing, my heart was resolute with the task to come, but my mind was eager with the anticipation of learning exactly why Jacob Flanagan's conviction and sentence were vacated because the trial court didn't conduct a competency hearing.

It wasn't on the Supreme Court's website.  None of the decisions from last Thursday are on there.  Nor are they on Lexis.  They've disappeared into the ether. 

Continue reading "What's Up with the 8th?" »

Rippo and Pena-Rodriguez

Damon Rippo was the subject a major bribery investigation by the Feds and the State prosecutor in Clark County, Nevada.

Wait!  It was Rippo's trial judge who was the subject of the investigation.  Rippo, on trial in a death penalty case, moved for the judge to recuse himself.  The judge told him that he did not know whether state law enforcement was involved, and the prosecutor confirmed that it was not.  Both statements were untrue. 

At this point, we'll take a brief time-out to raise the question that's probably occurred to you as well:  What the hell is a judge who everybody knows is the target of a Federal bribery investigation doing presiding over a capital case???

It gets better:  one of the people the judge was accused of fixing cases for was a witness against Rippo.

Continue reading "Rippo and Pena-Rodriguez" »

Case Update

One reason Federal sentences are so long is the Armed Career Criminal Act.  If you commit a crime with a gun, and you have two prior convictions for drug or violent offenses, you get an additional fifteen years in prison.

So what's a "violent offense"?  The statute gives several examples, such as robbery, but then concludes with what became known as the "residual clause":  a catchall definition that a violent offense is one which "involves conduct that presents a serious potential risk of physical injury to another."  Two years ago, the Supreme Court decided in Johnson v. United States that this was too vague, and struck it down.

Another reason Federal sentences are so long is the Career Offender designation under the Sentencing Guidelines.  We'll skip the math, but I recently had a case where my client was a career offender.  Without that, he faced a sentence of 77 to 96 months; the career offender designation boosted that to 188 to 235 months.

The definition of what constitutes a career offender is the same as for the ACCA.  Last year, the 6th Circuit struck down the residual clause of the career offender guidelines, for the same reason the Court killed it in Johnson.

So last Wednesday, the Supreme Court held in Beckles v. United States that there's nothing wrong with the definition in the Career Offender designation, because the guidelines are now advisory, and a sentencing factor which is discretionary with the judge isn't subject to void for vagueness analysis.  So a lot of Federal sentences are going to stay long.

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A switch in time

On December 23, 2016, the Supreme Court handed down its decision in State v. GonzalezGonzalez had been charged with cocaine trafficking, and the issue was whether the State had to show the pure amount of cocaine -- sans filler - to get more than a fifth degree felony conviction.  The court, by a 4-3 vote, held that the State did have to prove the pure weight.  Whether that was right or wrong doesn't really matter for purposes of our discussion.

Justice Lanzinger wrote the plurality opinion, joined by Pfeifer and O'Neal.  Kennedy concurred in judgment.  O'Connor dissented in an opinion joined by O'Donnell and French.

On January 3, the State filed a motion for reconsideration.

On Monday, the court granted the motion for reconsideration, and reversed itself, by a five to three vote.

So who changed their minds?  Nobody.  The difference was that Lanzinger and Pfeifer, two members of the original majority, were no longer on the court.  Their age had forced them into retirement, and they were replaced by Justices Fischer and DeWine.   And both of them voted with the State.

Continue reading "A switch in time" »

What's Up in the 8th

Sometimes it's bar shooting week in the 8th.  Sometimes it's consecutive sentencing week.  Apparently, last week was Beat Up Your Girlfriend Week.

It did not go well for defendants.

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

Case Update

Remember the "knock and announce" rule?  It was the common law rule that a police officer had to knock and announce his intentions before entering a home, even with a search warrant.  Eleven years ago, in Hudson v. Michigan, Scalia wrote an opinion holding that while the rule was constitutionally required, the exclusionary rule would no longer apply to it.

One of the big questions facing the Ohio Supreme Court is the application of the Ohio Constitution.  In a number of decisions, most recently State v. Mole (discussed here), the court has said that the Ohio Constitution is a document of independent force.  In a number of decisions, most recently (just a month later) in State v. Anderson (discussed here), the court has held that the provisions of the Ohio Constitution regarding "criminal rights" are co-extensive with the U.S. Constitution.

What ties those two paragraphs together is State v. Bembry, which was argued in the Supreme Court last week.

Continue reading "Case Update" »

Never mind

Today, the Ohio Supreme Court granted by a 4-3 vote the motion to reconsider its decision in State v. Gonzalez  (discussed here.)  That was a decision last December which held that in order for a defendant to be convicted of more than a fifth degree felony charge of possessing or trafficking in cocaine, the State had to prove the pure amount of cocaine.  By a 5-2 vote, the court changed its mind.  Purity is no longer required.

I'll have more on that later in the week.  Tomorrow I'll have the Case Update, and on Wednesday we'll take a look at the 8th District's cases.

Continue reading "Never mind" »

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Recent Entries

  • March 20, 2017
    Taking time off
    I'm taking the week off. Have a major brief due on Thursday, plus a trial in Federal court starting next Monday. Plus, I'm pretty sure that Obama wiretapped me, too, so I'm working on getting to the bottom of that....
  • March 17, 2017
    What's Up with the 8th?
    The 8th District cases come out every Thursday. By about ten o'clock in the morning, the court will have posted the "weekly decision list" on its web site. It will give a summary of the case, usually in a sentence...
  • March 14, 2017
    Rippo and Pena-Rodriguez
    SCOTUS issues decisions on judicial recusal and biased jurors
  • March 13, 2017
    Case Update
    A SCOTUS decision on career offenders, and appellate cases on what a judge can consider in sentencing, and untimely motions to suppress
  • March 9, 2017
    A switch in time
    The court reverses itself in Gonzalez
  • March 8, 2017
    What's Up in the 8th
    More sentencing stories, and the right way to handle an Anders brief
  • March 7, 2017
    Case Update
    Knock and announce and the Ohio Constitution, and Anders briefs.
  • March 6, 2017
    Never mind
    The Ohio Supreme Court reverses Gonzalez.
  • March 2, 2017
    Of bright lines and bookbags
    Oral argument in State v. Oles and State v. Polk
  • February 28, 2017
    What's Up in the 8th
    A good outcome in a search case, probably a good outcome (to be) in a drug case, and a very bad outcome in a child rape case