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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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.

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Friday Musings

The Drug War.  The US Sentencing Commission, like every other government agency, publishes comprehensive reports at the end of the year.  The USSC, in their effort to aid the reading public, also publishes a "Quick Facts" broadsheet about particular offenses.  Here's the one for drug trafficking, which tells us little that surprises.  Crack is no longer A Thing; only 8.1% of Federal cases involve that drug.  It's been greatly surpassed by meth, which comprises a third of all prosecutions.  Whites and blacks are charged with about the same frequency; the heavy lifting is done by Hispanics, who account for over 50% of drug trafficking prosecutions.  The Mexican connection to drugs is on vivid display, and not only by that; the top five districts for trafficking are in the southwest.

Next year's stats should be interesting.  Over sixty percent of drug traffickers received a below-guidelines sentence; much of that came at the request of the government (in other words, the defendant squealed on someone else), but in a quarter it came without that request.  New Attorney General Jeff Sessions had announced a harder DOJ position on drugs -- at least, he did before he became President Trump's punching bag -- so we'll see how that goes.

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Case Update

Less than two months until the Supreme Court launches its 2017 Term.  Mark your calendars.  The Court's already accepted over 30 cases for next year; the next big news on that front will come on September 25, when the Court has its "long conference" to look over the petitions that have accumulated during the summer and pick which ones are worthy of the Court's time. 

One of them might be Final Exit Network, Inc. v. Minnesota.  Final Exit Network and its primary publication, "Exit Guide," are not intended to aid movie-goers in finding their way out of a movie theater in the event of a fire or similar calamity; they exist to "provide information, education, and counseling to Network members who have decided to terminate irremediable suffering."  Doreen Dunn availed herself of these materials, and her self-induced demise resulted in Final Exit's prosecution under a Minnesota law which prohibits assisted suicide.  Final Exit did not commit any physical acts, so the case presents a free speech issue. 

The Court's been very First Amendment-friendly in recent years, and not-so-recent, for that matter:  it's struck down laws prohibiting marketing of violent video games to minors, falsely claiming that you got military medals, prohibiting videos of animal cruelty, and, just last term, allowing the patent office to reject offensive trademarks.  Given that, I don't see much hope for the Minnesota law, but it sure should draw some interesting amicus support on both sides.

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Two on allied offenses

In Cuyahoga County, the individual floor prosecutors don't have the authority to make a plea bargain.  They have to take it to a supervisor for a "mark" on what plea they're allowed to offer.

You can bet the supervisors are going to get a memo about the 8th District's decision in State v. Esper.

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Thursday Ruminations

Hey, it could happen.  We all have our sentencing stories.  The guy who turned down the plea, then got hammered when he lost at trial.  The case where we drew the toughest judge on the bench for child porn cases, and the client got double-digit time, where he would have drawn low single digits, or even probation, if he'd been assigned to another judge.

There was a provision in the 1996 Ohio sentencing reforms that made "consistency" one of the principles and purposes of sentencing.  For good reason.  The law must be fair, and must appear to be so.  Respect for the law is diminished when a defendant's sentence depends on the name of the judge he drew in the arraignment room, or when co-defendants' sentences may vary wildly based on whether one of them exercised their constitutional right to trial.

Well, here we are, two decades later, and we still have our sentencing stories.  Consistency doesn't mean uniformity, the courts have held, and we certainly buy that:  there's no valid reason why everybody convicted of aggravated robbery should receive the same sentence.  But consistency should mean that defendants with similar criminal histories and who committed crimes under similar factual circumstances should get similar sentences.  That doesn't happen.

But it could, argue the authors of this article (h/t to Sentencing Law & Policy), if sentencing was done by computer.

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8th District Roundup

One thing that doing this blog has taught me is how much the law changes.  The US Supreme Court's decisions in Blakely v. Washington and Crawford v. Washington have dramatically altered the right to jury trial and confrontation, respectively.  The law on allied offenses has undergone three major changes in the past decade.  Sentencing law went through a major transformation with the reforms in 1996, another with the Ohio Supreme Court's 2006 decision in State v. Foster, and another with the sentencing reform package in 2011.

New trials for newly discovered evidence?  Not so much.  The lead case on that is State v. Petro, handed down the same year that The Harmonicrats "Peg O' My Heart" was edged out by Francis Craig's "Near You" on the Billboard 100 for 1947. 

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Friday Roundup

Justice served.  Not much question that Richard Wesley got a raw deal.  He was a counselor at an elementary school in Kentucky, and periodically counseled a seven-year-old boy who had various psychological and behavioral problems.  One day, Wesley was notified that the boy was attempting to harm himself, so he brought the boy into his office where he waited with two other students while Wesley called the boy's mother.  The mother picked him up, and on the ride home from school the boy told her that Wesley had sexually assaulted him.

And that when Wesley's life went to shit.  Detective Joanne Rigney got involved, and the boy's story evolved:  he now claimed that Wesley had sodomized him on numerous occasions during the school year, and had sexually abused two other students.  In his original story, the boy claimed that Wesley touched his "private part" over the top of the boy's clothes on the day in question, but later claimed that Wesley had taken the boy's penis out of his pants.  And still later claimed that Wesley had pulled down his pants and "put his private part in my butt."  Rigney signed an affidavit including all this, and the magistrate issued an arrest warrant for Wesley.

Even a minimal investigation would have shown Rigney that there was no basis for the boy's claim.  There was no medical corroboration, and interviews with 32 other student who had contact with Wesley revealed no inappropriate behavior by him.  More critically, the door to Wesley's office was open during the entire time the alleged assault was to have taken place, and Rigney didn't even bother to interview any of the employees who could have easily seen the abuse if it had taken place.  And that's before we even get into the boy's history of psychological disturbances.

Wesley wasn't acquitted at trial; the case was so bad the state eventually dismissed it.

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Supreme Court Recap - 2016 Term

Welcome to my annual recap of SCOTUS criminal cases from the past term.  The link in the case names is to the SCOTUSblog site, where you can access their analysis, as well as the docket, which has further links to the briefs were filed in the case.  I'll give a brief synopsis of the case, and links to the actual opinion and the blog posts where I discussed the case.  

One note:  this doesn't include all the criminal cases, only those which I think will have interest to the people who read this blog.

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Recent Entries

  • 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
  • August 7, 2017
    Two on allied offenses
    A look at the 8th District's latest decisions on allied offenses
  • August 3, 2017
    Thursday Ruminations
    Computerized sentencing, lawyer ads, and songs from the past
  • August 1, 2017
    8th District Roundup
    One thing that doing this blog has taught me is how much the law changes. The US Supreme Court's decisions in Blakely v. Washington and Crawford v. Washington have dramatically altered the right to jury trial and confrontation, respectively. The...
  • July 28, 2017
    Friday Roundup
    The better part of discretion
  • July 26, 2017
    Supreme Court Recap - 2016 Term
    My annual review of the Supreme Court decisions from the past term
  • July 24, 2017
    What's Up in the 8th
    Some things we knew, some things we didn't
  • July 21, 2017
    Friday Roundup
    Computers and sex offenders, civil forfeiture, and phrases that should be put out to pasture