Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

Debt forgivance, post-Foster sentencing, and drug raids

Does this mean we'll get better plea offers?  Since 2003, Sen. Dick Durbin (D-Ill) has been pushing a bill which would provide up to $10,000 per year in debt relief on student loans to public sector lawyers in the criminal justice system -- prosecutors and public defenders.  You can read about it here.  The bill passed committee last year, but was squelched by the Senate leadership.  Durbin thinks that with the new leadership, it might have a chance.  Yeah, considering that he'll be the new assistant majority leader...

I got an email from an attorney yesterday who just had a client maxed out at five years imprisonment for a third degree felony.  The lawyer wanted to know if there was any argument he could make, post-Foster.  This is a subject that's coming up with increasing frequency, because some judges have concluded that Foster gives them unbridled discretion on sentencing. 

That's not true, and a few months ago I mentioned a couple of cases that might be helpful in that regard.  One of them is the 10th District's decision in State v. Knopf, discussed here, and the other is a recent 8th District case, State v. Colon, discussed here.  The short version is that while Foster negated the requirements for making findings before imposing more-than-minimum, maximum, or consecutive sentences -- which basically had become little more than talismanic ritual anyway -- it didn't affect RC 2929.12, which lays out the factors by which the judges are to evaluate seriousness of the crime and likely recidivism.  And it didn't affect RC 2929.11, which sets forth the purposes of felony sentencing, one of which is to ensure proportionality.

That's not to suggest that getting a sentence overturned is going to be a cakewalk.  But it does suggest that sentences at the far end of the spectrum -- consecutives or maximums -- could be subject to attack, especially if the judge fails to make a record, and if the sentence is disproportionate.  It's not a great option, but it's better than nothing.

Finally, the other day I mentioned the killing of the 92-year-old woman in Atlanta last week in a drug raid by a SWAT team.  That took a decidedly bad turn for the police in the last few days.  The woman, it turns out, was "only" 88, but that doesn't make much difference.  This does:

The confidential informant on whose word Atlanta police raided the house of an 88-year-old woman is now saying he never purchased drugs from her house and was told by police to lie and say he did.

The informant, who said he worked with Atlanta police for four years, also told WAGA-TV that he hadn't been to 933 Neal Street. His identity hidden, he told the TV station that one of the drug officers called him soon after the shooting with instructions.

Quoting the police officers, the informant told Fox 5 News: " 'This is what you need to do. You need to cover our (rear). ... It's all on you man. ... You need to tell them about this Sam dude.'"

I'm not sure whether the informant's being truthful about that; the warrant and affidavit, which you can read here, did specify that address, so unless there was some massive conspiracy to alter all that later, the CI's claim doesn't make much sense.  Then again, the police are in a bit of a bind arguing that the informant shouldn't be believed, because their reliance on his credibility is the reason that Kathryn Johnston is dead.  What's more, the affidavit makes it perfectly clear that the police had absolutely no basis for the search warrant other than a single buy of $50 in cocaine that afternoon -- no surveillance, no other reports, no other buys, zip, nada, nothing.

Search

Recent Entries

  • February 23, 2018
    Marsy's Law -- Restitution
    How the Victim's Rights Amendment passed last November affects restitution
  • 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...