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October 2007 Archives

Siler: Change of course for testimonial statements

The US Supreme Court's decision in 2004 in Crawford v. Washington probably was the most significant criminal case of the past decade.  The Court ruled there that, regardless of the hearsay rules, out-of-court statements could not be admitted if they were "testimonial."  Since Crawford was handed down, though, courts have struggled with the definition of exactly what constitutes a testimonial statement.  Last week, the Ohio Supreme Court ventured into that thicket again, in State v. Siler, and came to a substantially different conclusion from the first time they'd addressed the subject.

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New trials; throwing away the key

A couple of weeks ago, I discussed Geoffrey Feiger, a Michigan attorney notorious for his courtroom antics, and mentioned that he'd won a $30 million medical malpractice judgment here in Cuyahoga.  The trial judge was so upset with Feiger's conduct that he granted a new trial, but the 8th District reversed that and reinstated the verdict.  Last week, the Supreme Court reinstated the grant of a new trial, holding that the 8th District had applied the wrong standard of review.

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Case Update

Nothing from the gang in Washington during the past week, but several cases of note from their counterparts in Columbus.  The big decision was State v. Siler, dealing with whether a child's statements to the police qualify as "testimonial" under Crawford v. Washington.  I'll have a post discussing that in detail tomorrow.  The Supreme Court also reaffirmed that failure to submit a medical affidavit with the complaint in a malpractice case can be cured by later amendment of the pleading, and ruled that a court can't modify a shared parenting agreement simply because it finds that the modification is in the best interests of the child -- it must also find that there has been a change in circumstances. 

Finally, it reversed the 8th District, which in turn had reversed  the grant of a new trial in a medical malpractice case; the Supreme Court found that the appellate court had used the wrong standard of review.  I'll touch on that in a little more detail on Wednesday.  (Interestingly, that case isn't mentioned on the Court's web site.)  On to the courts of appeals....

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Oh goodie, more sentencing decisions

Some sentencing decisions have come down over the past couple weeks that I never got around to discussing, but I will now, because I need to get this out of the way so I can finish up a brief that I've been agonizing over for the last two weeks...

The first is State v. King, out of the 10th District.  Simple situation:  defendant appeals his conviction for agg robbery, felonious assault, and kidnapping, with gun specs.  The appellate court affirms the robbery and kidnapping, but reverses the felonious assault for insufficient evidence.  The trial court resentences the defendant, giving him the exact same sentence as when he'd been convicted of everything.  He takes that up on appeal, claiming that the sentence is excessive.  The court doesn't even reach that issue, holding that since the defendant didn't appeal the sentence in the remaining convictions in his first appeal, he can't do it now. 

This is a weird case, and almost certainly not the correct result.

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A duty to your client

I got volunteered to do a presentation on ethics at the meeting of the Cuyahoga Criminal Defense Lawyers Association in November, so I've been reading up on the new Ohio Rules of Professional Conduct, which replaced the old Code of Professional Responsibility in February.  In doing that, I've been struck by the fact that while the new Rules detail what our various duties are and to whom they are owed, it doesn't do a very good job of prioritizing them.

It seems to me that there's some need for prioritization, given the increased tendency of prosecutors, bailiffs, and judges to believe that the defense lawyer's first duty is to get his client to agree to a deal which will expedite the whole criminal process.

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Rules changes

Maybe one of the reasons the Supreme Court didn't hand down any decisions last week was because they were working on proposed changes in the rules.  Maybe not.  Anyway, here's the quick and dirty on the proposed changes:

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Miranda: A "knowing and intelligent waiver"?

Back in 1992, William Garner found a purse outside a hospital.  He went to the purse-owner's house, used the keys in the purse to break in, stole numerous items, and then set fire to couch because he thought he might have left fingerprints on it.  There were six children in the house; five of them died in the fire.  Garner was arrested shortly thereafter, and made a full confession to the police.  He was tried, convicted, and sentenced to death.

Six weeks ago, the US 6th Circuit reversed the denial of habeas relief, holding that the state hadn't shown that Garner understood his Miranda rights sufficiently, so that his waiver of them could not be deemed knowing and intelligent.

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Case Update

All quiet on the Western -- er, Columbus front last week, and no decisions out of the US Supreme Court either.  The latter did agree to add 17 cases to their docket this term; probably the biggest is one on whether states can require photo ID's for voting.  There are several important criminal cases as well, particularly on sentencing issues, such as how felony drunk driving convictions or state drug convictions qualify a defendant for enhanced sentencing under the armed career criminal statutes.  On to the courts of appeals...

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A little bit of this and that

Interesting postscript to the Ohio Supreme Court's decision in State v. Geeslin, which I discussed on Wednesday.  That was the case involving the due process ramifications of destruction of evidence by the police.  The seminal case on that subject was the US Supreme Court decision in Arizona v. Youngblood.  Youngblood had been convicted of raping a ten-year-old boy back in 1983, and the swabs taken by the hospital were inconclusive.  The police had taken other samples, though, but failed to refrigerate them, and they were lost.  An expert testified at trial that the lost samples could have exonerated the defendant, and the Arizona Supreme Court reversed, holding that the failure to preserve them was a due process violation.

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Oral statements; secret sentencing reasons

Has this ever happened to you?  You get the state's discovery back, and it indicates your client made no written or oral statements, and then the arresting officer gets on the stand and he tells the jury about how the defendant made all kinds of spontaneous remarks at the time of his arrest, confessing to dope possession, having a gun, robbing a bank the day before, and the Lindbergh kidnapping.  Has that ever happened to you?

Besides every trial, I mean.

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Destruction of Evidence

The other big case out of the Supreme Court last week was State v. GeeslinGeeslin had been stopped for a DUI, and the stop and arrest had been videotaped by the officer.  Subsequently, it turned out that the officer had accidentally taped over the portion leading up to the stop.  The defendant argued that the destruction of the evidence entitled him to a dismissal of the charges.  The trial court agreed, but the court of appeals reversed.

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Child Competency and Hearsay Statements

The first big decision out of the Ohio Supreme Court last week was State v. Muttart, a case in which the defendant had been convicted of three counts of raping his four-year daughter.  The trial court had allowed the doctors and nurses to testify to statements made to them by the daughter.  The appellate court had reversed one of the convictions, holding that before the hearsay statements could be admitted, the trial court had to determine that the child was a competent witness under Evidence Rule 601(A).

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Case Update

There were a couple of significant decisions out of the Ohio Supreme Court on Thursday.  One involved the admissibility of statements by a child to doctor in a child sex abuse case, and the other dealt with the due process ramifications of the destruction of evidence by the police.  I'll talk about the first one tomorrow, and the second on Wednesday.  Meanwhile, in the courts of appeals...

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Comments turned back on

I finally figured out a way to turn the comments feature on without getting bombarded by spam.  So, in keeping with Thursday's post about professionalism, you can call me a lying buttweasel to your heart's content.

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From the Mailbag: Supreme Court arguments

A faithful reader -- and their number is legion -- took me to task in an email yesterday for not mentioning that one of the cases up for oral argument this week in the Ohio Supreme Court was Hyle v. Porter. Mea culpa, as we say in the law biz. The case does indeed have serious ramifications in the unending quest to impose ever-more-restrictive limitations on where sex offenders can reside, which may reach its apogee if the City of Newton, New Jersey, goes through with its plan to take such restrictions to their logical conclusion: banning sex offenders from living anywhere in the city.

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Bad boys, what ya gonna do?

The lack of civility in the legal profession has been the subject of innumerable anguished articles in bar magazines for the past couple of decades or so, to the extent that the Ohio Supreme Court decided several years ago to mandate continuing legal education on the subject, tossing an hour of "professionalism" on top of the required ninety minutes on ethics and substance abuse.  But just when you thought it was safe to go back into the water, along comes a Michigan federal judge to remind us that your calling opposing counsel a lying buttweasel might have First Amendment ramifications.

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The Supreme Courts - What's going on

The Biggie before the Nine Robed Ones, of course, is the crack-cocaine case.  As most criminal lawyers know, Federal law provide a 100-1 disparity in sentencing:  you can get the same time for possessing 5 grams of crack cocaine as you can get for possessing 500 grams of powder.  At issue in the Supreme Court case is the fate or Richard Kimbrough, a former Gulf War vet who turned to dealing in crack.  He pled guilty to trafficking, and the Sentencing Guidelines would've given him a sentence between 19 and 22 years.  The judge labeled that "ridiculous," and instead handed down a slap on the wrist of a mere 15 years.  That wasn't good enough for the government, which appealed, nor the appellate court, which reversed the sentence on the grounds that the judge hadn't given a good enough reason for such a large downward departure. 

So apparently, the Supreme Court is going to have to decide whether adequate grounds for departure are "this law's so stupid it makes my bones hurt."

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Ohio Supreme Court Update: Mold & Sovereign Immunity

There are a number of things going on in the Supreme Court, both in Ohio and the US, and today I wanted to follow up on a couple of rulings from the latter last week.  Tomorrow I'll touch on some pending cases before both.

The first case from last week is Terry v. Caputo, which involved one of the new faves in personal injury law, mold; the issue was the expert testimony necessary to get past summary judgment.  The plaintiff's expert had testified that mold in general can cause the health problems from which the plaintiffs suffered, but the trial court concluded that the expert's testimony as to specific causation in this case didn't meet acceptable scientific standards.  The court of appeals agreed, but reversed the grant of summary judgment, holding that the remaining evidence created a "genuine dispute of fact."

The Supreme Court reversed that, and, as I said, the holding is pretty simple:

Continue reading "Ohio Supreme Court Update: Mold & Sovereign Immunity" »

Case Update

The big national legal news over the past week, of course, was Britney Spears losing custody of her children.  Jeez, who coulda seen that coming, huh?  In Ohio, the man-bites-dog story was the Supreme Court's reversal of a death penalty case; the prosecutor had failed to turn over police reports implicating someone else in the crime, and the defense lawyers should have argued that the defendant's wife couldn't testify.  The Court did affirm a death penalty case, too, just to make sure that the earth didn't fall off its axis.

There were a couple of civil cases of note, too, one affecting how appeals in sovereign immunity cases are handled, and another dealing with expert testimony on medical causation.  I'll do a post later this week on cases that are pending in the Supreme Court, and I'll discuss those there.  On to the courts of appeals...

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A fresh look at polygraph evidence?

There's probably no better example of the "he said/she said" case than one of date rape.  There are no witnesses, at least direct ones, and forensics aren't much help, since the defendant admits that sex occurred.  Wouldn't it be nice to be able to reliably determine who was telling the truth?

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Sex molestation and copycat indictments

It used to be that when I was sitting over at the Justice Center, waiting around for a pretrial in a criminal case, and I'd hear the bailiff say disparagingly about a criminal defense lawyer, "Oh, he never shows up until eleven," I'd think, thank goodness I don't have a reputation for that sort of thing.  Then the other day I realized:  those lawyers are the smart ones.  In the vast majority of cases any more, there's nothing you're going to get done at nine or ten that you couldn't get done at eleven, and in most cases you're not going to get anything done until eleven anyway, so why bother showing up before then?

There's been extensive talk about how to get Cuyahoga County's court system to work better, and that's all it's been:  talk.

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Hassler and blood/alcohol testing

Back in 1987, Rozanna Lucas got into a car accident.  A sample of her blood drawn at the hospital showed she had a blood/alcohol level over the legal limit.  One problem:  the test was taken 2 1/2 hours after the accident, and the law provided that the results were admissible only if the test was taken within two hours of the alleged violation.  In Newark v. Lucas, the Supreme Court upheld the admission of the test results, drawing a distinction between the two types of driving while intoxicated offenses.  The first requires proof of impairment:  the state has to prove your ability to drive was impaired by alcohol.  The second offense is a per se violation:  you're guilty simply if you have more than the permitted blood/alcohol level.  The Court held that a reading outside the 2-hour time limit couldn't be admitted to prove the per se offense, but, with expert testimony, could be admitted to prove the impairment offense.

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Case Update - Courts of Appeals

In civil cases, the 1st District reverses a trial court's dismissal of a medical malpractice complaint.  The plaintiffs' decedent had fallen, and subsequently died of her injuries; the plaintiffs attached to their complaint an affidavit from a nurse stating that the defendant's nursing staff was negligent in permitting the fall which caused the injuries.  The appellate court indicated that the affidavit might not be sufficient to get past summary judgment, particularly on the causation issue, but it was enough to meet the requirements of Civ.R. 10(D)(2), which mandate that a complaint has to be supported by an affidavit from a medical professional...

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Case Update - Supreme Court Edition

The Gang of Seven in Columbus was busy this week, handing down four major decisions on Wednesday, and then another three on Thursday for good measure.  Most of them are fairly significant decisions, too, so I'm going to break up the normal Case Update I do on Mondays.  Today we'll just cover the Supreme Court decisions; tomorrow I'll do the court of appeals cases.

Continue reading "Case Update - Supreme Court Edition" »

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