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 »


Girls just wanna have fun

You know that old Woody Allen line about how 90% of life is just showing up?  That's particularly true if the place you're supposed to show up is the Probation Department.

I had the sentencing this morning of a client we'll call Sharon, who'd been convicted back in July of running a scam on some elderly guy.  This wasn't her first brush with the law, but the judge is a decent guy, and she'd been clean for about ten years, so she had a good chance of getting community control sanctions.  Or would have, if she'd shown up at the probation department for her presentence report.  They finally caught up with her last week.

I pitched the judge on the idea of keeping her in jail for a couple weeks so they could get an expedited PSR together, and he could still give her probation.  He gave me the "yeah, that could happen, if we were in a parallel universe where I was a complete schmuck" look, and gave her twelve months.  He told her that he'd consider judicial release after six.  While they were taking her away, I gave her a card and told her to write me in six months and I'd file the motion for judicial release.  In that short interval, she'd figured out if the judge did give it to her, it would mean she'd be on probation to him, rather than on post-release controls to the parole authority, and she wanted no part of that.  "No, I'll do the 12 months," she yelled back at me as closed the door to the holding area.  I looked up at the judge.  "Well, I guess you did something to piss her off, huh?"  He laughed.

As you've probably figured, this is not going to be a day for discussing the fine points of some arcane legal issue here.  Instead, we'll take a look around the web for some "personal interest" stories.  We can lead off with one about the Handshake Assaulter, a female attorney so upset with the outcome of a hearing in a Federal criminal case that she insisted on shaking hands with the prosecutor, and almost ripped the latter's arm out of her socket.  She's charged with assaulting a federal officer, a misdemeanor punishable by up to a year in prison.  Perhaps the weirdest part of the entire story -- and there were several nominees for that award -- is that she was required to post a $100,000 bond. 

Of course, there's weird, and then there's weird, like the opening line from this story, courtesy of How Appealing:  "Federal appellate Judge Jay S. Bybee has denied a plaintiffs' motion to recuse himself from hearing an excessive-force appeal in a notorious case involving a sack of steak fajitas."  The grounds for the motion were that Judge Bybee couldn't be fair in the case because, while a member of the Bush administration's Justice Department, he had issued a memo substantially narrowing the definition of torture, and the plaintiffs figured that torture was sort of like excessive force, and so....  No, I am not making this up.

Finally, there's weird, and then there's weird, and then there's... well...  Last year, I mentioned that the 11th Circuit had upheld an Alabama law prohibiting the sale of devices deisgned "primarily for the stimulation of human genital organs," the decision coming out, coincidentally I'm sure, on Valentine's Day. The 5th Circuit had come to a similar conclusion in 2006 regarding a Mississippi law banning the sale of dildoes, a decision that led to one blog's memorable headline, "When dildoes are outlawed, only outlaws will have fun." 

Well, the other day a different panel of the 5th Circuit struck down a Texas law prohibiting the sale of sex toys.  Of course, since there's now a conflict between the circuits, the Supreme Court might have to step in to -- ahem -- straighten things out.  Up to this point, one of my favorite moments of legal history was when Senator Orrin Hatch asked Clarence Thomas during his confirmation hearing, "Have you ever uttered the name, 'Long Dong Silver'?"  Watching Thomas during oral argument on this case, should it ever get that far, would probably vie for that designation.  My guess is that Thomas would finally break his legendary silence in oral argument, if only to offer some -- ahem -- pointers.


Recent Entries

  • April 26, 2017
    Like Mark Twain, rumors of my demise have been greatly exaggerated. Except I am pretty sure he's actually dead, while I am not, and for that matter, nobody's spreading rumors that I am. Great lead, huh? The nice thing about...
  • April 20, 2017
    The Supreme Court takes a look at the trial tax
    And you thought this was the week you only had to worry about income taxes
  • April 18, 2017
    What's Up in the 8th
    Remembering Warren Zevon, and the Fourth Amendment lives
  • April 17, 2017
    Case Update
    Structural error, prejudice, and police run amok.
  • April 13, 2017
    Some arguments on sentencing
    Why oral arguments can be fun, even when they're not yours
  • April 12, 2017
    What's Up in the 8th
    Oh fun: declarations against interest v. non-hearsay. Also, the difference between not guilty and innocent, and Ohio's statute penalizing the refusal to take chemical test in a DUI case goes bye-bye
  • April 11, 2017
    Case Update
    Filibusters, and appellate cases on all the ways lawyers can screw up.
  • April 7, 2017
    Change of course
    A new approach in my client-attorney relationships
  • April 4, 2017
    What's Up in the 8th
    A true rocket docket, and Anthony Sowell pops up again
  • April 3, 2017
    Case Update
    Free merchant speech, an argument on Brady, another look at Creech