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 »


Dysfunction at the Junction, and other stuff

That the US 6th Circuit is given to internal squabbling isn't new; the "lack of collegiality" among the Circuit's 12 judges, presently 10 Republicans and 6 Democrats, was noted over five years ago in this newspaper article.  And the bitterly contested dispute over Secretary of State Jennifer Brunner's ruling on Ohio registration -- the court reversed her decision on a party-line vote, only to have the Supreme Court reinstate Brunner's holding -- resulted in everything short of an exchange of gunfire.

And things have gotten even weirder down in Cincinnati recently.   A few weeks back, in US v. Davis, the court handed down a decision in a Michigan case which appeared to involve nothing more than the question of the legitimacy of a traffic stop.   But instead, the court decided sua sponte (Latin for "because we feel like it") to strike down as unconstitutionally vague a Michigan law which makes it illegal to drive with objects dangling from the rear-view mirror so as to obstruct the driver's vision.  Orin Kerr over at the Volokh Conspiracy did a lengthy analysis of the decision, finding it largely unconvincing, but before you wade through his critique, you might want to know that ten days after the decision was handed down, the court withdrew it, no explanation given.

A more usual decision from the 6th is US v. White, in which the court affirmed the common practice in Federal courts of allowing a judge sentencing a defendant to give him more time based on conduct for which he was actually acquitted.  There are some recent Ohio cases dealing with this subject, so I'll do a full post on the subject sometime next week. 

Swann Update.  I did a lengthy post last year (do I do any other kind?) about the Supreme Court's decision in State v. SwannShort version:  defendant charged with murder, seeks to offer testimony of four people that another person admitted killing victim.  Statement against interest exception to hearsay rule requires trial judge to determine that testimony is reliable, judge here holds it isn't, excludes it.  Court of appeals reverses, with majority holding that "reliability" requirement is unconstitutional violation of defendant's right to present a defense, based on US Supreme Court case involving a situation not terribly analogous to Swann's.  Which is why it gets reversed by the Ohio Supreme Court.

At the time, I expressed concern that the court of appeals would get cold feet on the remand, not an unusual event for a court that's just been reversed.   They could take refuge in the appellate judge's best friend, Abuse of Discretion (along with his twin brother, Harmless Error):  the trial judge's decision on the reliability of the evidence was reviewable only for abuse of discretion, and they could simply hold that he hadn't abused it, and that would be that.  Well, they did review it for abuse of discretion, but decided that the judge had abused his and reversed the conviction,  remanding it back for a new trial.

So after all that, the prosecution is right back where it started.  True, they get a bad (for them) decision off the books, but the original decision had zero precedential value, given that it was a split decision, with the concurring judge agreeing only that the evidence was sufficiently reliable to warrant admission.

A couple more 1,000-word posts, and maybe I should register thebriecasesucks.com as a domain name...  One of my peeps, Brian Wilson over at The Bulls-Eye Blog, has an interesting post about a lawsuit Verizon recently filed against a cybersquatter.  Back in the day when the Internet was first becoming established as a commercial entity, people would run out and register domain names like www.ibm.com, and then turn around and offer to sell those names to IBM at outlandish prices.  (The iron law of supply and demand:  there can only be one www.ibm.com, and if you own it and IBM wants it, well...)  Congress put an end to this practice of cybersquatting a while back, imposing stiff civil penalties for persons who register business names with the intent of bidding them out to the business owner.  Brian points to a $32 million default judgment Verizon got against a cybersquatter, and wonders rhetorically whether it will have the Chamber of Commerce and its tort reform allies waxing indignant about the "litigation lottery."

There's a flip side to this cybersquatting, it turns out.  As this article notes, a study of Fortune 500 companies shows that "35% own the domain name for their brand followed by the word 'sucks.'"  That's a pre-emptive move, of course; if you own that domain name, disgruntled customers have one less avenue by which to vent their public wrath.

If you want to see what happens when a company doesn't exercise that degree of foresight, checmarleyk this out.

Truth in advertising.  For those of you who went to the movies on Christmas Day expecting a cheery comedy about a family and a dog...


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