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 »


Friday Roundup

Rich oxen getting gored.  Sentencing Law & Policy points us to a recent NY Times article, which begins:

In the next several months, the Supreme Court will decide at least a half-dozen cases about the rights of people accused of crimes involving drugs, sex and corruption. Civil liberties groups and associations of defense lawyers have lined up on the side of the accused.

But so have conservative, libertarian and business groups. Their briefs and public statements are signs of an emerging consensus on the right that the criminal justice system is an aspect of big government that must be contained.

That the federalization of criminal law has gotten out of hand is not news to most of us in the criminal bar; I did a post on it back in January, mentioning a recent Cleveland case where a defendant was federally prosecuted under the Hobbs Act for stealing $538 from a Little Caesar's pizza.  The post led with the 4th Circuit's decision in US v. Comstock, which struck down a new statute empowering the Attorney General to certify that a prisoner was "sexually dangerous" and prevent his release; the 4th held that such "civil commitments" intruded upon an area traditionally reserved to the states.  The Supremes granted cert in Comstock, and the case will be argued in early January. 

I'm certainly glad to see conservatives rushing to join forces with us, but I can't help but wonder if some of this is due to the focus being brought to bear on the criminality in executive office suites leading up to the economic debacle we're still going through.  The whole thing largely confirms the observation that if a conservative is a liberal who's been mugged, a liberal is a conservative who's been arrested.

Maricopa County update.  A fewweeks ago, I mentioned the firestorm that had engulfed the legal blogosphere after a video of a court hearing in Maricopa County, Arizona, surfaced, showing a sheriff's deputy rifling through a defense attorney's file while she was at the podium addressing the judge.  (Video here.)  The latest news is that the deputy was found in contempt of court and ordered to publicly apologize to the lawyer, or go to jail.

This was too much for County Sheriff Joe Arpaio, who bills himself as "America's Toughest Sheriff":  insisting that his deputy was "just doing his job," Arpaio swore he wasn't going to "allow him to be thrown to the wolves by the courts because they feel pressure from the media in this situation." 

Arpaio, the kind of guy who gives fascism a bad name, is already being investigated by the Justice Department for numerous civil rights violations, and is accused of using his powers to go after political enemies.   The scary thing is he's probably right:  in Maricopa County, it may well be that one of a deputy's duties is trashing the principles of right to counsel and attorney-client confidentiality.  joar2

But Arpaio turned out true to his word:  the deputy refused to apologize, and on Tuesday began serving his jail sentence.  So is the deputy doing his time in Tent City, pictured at right, the annex to the county jail that Arpaio set up to house the common riffraff?  Not likely.  As indicated in this article, Arpaio keeps a "celebrity wing" at the regular jail.  As the article notes, one Phoenix businessman got to serve his time on a DUI charge in the "Mesa Hilton" after his father donated $10,000 to Arpaio's re-election campaign.  I doubt if the deputy will manage that, but he doesn't have to.

The march of technology.  As all lawyers know, the Ohio Supreme Court mandates that we receive 2½ hours of continuing legal education on ethics, professionalism, and substance abuse every two years.   The Cuyahoga County Defense Lawyers Assocation gave its annual seminar on the subject a few weeks ago, and there was no end to the things I learned.  Among them:  should my office-mates decide to stage an intervention with me, with the help of a counselor from the Ohio Lawyers Assistance Program,  there is a 95% chance that I will leave with the counselor and go directly into treatment.  This sounded a bit high to me, and I'm thinking of developing a substance abuse problem just to test it out.

The speaker on professionalism was Judge Colleen O'Toole of the 11th District Court of Appeals, and she devoted most of her presentation to the increasing role that technology plays in legal matters.  Not the technology that most of us think of, like Lexis and computerized dockets, but the technology of "the masses":  Facebook, Twitter, and so on.  The effect of those on jury trials is becoming notorious, as this article demonstrates:

The first mistrial Cuyahoga County Common Pleas Judge John Russo declared in his courtroom wasn't because of a hung jury, improperly admitted evidence or a procedural error.  It happened, in large part, because of a text message. An attorney in another Ohio jurisdiction called Cuyahoga County Prosecutor Bill Mason's office reporting that her sister, who was serving jury duty on the felonious assault case in Russo's courtroom, had texted her with a legal question -- a direct violation of the judge's orders to abstain from doing outside research on the case.

Mea culpa on this; I've often found it more than a little embarassing that I've been doing a legal blog for almost four years now, and I still have difficulty figuring out how to open a text message, let alone send one.  So I decided to get with it, and start up my own Facebook page.  (You can find it online should you choose to do so, but be forewarned:  it includes a picture, which goes a long way toward explaining why this blog does not.)  So far, I'm not impressed; the operative word here seems to be "self-indulgent." 

I might even rethink the whole thing after reading this story:

A Canadian woman on leave from her job at IBM says she lost her benefits after her insurance agent spotted her in Facebook photos having fun.

The woman, Nathalie Blanchard, says her insurer, Manulife, told her the photos are evidence she is no longer depressed, according to the Associated Press and CBC News. The photos showed Blanchard at a Chippendales show and on vacation.

Well, I guess I just won't post any pictures of me having fun.  Shouldn't be much of a problem...


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