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What's up in the 8th

The court gets back on track with another pro-defendant search decision, and comes up with several good opinions.  And Your Faithful Correspondent comes up with a good idea for helping to preserve the environment.

The police officers in State v. Burks had certainly done their homework:  they'd set up a buy-bust operation near E. 67th St. in Cleveland, involving, the court's opinion tells us, "a cooperating civilian, officers, including 'maybe five (5) take down officers, two (2) undercover detectives, and at least two (2) uniform officers.'"  After receiving confirmation that a deal had gone down, the police approached a particular address and "observed two or three males on the porch and Burks standing inside the doorway of the home."  The officers detained the males, and as Det. Barrow approached Burks, he heard a toilet flushing.  Interpreting that as a sign that evidence was being destroyed, Barrow rushed into the house.  His suspicions went unconfirmed, but entry did give him an opportunity to see a large bag of marijuana in the house.  Burks denied it was his, but 'fessed up when told by the officers that since the only other person inside the house was his 79-year-old grandmother, they'd have to arrest her.

One of the things the police did not do in preparation for the day was obtain a search warrant, and that proved fatal for their case against Burks; the exigency exception to the warrant requirement applies where the police don't have time to obtain a warrant, and here their planning showed they did.  The opinion suffers from two defects:  first, it is unclear as to whether the particular house was indeed the focus of the operation, and second, even if it was, focus on a particular house isn't the same as having probable cause to obtain a warrant.

But take what you can get; other than State v. Hunter, which is simply sent back for resentencing, Burks represents the only victory for defendants this week.   More typical is State v. Williams, where the court holds that the failure to provide the defendant with written notice of the charges prior to his probation violation hearing is a "purely formal defect," which is courtese for "we don't care." 

Some good opinion-writing, though, first in a civil decisionHarris v. Noveon.  Harris worked for Lubrizol, Noveon's successor, and persuaded the company that he could develop its plumbing segment in Latin America.  And he did, generating sales of $26.5 million in 2006, his last year.  Instead of his anticipated $635,000 bonus, he received less than 20% of that, and so sued, claiming that Lubrizol should be estopped from claiming that his bonus was subject to a cap because they had promised him it wouldn't be.

Promissory estoppel is a frequent flavor in employer-employee cases, but its utility took a hit in the 1991 Ohio Supreme Court case in Wing v. Anchor Media, where the court held that without a specific promise of continued employment, promissory estoppel cannot be an exception to the "well-established doctrine of employment at will."  But Harris, and the opinion, note that those cases involved claims of wrongful discharge,  while here the claim is refusal to pay a bargained-for bonus.  The court also draws several other distinctions with Wing, and affirms the award for Harris.

The court also does a nice job in State v. Brown, an attempted murder case, the main feature of which is an argument that trial counsel was ineffective for failing to bifurcate the weapons under disability charge, and to object to the admission of the report of the gunshot residue test.  As to the first, the court rightly notes that Brown's problem stemmed not from the jury's finding out the nature of the offense which gave rise to the disability -- a misdemeanor attempted drug possession charge -- but the fact that he had been convicted of two felonies, intimidation and felonious assault.  The jury's awareness of those had come not through his attorney's derelictions, but from the fact that his arguing self-defense necessitated him testifying, with the resultant impeachment by prior offenses.  As to the GSR test report, the court notes that Melendez-Diaz v. Massachusetts renders it testimonial, and thus "by stipulating to the report, Brown's counsel essentially waived his confrontation rights."  Even assuming that counsel was ineffective for stipulating to the report, though, no prejudice can be shown, given the state of the evidence, especially given that Brown admitted firing the weapon.  The opinion in Brown reads easily, deftly weaves the legal arguments with the evidence presented at trial, and, most notably, spends only a paragraph each in reciting the law on insufficiency and manifest weight of the evidence, the first two claims raised by Brown.

This stands in marked contrast to the normal practice in the 8th, which is to treat such claims as a fresh opportunity to articulate the law in these areas in excruciating detail, as if for the first time.  In State v. Clement, for example, this recitation consumes the first six pages of the court's opinion; the remaining three are spent reciting the facts, which would demonstrate to the satisfaction of Clement's own family that there was more than ample evidence to support his conviction.   Indeed, the entire opinion could have been reduced to three sentences:  "Someone robbed a guy with a gun.  The defendant  was caught a couple minutes later with the guy's stuff and a gun.  The End."  In State v. Black, the court cuts its disposition on the law of sufficiency and weight of the evidence by half, but compensates by spending three pages regurgitating the cases on ineffective assistance of counsel, most of which date back to the Carter administration.  In State v. Smiley, more trees die to inform us about weight and sufficiency, but the real mystery of that case is not why the court feels that's necessary, but how the defendant managed to use someone else's debit card to steal $29,000, but was charged with only a 5th degree felony receiving and a 1st degree misdemeanor misuse of a credit card.  I'm alerting the media; this probably marks the 1st time in my 34 years of practice that the Cuyahoga County prosecutor's office has actually underindicted someone.


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