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August 2010 Archives

Case Update

Bad news for Sandra Griffin.  A couple of weeks ago I wrote that her conviction for capital murder had been set aside because, contrary to State v. Baker, there were separate journal entries for the conviction and the sentence, and Baker says they have to be one document.   In State v. Ketterer, the Ohio Supreme Court holds that Baker's one-document rule doesn't apply to capital cases, since RC 2929.03(F) requires the trial court to issue a separate sentencing opinion, in addition to the judgment of conviction.  Ketterer does get a new sentencing hearing, the only purpose of which will be to properly impose post-release controls.  I'm not the only one to note the pointlessness of sending people back for resentencing hearings for that purpose, but it's beyond pointless in Ketterer's case:  the three-judge panel, to whom he'd pled guilty, had sentenced him to death, so I'd guess that PRC is somewhere in the middle of page 12 on his list of worries.  And if you read the preceding sentence and said, "why did he plead guilty if the death penalty was still on the table?", you're like me, although this story might indicate there was no way it wasn't going to turn out like this. 

Lot's of disciplinary cases this week, which mostly prove that your mother was right when she told you not to lie.  And paying more attention in math class might have helped, too:  that way, you wouldn't submit assigned counsel fee bills showing you'd worked 3,431 hours in a single year

On to the courts of appeals...

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Scheduling Change

The big news -- for anybody who reads this blog regularly, anyway -- is that the Ohio Supreme Court overruled State v. Colon.  I'm going to tackle that today.  It's the next post down.  The Case Update and What's Up in the 8th will be on Tuesday and Wednesday, respectively, and on Thursday we'll take a look at some recent decisions on the police using GPS devices to track vehicles.

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Goodbye to Colon

Two years ago, in State v. Colon, the Ohio Supreme Court held that the failure of an indictment to allege the appropriate mens rea was structural error, requiring reversal, even though the defendant never raised the issue at trial.  After a  tizzy fit by prosecutors throughout the state, the court in State v. Colon II "clarified" Colon I three months later, holding that it was prospective only, and was applicable only when the omission led to "multiple errors" throughout trial, namely, that everybody treated the offense as if it were one of strict liability.

To say that the twin decisions had a substantial impact is to grossly understate the situation:  panicked prosecutors tried to figure out how to phrase their indictments, and puzzled appellate judges tried to figure out if they'd done so correctly.  In the ten years preceding Colon, there were only 19 Ohio Supreme Court and appellate decisions in Ohio in which the words "mens rea" and "indictment" appeared in the same sentence.  In the two years since, there have been 326 such decisions.

So on Friday the Supreme Court said the hell with it, and in State v. Horner overruled Colon.  Here's what you need to know.

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Friday Roundup

I had four criminal pretrials and a hearing yesterday.  That's not my normal workload; on Wednesday I had nothing in court, which allowed me to get a brief done.  That's how I like to work things:  if I have to go over to the court, I'd just as soon waste my time on five cases as on one.

Which is what I pretty much what I did.  Three pretrials got continued to another date, by which time I'll have discovery, and maybe we can work something out, or not.  The hearing, on a motion to suppress, was obviated by the State's willingness to offer me a misdemeanor.  This is how bad the search was:  in front of one of the most prosecution-friendly judges on the bench, and in the face of the insistence by the police officers involved that the defendant plead to a felony, they offered me a misdemeanor. 

But I did get one case resolved:  I got another misdemeanor plea on a drug trafficking case.  Twenty bucks worth of marijuana.  That leaves me with two other cases involving a $20 dollar sale of marijuana. 

One thing my clients can be thankful for:  they're still alive.

Trevon Cole wasn't so lucky.

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Supreme Court Preview - 2010

The Supreme Court has accepted 38 cases so far for next term, about half of the usual number of cases it will decide.  Some of those won't make the cut. Last year, for example, much of the pre-term buzz was centered on Briscoe v. Virginia, which was to further explore the ramifications of the Court's decision at the end of the 2008 term in Melendez-Diaz v. Massachusetts.  (Buzz discussed here.)  The upshot?  After oral argument, the Court dismissed the case as improvidently granted.

With that caveat, let's take a look at what's scheduled.

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Ruminations...

... on allied offenses, sentencing, and the castle doctrine...

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What's Up in the 8th

The 8th District hands down about a dozen criminal decisions a week, and sometimes there are several which present interesting issues.  And sometimes there aren't; they just rehash well-settled areas of law.  Even when that happens, though, there's something to discuss, which is what you pay me the big bucks to do, so here goes.

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Case Update

Here's an interesting twist to my post last week about standards of review:  what about a writ of habeas corpus to an appeals court challenging a trial court's setting of bond?  That arose last week in Ahmad v. Plummer, where Ahmad had filed a habeas corpus petition with the 1st District arguing that his bond was excessive.  That court had said that although it might have given a lower bond, the trial court didn't abuse its discretion in setting it at $3 million. 

Wait a minute, said Ahmad in his appeal to the Supreme Court:  how can a court use an appellate standard of review, and an extremely deferential one at that, in an original action?  Turns out that habeas is a hybrid action:  the appellate court considers the matter de novo, but some weight has to be given to the trial court's action.  And since Ahmad "is recorded on multiple audio recordings making arrangements to hire a hit-man to kill his ex-wife," he'll be staying right where he is for now, unless he hits the lottery.

The only other news out of Columbus was the denial of a motion to reconsider or clarify in State v. Bodyke (discussed most recently here)Justices Cupp and O'Donnell dissented, arguing that the court should at least clarify that Bodyke doesn't apply "to cases in which there is no prior court order classifying the defendant into a sex-offender category that existed under Megan's Law."  That's a logical position:  Bodyke held that reclassification was a violation of separation of powers because it involved the executive branch changing a judicial order, but if there's no judicial order to begin with, there's no separation of powers problem.  The other five justices might have felt that this was so logical a position that clarification wasn't needed. 

In the courts of appeals...

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Friday Roundup

Bullshit lawsuit of the week.  You go to retrieve your father's car, which is in a parking garage.  When you get in, the car blows up, causing you serious injuries.  Turns out it blew up because your half-brother planted a pipe bomb in it, intending to kill your father so he could inherit about $300,000.  You

  • Check Craigslist for "family therapists," because it looks like there's some work to be done here.
  • Figure, "Well, that's $300,000 more for me."
  • Get a lawyer and sue your half-brother for your injuries.

The answer for Preston Scott was "none of the above":   Not precisely, anyway; he got a lawyer and sued his half-brother and the garage, obviously figuring that the garage was the deep pocket here, since the half-brother hadn't gotten the aforementioned $300,000.  In Sigmund v. Starwood Urban Retail, the DC Circuit affirms summary judgment for the garage, deciding that the half-brother's criminal act wasn't sufficiently foreseeable to impose liability:

Solon, the ancient Athenian lawgiver, made no law against patricide because he thought it impossible that anyone could commit so unnatural a crime. Two and a half millennia later, Freud famously claimed the opposite -- that every son harbors murderous impulses toward his father.  In this case, we side with the lawyer not the psychoanalyst.

Time for some girly pictures.  Without the girl, unfortunately.  I've got a subscription to the Victoria's Secret catalogue -- actually, my neighbor does, but he hasn't gotten it in a while -- and apparently they've developed a "Delicious" product line, featuring tank tops (like the one featured at right), skin fragrance, lip gloss, and self-tanning cream, promoted by the Delicious Girl <your joke here>, Miranda Kerr.  (For those of you who find your appetite for photos of beautiful women unsated by this blog -- go figure -- you can find Ms. Kerr's picture here

Well, if Victoria's Secret spent as much on lawyers as they do on models, they'd know that Fortune Dynamic, Inc., was the "owner of the incontestable trademark DELICIOUS for footwear."  Fortune sued, and although Victoria's Secret won on summary judgment, that was reversed the other day by the 9th Circuit.  The opinion wanders through various areas of anti-trust law, tossing out terms such as "post-purchase confusion," supporting the latter point, whatever its significance might be, by mentioning that several celebrities, including Britney Spears, have been espied wearing the tank top.  If you've ever entertained any fantasies about Ms. Spears, be forewarned that the above link takes indeed takes you to a picture of her adorned in a Delicious tank top, but while in the process of leaving her latest rehab stint; the photo does nothing beside prove conclusively that there is such a thing as bad publicity.

While we're on the subject of footwear, a new, and probably one-time, feature at The Briefcase:  the Fashion Tip.   Shoes are a big thing for women:  I don't know any woman who has fewer than twenty-five of them.  Well, ladies, you're wasting time and money.  I am unabashedly heterosexual, my first proctology examination convincing me beyond the shadow of a doubt that to the extent sexual orientation is a choice, I made the correct one.  I have had any number of discussions about the fair sex with other unabashedly heterosexual males, and I have yet to hear a single one of them say, "Wow, did you see the shoes on that broad?"

See you on Monday.

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Standards of review

There are several appellate courts -- the 6th Circuit and Ohio's 9th District, among them -- which require you,  for each assignment of error in your brief, to set forth the applicable standard of review the court is to employ.  That was a good idea, it dawned on me in the midst of an oral argument a month ago in the court of appeals here, when one of the judges asked me what the standard of review should be, and after a moment, I replied, "You know, I have no friggin' idea."

Well, I said that on the inside, anyway.

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Another foray into the thicket

You have a client who was convicted of rape in 2002.  The court conducted a hearing and concluded your client wasn't a sexual predator, and sentenced him to four years in prison.  By operation of law at the time, he became a "sexually oriented offender," with the requirement that, once he gets out of prison, he has to register as an offender, and verify his address annually every ten years.  He gets out, registers, but fails to verify his address a year later, and gets charged and convicted, and given probation.

A year or so after that, he gets a letter from the attorney general telling him that that, under the new Adam Walsh Act, he's been reclassified as a Tier III offender, with the duty to report every ninety days, instead of annually.  He doesn't report, and so he's charged with failing to do so.  Except this time, under the New, Improved AWA,  it's a first degree felony, and your client's looking at a minimum mandatory three-year prison sentence.

Or maybe not.

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What's Up in the 8th

It's not over 'til it's over, says the State in a search case, and the 8th agrees.  In the meantime, the district's cases over  the past two weeks provide a rare reversal of a denial of a motion to vacate a guilty plea, give valuable lessons about what to do after a car accident, and have us pondering the question, what would you rather have, a crazy ex-girlfriend or a crazy neighbor?

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Case Update - They're Baaack

Well, I am, from a week-long hiatus.  Not so much the Columbus Seven; the only news on that front is the scheduling of oral argument in State v. Hodge, the case that presents the question of whether judicial fact-finding for consecutive sentences should be reinstated in light of the US Supreme Court's decision in Oregon v. Ice (discussion here).  That goes down on September 15.  In DC, Elena Kagan gets sworn in, and sometime in the next couple of weeks I'll have a preview on the cases the Court will be deciding next term.

In the meantime, no rest for the courts of appeals; the 8th District alone handed down 14 decisions in just criminal cases last week.  So let's take a look...

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Friday Roundup

Block that metaphor!  While fan rowdiness in America hasn't reached the levels of European soccer hooliganism, there's cause for concern that things are getting out of hand.  The Cincinnati Bengals' recent announcement that they were establishing a "family friendly zone" at their ballpark, where fans could presumably bring their children without fear of having them turn out like the moppet at right, prompted a county commissioner to suggest that the team do the opposite:  set aside a section for drunks and jerks.  That this might have had to comprise well over half the stadium's seating capacity was confirmed by one commenter's response to the story:    "if they do make super-drunk sections, count me in for season tix…."

But a blow for civility was recently struck in, of all places, Philadelphia, where, as this story reports, Matthew Clemmens was sentenced to 30 to 90 days in jail for intentionally vomiting on another man and the man's daughters during a Phillies game.  (Making things infinitely worse is that the man happened to be an off-duty cop.)  The judge deemed Clemmens' contrition feigned, and told him, "I don't know if you were trying to hit a home-run with your friends that day, but you struck out."  Now the City of Brotherly Love can get back to more important things, like deciding where Clemmens, subsequently labeled "Pukemon," ranks in the Pantheon of Fan Boorishness in a city which booed Santa Claus at an Eagles game. 

Welcome to the jungle.  One of the few amusements I have left in life is watching the shell-shocked expressions of out-of-town lawyers who venture into the Justice Center for the first time for a 9:00 pretrial and see a 150-foot line of people waiting to go up in the elevators.  The building itself is no prize -- there's a story, probably apocryphal, that the Sears Tower in Chicago was built the same year as the Justice Center, for less money -- but the elevator ride is the icing on the cake.  The elevators themselves aren't the problem, it's just that the powers that be have decided that all criminal pretrials should be held at 9:00 AM.  There's probably about 15 pretrials per room, 34 judges, defendants have to be present, and they generally bring their significant others and a kid or two, divided by six elevators and 23 floors... well, you do the math.  And that's before we get to the 14 municipal court judges who have probably close to a hundred cases each morning scheduled for, yep, 9:00.  So some lawyer who's not familiar with this usually looks like he just stumbled into the Star Wars bar.

I thought of this when I came across this article (hat tip to Overlawyered).  Although primitive elevators go back to the third century BC, the "modern" electric elevator wasn't patented here until 1887, and didn't come into widespread use until the turn of the century.   And was spectacularly dangerous:

In 1925, in the city of New York alone, 87 people died in elevator accidents, including 47 from falling into empty shafts and 36 crushed by closing doors.

The article's point:  with the current state of product liability laws, nobody would (or could afford to) invent a product that killed people by the score.  Which leads to the author's query:  "How many inventions are we missing out on today because it's impossible to develop a first version that's safe enough to withstand the risk of product liability suits?"

Then again, if the guy who'd invented the elevator been able to foresee the Justice Center, he might've decided not to bother. 

But judge, how do you really feel?  You carefully formulate the theory behind the argument.  You diligently research it, then spend hours writing and fine-tuning it in the brief.  And then you get the appellate court's decision back, and they tell you that your argument -- the one you spent all that time on -- is "devoid of merit."

Devoid?  Devoid?  Isn't that a tad strong?  "Lacks merit" isn't much better, but "devoid of merit" makes it sound like you came up with the whole thing while free-basing.  Couldn't the court have just said, "We reject the appellant's argument" and called it a day?

Well, don't feel too bad, Sparky, because you didn't have your efforts summarized thusly for the world to read, as happened in this Federal case from Texas:

Before proceeding further, the Court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact--complete with hats, handshakes and cryptic words--to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions. With Big Chief tablet readied, thick black pencil in hand, and a devilmay-care laugh in the face of death, life on the razor's edge sense of exhilaration, the Court begins.

Taking a break.  I've got lots of stuff to do in the coming week, and nothing much is happening in the courts, so The Briefcase will be on a brief Summer Hiatus next week.  See you back here on the 16th.

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Baker: The gift that keeps on giving

Hell Hath No Fury, Chapter 214:  Back in 1989, James Steuer smacked around his girlfriend, Sandra Griffin.  She set him up to be killed, and was convicted of aggravated murder and sentenced to life with parole possible after 30 years. 

A couple of years ago, as I discussed back here,  the 9th District came up with a hypertechnical reading of what CrimR 32 required a sentencing entry to say.  A finding that the defendant had been convicted after a trial wasn't enough; it also had to indicate he'd pled not guilty.  A statement that he'd pled guilty wasn't enough, either; it had to indicate that the judge had found him guilty.  The Ohio Supreme Court put an end to this in State v. Baker, holding that the entry need recite only that the defendant had pled guilty, or been found guilty by a court or jury, and the sentence, plus the judge's signature and the court clerk's journalization.

And last week, in State v. Griffin the 5th District decided that Baker gave Sandra Griffin a get-out-of-jail card.

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Closing argument

A judge I have great respect for finds out that some lawyers have taken shots at her on the OACDL listserv for imposing time limitations on oral argument.  The next time she sees me, she calls me into chambers and tells me a story.  A very good lawyer was defending a policeman accused of stealing drugs, and it was a very tough case.  The judge said he had twenty minutes for oral argument.  The lawyer protested mightily, he and the judge went round and round, but she stuck to her guns.  The lawyer gave a closing that lasted 18 minutes and 35 seconds.  His client was acquitted.

I believe her.

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What's Up in the 8th

I get beaten like a rented mule in two cases, that's what's up.  My week was worse than Corinne Whiteaker's, slightly better than Ed Pawloski's, and infinitely better than Elvester Jackson's.

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Case Update

Nothing but appellate decisions to report this week, so we'll take a little more extended look at them than we usually do.  (And perhaps we'll have my therapist take a more extended look at my newfound tendency to refer to myself in the first person plural.)

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