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 »


Case Update - Tanned, Rested & Ready Edition

Nothing like a week in the desert to rejuvenate one, especially one who usually gets less sunlight than the average vampire.  With batteries fully recharged, let's take a look at the cases that came down in my absence.

The biggest was the Ohio Supreme Court's decision in State v. Gingell, which involved the retroactivity of the Adam Walsh Act.  We'll talk about in more detail on Wednesday.  In Disciplinary Counsel v. Stafford (oral argument discussed here, last paragraph), the court smacked Vince Stafford, bête noire of the Cleveland domestic relations bar, with an 18-month suspension, in accordance with the board's recommendation, but modified that by suspending only six months, rather than twelve.   

Three opinions from down in DC.  The first, Cullen v. Pinholster, again addresses habeas corpus, the seventh decision this term to do so.  And, as in the previous six, the habeas applicant comes a cropper.  Pinholster had been sentenced to death, but argued in habeas that his attorney had been ineffective for not putting on evidence that Pinholster had suffered brain damage as a child.  The state courts had rejected the claim, but the Federal district court took additional evidence on the subject and came to a contrary conclusion, which was affirmed by the 9th Circuit.  In a 7-2 reversal, the Court held that the Federal courts were limited to the record provided to the state courts, and that record was sufficient to deny relief under the highly deferential standards for habeas.

The other notable case was Arizona Christian School v. Winn.  Over forty years ago, in Flast v. Cohen, the Court had held that taxpayers had standing to challenge a state expenditure on grounds that it violated the First Amendment's Establishment Clause.  At issue in Winn was an Arizona law that gave individuals a dollar-for-dollar state tax credit on contributions to private groups which provide scholarships to private school students; the "private groups," of course, are mostly giving out scholarships to parochial students.  The Court doesn't reach the merits of the matter, deciding that tax credits are different from tax expenditures, and taxpayers contesting the former lack standing to do so.  The 5-4 decision earned a spirited dissent from newly-minted Justice Kagan, discussed more fully in this Atlantic article, rightfully noting that the effect of Winn is to eliminate taxpayer suits regarding religious expenditures, as long as state legislatures are bright enough to disguise the expenditures as credits.

In the courts of appeals...

Civil.  8th District affirms dismissal of medical malpractice suit against dentistry practice, says that practice couldn't be held liable under respondeat superior unless individual dentists named... Trial court couldn't order sale of husband's business in divorce case where third party had shares in husband's corporation, says 12th District... Entry of summary judgment improper where trial court granted it on basis of grounds first raised in movant's reply brief, says 9th District... Trial court should have held a hearing on defendant's request for attorney fees because record contained substantial evidence of plaintiff's frivolous conduct, 8th District holds... Plaintiff's attorney admits receiving defendant's motion for judgment on the pleadings, but says it got lost in the shuffle of papers on his desk; 1st District holds that this isn't sufficient showing of mistake or excusable neglect, reverses grant of motion to vacate, says negligence of attorney should have been imputed to plaintiff...

Criminal.  In order to trigger requirement that court taking Alford plea must inquire into factual basis for charge, and make determination that defendant has a rational basis for pleading guilty to something he claims he didn't do, 8th District holds that defendant must make protestation of innocence at time of plea; protestation at sentencing insufficient... 2nd District rules that where parties agree at plea hearing on how various offenses are going to merge, no need for trial court to conduct separate review... Mere odor of alcohol and refusal to submit to sobriety testing did not create probable cause for arrest for OVI, says 5th District...  "Ubiquitousness" of cell phones is such that mere possession of one does not ipso facto create sufficient proof of use in drug trafficking to support a conviction for criminal tools, 8th District says... 5th District says that aggravated menacing and retaliation might be allied offenses, remands to trial court for review per State v. Johnson...  Electronically-monitored house arrest does not entitle defendant to time-served credit, says 10th District... Defendant's taking victim from bar to his apartment provided separate animus for convictions of attempted rape and kidnapping, holds 5th District...

Today's practice tip.  Your client has committed various robberies in two counties, and you're worked out a deal where he pleads to several of them and agrees to testify against his co-defendants, in return for which no additional will be filed against him.  After he pleads, the prosecutor in the other county files charges.  Can't do it, right?  Wrong.  In State v. Billingsley, the 11th District holds that a prosecutor's authority to enter into a plea bargain doesn't extend beyond the county lines, and any agreement he makes can't bind a prosecutor in another county. 

Bluto would've liked this.  In State v. Reining, a campus police officer observed the defendants standing on the second floor balcony of a frat house, with smoke coming from that direction.  The officer unlocked the door of the frat house, went up to the second floor, and observed the defendants smoking some of the Demon Weed.  The 6th District held that the frat house was to be treated the same as a home, and threw out the search.


Recent Entries

  • June 23, 2017
    Crime and the First Amendment
    Facebook and sex offenders, and encouraging someone to kill himself
  • June 20, 2017
    What's Up in the 8th
    I come a cropper, plus inventory searches and mandatory probation
  • June 19, 2017
    Case Update - SCOTUS
    What's coming up in the US Supreme Court in the next two weeks
  • June 12, 2017
    What's Up in the 8th
    After weeks in the desert, we come upon an oasis of defense wins
  • June 7, 2017
    A switch in time
    Why what the Supreme Court did in Aalim II and Gonzales II is a bad thing
  • June 6, 2017
    What's Up in the 8th
    A turnabout on prior calculation and design, and harmless error in all its manifestations
  • June 5, 2017
    Case Update
    A death penalty case, fourteen years after the crime, and we're just getting started. And two appellate decisions on search and seizure.
  • May 31, 2017
    What's Up in the 8th
    "What's a law enforcement accountability activist?" asked someone never, but the answer is here. Plus, cell phone experts, joinder, and the fading glory that was State v. Hand.
  • May 30, 2017
    Case Update
    One searches SCOTUSblog in vain for decisions which would be of interest to the uncounted hordes of this blog's regular readers; one of the Court's opinions last week deals with the Hague Service Convention's rules on international service by mail,...
  • May 25, 2017
    "Clarifying" post-release controls
    A look at the Supreme Court's decision in State v. Grimes