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

The Supreme Court's term begins today, and as always, it will be marked by the ritualistic entry of the justices into the majestic courtroom, followed by the airing of grievances and feats of strength.  Whoops, no, that's not how it goes.  Instead, Justice Thomas will give his customary long-winded dissertation greeting the assembled masses.

Seriously, the Court will begin its term with oral arguments this week in several criminal cases, including Martinez v. Ryan, which presents the issue of when an indigent defendant is entitled to appointed counsel on appeal.  The Court's previously held that the right to assigned counesel only attaches to an appeal "as of right," and doesn't include discretionary appeals or collateral proceedings.  Arizona, though, allows a defendant to pursue claims of ineffective assistance of counsel only in post-conviction relief, and so the question then becomes whether he's entitled to appointed counsel for this purpose, since it essentially serves the same function as an appeal as of right on that claim.  Maples v. Thomas presents an appalling case of form over substance:  Maples was sentenced to death, and a court clerk mailed the papers denying his latest claim of relief to his attorneys.  They'd withdrawn from the case without notifying Maples or the court, though, and never filed the necessary papers to appeal that decision.  The 11th Circuit held that this didn't excuse Maple's "procedural default," essentially nullifying his habeas claim.  I'll have more on these cases after oral argument.

The Columbus Seven swing back into action this week, with the 8th District's decision in State v. Ginley among the cases slated for argument.  In Ginley, the State sought to have the trial judge declare a recanting witness in a domestic violence case a court's witness under EvidR 614, which would have allowed the State to impeach her with her statement.  The judge declined, and the State's appeal to the 8th District was rejected.  The case presents somewhat of a procedural quagmire:  the 8th actually rejected the State's leave to appeal, and there are questions of whether the judge's order was even appealable.  That will get fleshed out on Tuesday.  On Wednesday, the court will take up State v. Monford, in which the defendant's lawyer (who died before trial and was replaced by another attorney) filed pleas of not guilty and not guilty by reason of insanity in an aggravated murder case.  Monford was convicted, with no evidence presented on the issue of insanity, but the defense was never formally withdrawn, and Monford appealed, claiming that it was structural error not to charge the jury on the defense.  The 10th District didn't buy it, and I've read none of the law or the briefs, but the early line on this one is take the State and give the points.

On to the courts of appeals, where that's also a pretty good rule of thumb...

A couple of cautionary notes from the 8th District.  In State v. Simpson, the court holds that there's no obligation for the trial judge to even hold a hearing where a motion to suppress contains only "boilerplate language" and fails "to set forth any factual basis for the suppression of the evidence."  In State v. Franklin, the court seems to adopt the position of numerous other districts, that a defendant who's represented by counsel on appeal can't file a pro se supplemental brief.  I say "seems" because the other reason given is that the defendant didn't ask for leave to file the brief... Good case from the 9th District on when an informant's tip is sufficient to warrant a stop.  State v. Dowler produces three opinions, two of them finding that the police hadn't sufficiently corroborated the tip.  Probably the most notable thing about the case was that the cops followed Dowler for five miles without noticing any traffic violations...

The nature of the controlled substance is an element of the crime of trafficking, and where the indictment doesn't specify what it is, it's defective, says the 9th District in State v. Jackson... In State v. Strong, the 1st District finds that rape by vaginal intercourse and rape by digital penetration are separate acts, even though committed during the same sexual encounter.  The kidnapping count doesn't merge, either, where the defendant kept the victim in her apartment for seven hours... The right to waive a jury trial isn't a constitutional right, the 2nd District says in State v. Bell, and the defendant must show prejudice to vacate a plea... Nice case on dog searches from the 2nd District in State v. HaynesThe law is that the stop can't be prolonged to allow the dog to get there, unless the police acquire reasonable suspicion to do so after the stop.  The defendant had been detained for 29 minutes after the stop until the dog could be brought to the scene, and the 2nd finds that the trial judge erred in concluding that the police had reasonable suspicion to continue the stop...

In State v. Ricks, the 6th District rejects the defendant's claim that the trial court should have given him funds for an eyewitness expert.  The opinion does a good job examining the law on this issue, and concludes that the number of witnesses and their certainty of identification meant expert testimony was unnecessary... In State v. McClendon, the 2nd District rejects the State's argument that because the defendant fired five shots at the victim in quick succession, the offenses of murder and felonious assault were separate offenses... In State v. Crosby, the 12th District concludes that aggravated burglary, safecracking, and grand theft aren't allied offenses... The 5th District finds that counsel rendered ineffective assistance by failing to file an affidavit of indigency, thus resulting in the imposition of mandatory fines, in State v. Hinkle.


Recent Entries

  • September 12, 2017
    What's Up in the 8th
    Prior consistent statements, whether State v. Hand is applied retroactively, and a big Coming Attraction
  • September 11, 2017
    Case Update
    Looking back at Melendez-Diaz, and the 8th goes 0 for 2 in the Supreme Court
  • September 8, 2017
    Friday Roundup
    Pro bono work, screwed-up appeals, and is Subway shorting their customers?
  • September 5, 2017
    What's Up in the 8th
    The barriers to expungement, jury verdict forms, and hybrid representation
  • August 31, 2017
    Constructive possession
    Constructive possession is 9/10ths of the law
  • August 29, 2017
    What's Up in the 8th
    A traffic stop found Samson Primm in possession of a few grams of marijuana, but he hires a lawyer and files a motion to suppress the stop. On the day of trial, the City asks to dismiss the case. Primm...
  • August 28, 2017
    Truth in plea bargaining
    So I got a brochure last week from Judge Donnelly over at the Common Pleas court. As you can see, it's a panel discussion on plea bargaining. The judge asked me to get out the word, so I just sort...
  • August 15, 2017
    Summer Break
    Got a bunch of stuff to do over the next couple weeks, and with the slowdown in the courts, it's a good time to take a break. I'll be back here on August 28. See you then....
  • August 11, 2017
    Friday Musings
    Drug trafficking, ADA lawsuit abuse, and e-filing
  • August 10, 2017
    Case Update
    Waiting on SCOTUS; two Ohio Supreme Court decisions