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Case Update

The big news from SCOTUS this week was the acceptance of cert in Fisher v. University of Texas, which challenges the university's undergraduate admissions policy of affirmative action.  With Justice Kagan recusing herself, that leaves only three justices on the court who have voiced support for affirmative action in higher education.  Speculation is that the other five, who have all expressed outright opposition or at least misgivings about it, will toss the policy; the betting now is whether they do so narrowly, just ruling on UT's policy, or whether they go all the way and overrule Grutter v. Bolling, its 2003 decision upholding the University of Michigan Law School's policy.  If Grutter is overruled -- and the plaintiff in Fisher asked the Court to reconsider it -- it would effectively eliminate affirmative action in every school in the country.

The big news later this month will be the two days devoted to oral argument regarding the Affordable Care Act, the health care reform passed by Congress in 2010.  The critical issue is the mandate requiring everyone to purchase health insurance, which has proven consistently and immensely unpopular; recent polls show that nearly three-quarters of the public believes that the mandate is unconstitutional.  There's always been a question of whether, and how closely, the Court follows public opinion, and a decision upholding the act and the mandate might provide an answer.

The oral argument calendar is bare for the next fortnight, but arguments resume on March 20 with two key criminal cases on the docket.  Two years ago the Court held that subjecting a juvenile to life imprisonment without parole for a non-homicide offense violates the 8th Amendent's proscription of cruel and unusual punishment.  The two new cases involve the question of whether that proscription should be extended to homicide cases as well.  The following day, the Court takes on the bedeviling issue of what constitutes harmless error.  I'll have more on that after the argument.

Shifting our gaze to Columbus, did you know that the law -- RC 2947.23(A)(1), to be specific -- requires a trial court when imposing court costs to inform a defendant that if he fails to pay the costs, the court can require him to perform community work service?  Don't feel bad; I didn't get the memo, either.  In State v. Smith, the defendant had appealed, arguing in part that the trial judge had failed to so advise him.  The court of appeals had refused to consider the assignment, saying that it wasn't ripe until the defendant failed to pay costs or the judge imposed community service.  The Supreme Court reversed, holding that the issue was ripe.  Left unaddressed and unresolved is what exactly is the consequence of the trial judge's failure:  is the sentence void?  Partially void?  Can the defendant get out of paying costs or picking up roadside trash completely?  Will Lisa ever tell Jack that she's pregnant with Eric's baby, not his?  Stay tuned.

You don't need to await the opinions of the courts of appeals; they're right here...

In State v. Swiergosz, the defendant had been convicted of a variety of offenses, and appeals, arguing that some of them should have merged.  This argument relied on the Supreme Court's decision in State v. Johnson, which came down ten months after the sentencing.  Nonetheless, the 6th District holds, the sentences have to be vacated and the case remanded for resentencing to apply the allied offense analysis:  Johnson, and all other such intervening decisions, apply to any cases pending for trial or on direct appeal.  Moreover, the fact that the sentences were imposed concurrently does not make the issue moot... In State v. Lindsey, the State had amended a burglary charge to theft as part of a plea bargain.  Since the amendment didn't include an enhancement for amount, the 8th District rules that the theft charge should have been treated as a misdemeanor, not a felony... A trial court has jurisdiction to rule on a motion for leave to file a delayed motion for new trial while appeal of sentencing is pending, the 2nd District says in State v. Lawrence...

Lengthy and good discussion of whether police can enter an apartment when they see drugs inside, under the exigent circumstances exception to the warrant requirement, in the 10th District's decision in State v. Alihassan... A defendant's request under RC 149.43, seeking public records pertaining to his pending criminal case, was not a demand for discovery, and therefore did not trigger defendant's duty of reciprocal discovery under CrimR 16, the 1st District holds in State v. Athon... The 9th District upholds the trial court's excluding a Puerto Rican for cause from a jury panel where he said he had difficulty understanding English, and the parties had difficulties understanding him, in State v. Frazier...

A petition for post-conviction relief is the more appropriate way of raising an issue of whether counsel was ineffective for failing to file a motion to suppress, the 9th District holds in State v. DavisThat entails a bit more risk than the court believes; last year in State v. King the court held that the defendant's claim of ineffective assistance in a post-conviction relief petition was barred by res judicata because he could have raised it on direct appeal... In State v. Clark, the 6th District grants an application to reopen an appeal, holding that appellate counsel was ineffective by not raising the argument that, although the court referred the defendant for a competency evaluation, no competency hearing was held...

The value of silence.  One of the banes of criminal defense work is the client who insists on telling "his side of the story" to the jury.  The defendant in State v. Swiergosz took that to new heights.  The case was bad enough:  he'd gone to his estranged wife's place of business carrying a couple of guns (which he referred to as "attention-grabbers"), hit her with a crowbar, raped her twice, and then held 50 policemen at bay for six hours.  He took the stand at trial, and was pilloried by the prosecutor in cross-examination, who got him to admit his guilt of most of the charges.  The opinion tells us that

After leaving the stand following this cross-examination, Swiergosz complained to the court in chambers that his attorney's initial questioning was too limited. The jury, he insisted, had not "heard the whole story" about a litany of matters relevant to his defense, all occurring before his crimes.

The trial court allowed him to take the stand, the opinion noting tartly that "predictably, the prosecutor had no objection."


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