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

Last week I told you about several cert applications SCOTUS had on tap, one concerning whether the availabity of the insanity defense was constitutionally required (four states don't allow it) and another on nonunanimous jury verdicts in felony cases (two states do allow it). Perhaps because of the uncommonality of both situations, neither case made the cut. Two did; as SCOTUSblog reports, one raises the issue of "whether the federal government can be challenged in a regular federal court for taking over a part of an annual raisin crop from packers and processors, under a marketing program," and the other "tests whether a family that fails to make a claim on time for injuries due to a vaccine may still be entitled to recover its attorney's fees." You will look here in vain for future updates on the status of those cases.

While I would like the Court to concentrate more on criminal cases, that sentiment isn't shared by Antonin Scalia. In a speech two weeks ago to the Federalist Society, Scalia acknowledged that while cases involving the Bill of Rights are important, they're not the ones "I live and die for"; he prefers cases involving the structure of the Federal government, such as separation of powers and concepts of federalism. He also spoke at length about his favorite subject, constitutional interpretation, and his judicial philosophy of textualism. Give Scalia his due. In over a quarter century on the Court now, the only legacy he's got, decision-wise, is Crawford and Blakely; cases which, ironically, are favorable to defendants. But the shift toward textualism and originalism as methods of interpretation has been stark, even among liberal judges: in the 2nd Amendment case, District of Columbia v. Heller, both the majority and dissenting opinions focused on the historical record. Scalia won the battle by fighting it on his own terrain.

No criminal decisions from Columbus, either, but our learning process continues. From JNT Props, LLC v. Keybank we find that there are three methods of calculating daily interest: the 365/365 method (exact day interest), the 360/360 method (ordinary interest), and the 365/360 method (bank interest). That knowledge will make you the conversational point man at the next party. Girard v. Youngstown Belt Railway Co. has something to do with eminent domain actions involving railroad companies, and surely would have been more informative than that had I managed to get past the first paragraph. Hewitt v. LE Myers Co. involves the question of whether protective gloves are safety devices for which an employer is responsible (they're not), thus making the employer liable for an intentional tort for their removal (it doesn't).

What we learn from Branch v. Cleveland Clinic Foundation is that money talks. Last year, the 8th District reversed a judgment for the Clinic in a major medical malpractice case. The court reverses and reinstates the judgment, finding that the 8th incorrectly determined that the trial judge had abused his discretion in three evidentiary rulings. If you do appellate work before the court, one of the first things you're taught is that the court does not engage in error correction, it expounds rules of law, and that you must tailor your requests to have court accept your case with this in mind. One searches the Branch opinion in vain for any such rule of law; the decision doesn't even contain a syllabus. As Pfeifer, the lone dissenter, points out, while the case might be "a matter of great corporate interest" to the Clinic, that's not a sufficient ground to justify review. Or shouldn't be.

In the courts of appeals, where it's a slow week with the holiday... 

The futility of seeking a severance of charges is demonstrated by the 9th District's decision in State v. Samuels. Samuels had been arrested and charged in three separate cases involving methampetamine: once for manufacturing it, again three months later for purchasing items used in making it, and some four months after that for possessing it. He argued that the consolidation impacted his ability to claim that while he was addicted to meth, he wasn't involved in making it. True that, says the court (not using that precise phrase, mind you), but since the evidence of each offense was "simple and direct," there's no problem combining them for trial... And the futility of making ineffective assistance of counsel claims on direct appeal is demonstrated by the 2nd District's decision in State v. Few, a hit-skip case. Few's attorney filed a notice of alibi the day after trial (it was served on the prosecutor the day before), and didn't subpoena in the arresting officers, who might have corroborated Few's contention that he wasn't injured, as claimed by a state's witness. The record doesn't indicate when Few told the attorney about the alibi, and what the officers would've testified to, so that's not enough. In the Federal courts, post-conviction relief is the preferred method of handling such claims, because of the ability to supplement the trial record; in fact, in some circuits IAC claims won't be considered on direct appeal...

The Adam Walsh Act includes a provision automatically classifying someone who moves into Ohio and has been convicted of a sex offense in another state. In State v. Carr, the 4th District holds that this is unconstitutional when applied to an offender convicted prior to the effective date of the AWA, and reverses a conviction for failing to notify of change of address... In State v. Williamson, the defendant applied for expungement of his offense of carrying a gun on school grounds; he had also been charged with aggravated menacing in threatening another student, but that charge was dismissed. The 10th District holds that the trial court can consider the "entire record," and concludes that the fact that the victim of the dismissed offense was under 18 makes the other offense non-expungeable...

There's a rule of law for the Supreme Court to consider. If you steal $600 in August of 2011 and are sentenced two months later, you're entitled to a misdemeanor sentence, because HB 86 changed the felony threshhold from $500 to $1000, and under RC 1.58, you get the benefit of the reduced punishment. Are you also entitled to a conviction of a misdemeanor? I did a post back in February making that argument:

RC 1.58 distinguishes between "penalty, forfeiture, or punishment," and you could contend that penalty and punishment are two different things: punishment involves the fine or incarceration, and penalty involves the classification of the offense.

The 8th District rejected it in State v. Steinfurth and State v. Saplak, and last week the 9th District joined suit in State v. Taylor. But the 5th District bought it in State v. David, so there's something to argue.


Recent Entries

  • November 15, 2017
    What's Up in the 8th
    Plea withdrawals (again), sexual predator hearings, and an appellate law question
  • November 7, 2017
    What's Up in the 8th
    Don't listen to prosecutors about the law, good new/bad news jokes on appeal, and the Byzantine course of a death penalty case
  • October 24, 2017
    What's Up in the 8th
    Trying to change the past
  • October 16, 2017
    En banc on sentencing
    The 8th District takes a look at what State v. Marcum means
  • October 13, 2017
    Friday Roundup
    Musings about the death penalty and indigent defense
  • October 11, 2017
    Case Update
    SCOTUS starts its new term, and the Ohio Supreme Court hands down two decisions
  • October 10, 2017
    What's Up in the 8th
    Collaboration by inmates, fun in Juvenile Court, the limits of Creech, and more
  • October 5, 2017
    State v. Thomas
    The Ohio Supreme Court reverses a death penalty conviction
  • October 4, 2017
    Russ' Excellent Adventure
    A juror doesn't like me. Boo-hoo.
  • October 3, 2017
    What's Up in the 8th
    What not to argue on appeal, waiving counsel, the perils of being a juvenile, and expert witnesses