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


SCOTUS came out with four decisions last week, two of the criminal variety.  In Ryan v. Gonzales, the Court unanimously - and, in light of its general hostility to habeas claims, unsurprisingly - held that a defendant's incompetence did not entitle him to a stay of the habeas proceedings until he could be restored to competency.  Unanimity was also achieved in Smith v. US, with the Court holding that a defendant bears the burden of proving that he withdrew from a conspiracy.  No real constitutional issue here; the rule is that the state can't shift the burden of proof of an affirmative defense to the defendant only when an affirmative defense negates an element of the crime.  Smith was thus left with a statutory argument, and that wasn't going anywhere.

The big argument last week came in Missouri v. McNeely, where the government claimed that a warrant should never be necessary to draw blood from a suspected drunk driver because the dissipation of alcohol in the bloodstream.  Nobody on the Court was buying that, although it seems likely that the case's resolution will allow police to dispense with the warrant requirement in true emergency situations, such as might be encountered by rural police departments.

The big argument this week will be in Alleyne v. US.  "Mandatory minimum" sentences have been all the rage, allowing judges to impose those minimums if they find certain facts, like the quantity of drugs involved.  That's been approved by the Court on several occasions, most recently in 2002 in Harris v. US.  But Thomas dissented in that case, arguing that Apprendi (Blakely wouldn't be decided for another two years) required that a jury find the facts elevating the crime to the mandatory minimum.  The sole question the Court granted certiorari on was whether Harris should be reversed.  That will have much more effect in the Federal system than here in Ohio; offhand, I can't think of an Ohio offense that allows a judge to make a factual finding which results in imposing a mandatory minimum sentence.

Arguments down in Columbus, too, in a death penalty case involving DNA and another involving a dismissal of an indictment for a discovery violation.  I'll have a closer look at the latter later this week, since it gives us a first look at the three new justices on the bench. 

Not much going on in the courts of appeals; the holiday hangover has resulted in barely 30 appellate decisions so far this year.  Let's take a look at the few, the proud - whoops, sorry, that's the Marine slogan - the few cases that were decided.

A fascinating search and seizure case comes from the 2nd District in State v. HumphreyHumphrey was suspected of being involved in a series of robberies, and got a warrant on the basis of an anonymous informant's tip, which included the information that Humphreys walked with a limp; significant information, in light of the fact that two of the witnesses described the robber as walking with a limp, and confirmation from Humphrey's parole officer that Humphrey walked with a limp as a result of a shootout with the cops years before.  Instead of executing the warrant, however, the cops waited outside until Humphrey left in his car.  They stopped him, without waiting for him to commit a traffic violation, then got his consent to search the house.  The trial court held the stop and detention were illegal, but that the warrant was valid.  The 2nd District reverses, engaging in an extended discussion of just how the information provided by the tipster was deficient.  And never once mentions the good faith exception to the warrant requirement.

The courts have consistently held that an administrative license suspension following a drunk driving arrest does not create a double jeopardy bar for the OVI prosecution, on the fiction that suspension is remedial, not punitive.  The defendant in Toledo v. Levi tries an interesting twist on this.  Levi was stopped for OVI, consented to be tested, and blew a .038.  The arresting officer nonetheless seized his license and completed the necessary work to effectuate an ALS suspension.  That got thrown out at Levi's initial appearance; you can't get an ALS suspension if you consent to the test and it shows you're below the legal limit.  Levi argued that his further prosecution was barred by double jeopardy, because in this case the suspension was punitive because it was "wrongfully imposed."  The 6th District finds the argument "creative," but rejects it.

The 11th District's decision in State v. O'Brien provides about as good a demonstration as you'll find of the difference between standard review and plain error review.  O'Brien claimed that the death of his girlfriend, occasioned by his running over her with his car, was an accident, and on appeal, argues that the trial court erred in failing to charge on that.  The State argued that the instruction was unnecessary, because the offenses with which O'Brien was charged required a mens rea of knowingly, and a finding of knowing intent would preclude a finding of accident.  The 11th rejected this argument years earlier, and sticks to its guns.  The problem, though, is that the defense didn't request the instruction.  The court notes that "plain error should not be found unless it can be said that the disputed error affected the outcome of the trial in such a way that it had a substantial adverse impact upon the integrity of the underlying proceeding," and concludes that under that standard, an instruction on knowing intent is sufficient.  The only bright spot for O'Brien:  the court finds that the counts of felonious assault should have merged with the counts of felony violation of a protection order, which saves him 10 years off his prison sentence.


Recent Entries

  • December 8, 2016
    Strategic choices
    You can't always tell from oral argument, but here's when you can: you're the respondent in a disciplinary matter, and you're arguing in the Supreme Court, and you hear the chief justice tell disciplinary counsel how this is the worst...
  • December 5, 2016
    Case Update
    No need to worry about the politico-legal conflagration that awaits when Congress opens its confirmation hearings on whomever President/Twitterer-in-Chief Trump sends up to them in January to fill Scalia's seat, which has been vacant since sometime right after the Cuban...
  • December 2, 2016
    Friday ruminations
    More whining, the yin and the yang of appellate law, and good news, in moderation
  • November 29, 2016
    What's Up in the 8th
    Bad defendants, prior calculation and design, and a Terry stop.
  • November 22, 2016
    What's Up in the 8th
    No contest pleas, second thoughts, and weird food
  • November 15, 2016
    Days of Whine and Roses
    Excuses, excuses
  • November 10, 2016
    Deterrence theory and prosecutorial misconduct
    Punishing bad prosecutors
  • November 8, 2016
    What's Up in the 8th
    Don't you get tired of me writing about sentencing decisions. Don't you think I get tired of writing about them?
  • November 1, 2016
    What's Up in the 8th
    Ineffective assistance and rape cases, topped off with a creamy layer of sentencing decisions
  • October 30, 2016
    Monday Roundup
    Drugged driving, rogue BCI analysts, and a must-view oral argument on prosecutorial misconduct