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Case Update

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The only thing new from DC was the filing of various amicus briefs in the gay marriage cases.  The Court might hand down some decisions in the next week or so, but the next conference, where the justices will decide what cert grants to issue, doesn't come until next Friday.  There are any number of petitions awaiting decision, some seemingly trivial; one asks "whether the Driver's Privacy Protection Act interferes with such quintessentially local government functions as a municipality's decision concerning how much information to include on a parking ticket," another "what constitutes 'changing clothes' within the meaning of Section 203(o) of the Fair Labor Standards Act."  But there are some key cases, too:  one on whether a defendant can be impeached by statements given during a court-ordered mental evaluation, another on what evidence last year's decision in Lafler v. Cooper is required to show that a defendant would have taken a plea but for his counsel's ineffective assistance in advising him to go to trial, and another on whether a defendant who decides to proceed pro se can revoke that and ask for reappointment of counsel at trial.

SCOTUS doesn't have any oral arguments scheduled for another two weeks, but the Ohio Supreme Court cranks it up again with arguments in nine cases.  Four of them are criminal, and one "semi-criminal," concerning Ohio's wrongful imprisonment statute.  Two are of special note.  One is State v. Athon, which offers the Supreme Court the first opportunity to take a look at the new open discovery rules for criminal procedure.  Instead of requesting discovery under Rule 16, Athon had simply obtained the police reports through a public records request, then refused to provide discovery to the State.  I did a post on the new discovery rules a few weeks back, and I'll be interested in seeing how this plays out.  As I wrote then, the real philosophy behind the rules was to put an end to playing games with discovery, and making the process more open.  I'm having a hard time seeing how this squares with that objective.  The other is In re M.M., an appeal out of the 8th District on whether the state can request leave to appeal an evidentiary ruling after a defendant is acquitted.  The Supreme Court upheld this in a 1990 decision, State v. Bistricky, but that's going to need another look.  I'll have more on the case on Wednesday.

In the courts of appeals...

After granting a motion to reopen the appeal, the 6th District in State v. Houston holds that aggravated burglary and theft were allied offenses and should have merged... The defendant in State v. Bannon argues that her attorney was ineffective for failing to raise a speedy trial issue.  Too bad, says the 8th District; Bohannon pled guilty, and a plea of guilty waives most IAC claims, including the right to challenge a conviction on speedy-trial grounds on appeal... Ever hear of the "tailoring" argument?  That's where the prosecutor tells the jury in closing argument that the defendant was able to sit at trial, listen to other witnesses, and then "fill in the holes," i.e., to lie or "tailor" his testimony to what he heard.  Although several state courts have ruled that's improper, because the defendant has a constitutional right to be present at trial, the 2nd District notes in State v. Eicholtz that the US Supreme Court has held otherwise, and that the only Ohio district to consider the matter concluded likewise in 2000... A rare reversal of a conviction for failure to grant a motion for severance of co-defendants in the 5th District's decision in State v. Klein.  The two defendants, a husband and wife, were charged with murder of the wife's two sons.  At trial, the wife testified that after she read her husband's statement to the police, she felt that he lied about the incident, and ceased all communication with him.  The court found that, under the circumstances, the defendant was prejudiced by the joinder.  Ya think?

Allied offense watch.  After granting a motion to reopen the appeal, the 6th District in State v. Houston holds that aggravated burglary and theft were allied offenses and should have merged... In State v. Long, the defendant was convicted of two counts of weapons under disability for purchasing two guns, at the same time, for self-protection.  The 9th District finds that he acquired the guns with the "same conduct" and same purpose, and that the two counts therefore merge... And there might be an allied offense argument where the defendant is charged with two counts of sexual battery and two of unlawful sexual misconduct with a minor, but not where the charges arise from the defendant's admitting he had sex with his 15-year-old stepdaughter over 100 times, says the 2nd District in State v. Cox...

Am I missing something?  In State v. Cowins, the defense counsel offered no objection at trial to the testimony of a police officer as to what one of the victims of a robbery/rape told him, although the victim didn't testify.  The 1st District affirms on a plain error analysis, finding that the remaining evidence was overwhelming.  It then vacates the consecutive sentences imposed by the judge for the two rapes, noting that although neither party raised the issue, the sentencing took place five months after HB 86 went into effect, and the judge made no attempt to make the findings now necessary to impose consecutive sentences.  And in State v. Sattler, the 6th District considers whether the trial court erred in imposing consecutive sentences, without anybody ever mentioning RC 2929.14(C)(4), the new statute on consecutive sentences; the only argument raised is that "the trial court's imposition of consecutive sentences is contrary to the purposes and principles of sentencing under R.C. 2929.11 and 2929.12."

Clothes make the man.  In State v. Wilson, the defendant argues that it was obvious to the jury that he was in custody since he wore the same civilian clothes for each of the five days of trial.  The 2nd District wasn't buying.

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