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

On the list of Things I Could've Watched Instead of Another Episode of The Walking Dead, we can add C-Span's coverage of Chief Justice John Roberts' remarks to the Fourth Circuit Judicial Conference a couple weeks back.  After opening with the joke about the two rabbis and a prostitute -- and yes, I'm making that up -- Roberts did let on with something I didn't know:  the justices don't discuss the cases among themselves before oral argument.   That came as part of his discussion about the growing problems with the justices dominating the argument; in certain cases, you could actually see justices framing their questions more to make an argument to one of their fellow members, usually Kennedy, rather than to probe the lawyer's case. 

The other thing noted by Roberts is the exceedingly narrow background of the justices:  none ever held elective office, and only one (Kagan) did not come from an appellate judgeship.  That contrasts sharply with prior courts:  William Howard Taft was a former president when he ascended to the Court, Earl Warren was a governor, and in the 1940's, three members of the Court had been senators.  Roberts acknowledged that this resulted in decisions focusing on legal reasoning rather than public policy.  You could spend a lot of time arguing about whether that's a good thing or bad.  Frankly, I think the bigger problem is that the justices are so far removed from the lives that ordinary people live that they have no idea of the practical impact of their decisions. 

Nothing from the Ohio Supreme Court, but there's a couple good ones in the courts of appeals, so let's take a look at those.

State v. White provides a typical fact pattern:  the cop stop someone for a traffic violation, then, as the stop is just about to be concluded, the cop asks for consent to search the car.  Most people will give it.  The law here is that the consent is valid if it's obtained during the time reasonably necessary to process the traffic violation.  Once the citation is issued, though, the lawful basis for the detention ceases, unless the officer comes up with a reasonable suspicion of further criminal activity during the stop.  If he doesn't, the consent is invalid, unless the officer can show that a reasonable person would have believed they were free to leave.  The judge tossed the search, and the 2nd District's opinion affirming that tells you just about everything you need to know about this type of situation.

A more troublesome result in a search case comes in the 5th District's decision in State v. Kithcart, in which the defendant contested the validity of a search warrant issued by a magistrate.  The court concluded that under Ohio law, only a "judge" - an elected official who acts in a judicial capacity - can sign a search warrant.  The court nonetheless concludes that the search is saved by the good faith exception to the warrant requirement.  I'm not sure how seeking a warrant from someone who's not authorized to issue one qualifies as "good faith."

We aren't family.  That rarest of birds, a reversal of a trial judge's decision to deny a motion to withdraw a plea, occurs in the 9th District's decision in State v. JeffreyAnd it took the death of both the defendant's sister and five-year-old daughter to accomplish that; the court found that attendance at the sister's impending funeral, plus planning for the daughter's, sufficiently clouded Jeffrey's thought processes that his plea couldn't be described as knowing, intelligent, and voluntary.  The puzzling aspect of the case is what Jeffrey hoped to accomplish with this:  after his plea to burglary and domestic violence, he was sentenced to three years of community control sanctions.

Yeah, sure.  The Lexis headnote for the 5th District's decision in State v. Marshall

Trial court did not err in denying defendant's request to remove juror for cause under R.C. 2945.25 as, although juror initially stated that she would have concerns over allegation that defendant had five prior OVI convictions, she stated that she could reserve any judgment about whether defendant was guilty or not until she heard all the evidence.

Words to live by.  From the 6th District's decision in State v. Taylor:   "The fact that counsel gave his opinion regarding the strength of the defendant's case or whether the defendant should accept a plea reflects a fulfillment of the duty of appointed counsel, whether the accused wants to hear it or not."

Wonder which demographic he's shooting for.


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