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

The Holy Grail for lawyers is the class action:  If you can figure out how somebody might have done something wrong, no matter how minimal, to a bunch of people, you could be in for a big payday.  Your clients, not so much, as typified by the suit against the makers of Grand Theft Auto, which I detailed here:   the plaintiff class would have received a total of $26,050, with the vast majority of them receiving a $5 coupon toward the purchase of their next video game, while the lawyers pocketed $1 million.  (Emphasis on "would have"; the court decertified the class, effectively ending the suit.)  The Supreme Court, which begins its 2013 Term in a month, might take a look at the situation in a case involving Facebook.  The company was the target of a class action for its Beacon program, which automatically broadcast users' purchases to other members.  The "parties" reached a settlement, but in this case that term apparently referred to the plaintiffs' lawyers:  they would receive $3 million, Facebook would pay $6.5 million to set up a charitable organization (which they'd control) to educate the public about Internet privacy, and the plaintiffs would get nothing.  The Supreme Court's been asked to review the case.

And a whole bunch of others; in fact, it's already granted review in about 50 cases.  We'll talk about the pending criminal cases on the Court's docket on Thursday.

I'm sure the Ohio Supreme Court will decide another criminal case in my lifetime, but that window is closing.  It came close last week, in In re D.S., which involved the question of whether the defendant's failure to respond to discovery tolled the time for speedy trial.  "Involved," not "resolved"; the court dismissed the appeal as having been improvidently granted.  O'Connor and O'Donnell dissented, the former's opinion providing a lengthy discussion of reciprocal discovery duties, and I probably would've read it more closely if it mattered.  Someday it might, and we'll discuss it then.

It's been three weeks since I did my last Case Update, so let's see what the courts of appeals have been up to in that time.

State v. Presley involved a tragic situation:  Presley struck a child who darted out in front of his car, killing her.  He fled the scene, but turned himself in 30 minutes later.  No alcohol or errant driving on his part occurred, but he was charged with hit-skip, which becomes a third-degree felony instead of a misdemeanor if the accident results in death.  The trial court found this to be an 8th Amendment violation and convicts Presley only of the misdemeanor offense.  The 2nd District finds this to be error -- a punishment is "cruel and unusual" only where it would be "considered shocking to any reasonable person."  (Nothing subjective about that test, huh?)  It doesn't matter to Presley; the court concludes that since the judge convicted him of the misdemeanor, double jeopardy bars any change in that.

The 12th District's decision in State v. Ray provides some lessons in self-defense.  Ray, an 18-year-old, was being pummeled by his stepfather during an altercation in the home, grabbed a knife, and killed his stepfather.  The defense asked for a jury instruction that Ray had no duty to retreat before using self-defense, because he was in his own home, but the trial court refused, deciding that the instruction didn't apply because the stepfather was a co-inhabitant of the house.  Doesn't matter, says the appellant panel:  a person in his own home has no duty to retreat before using deadly force, regardless of whether he's defending against an intruder or someone who also has a privilege to be in the home.  That doesn't help Ray, though; the panel concludes that the failure to give the instruction wasn't prejudicial, since Ray wasn't entitled to claim self-defense in the first place:  he was not under any reasonable fear of death or great bodily harm, and thus his use of deadly force was excessive. 

Sometimes, you can only be so lucky, as Donald Billeter can attest.  He pled guilty to escape for violating the terms of post-release control, but then claimed that he couldn't be convicted of escape because the trial court had improperly imposed PRC on the underlying offense.  The 5th District didn't buy it, but the Supreme Court did in State v. Billeter (discussed here), holding that an error in imposition of PRC meant that the defendant had never validly been placed on it, and so couldn't be convicted of violating its conditions.  The 5th District gets the last laugh, though; in Billeter v. State they reject Billeter's claim for wrongful imprisonment, holding that he doesn't meet the requirements of the statute because he pled guilty.

The defendant in the 11th District's decision in State v. Blair benefits from a 123-year-old Ohio Supreme Court decision.  He'd been charged with sexual battery based on a relationship with his step-daughter, but the stipulated facts indicated that the relationship occurred after the step-daughter's mother had died, and she had turned 18.  Back in 1890, the Supreme Court had ruled that a man couldn't be prosecuted for incest with his step-daughter, because the termination of the marriage between the step-father and the step-daughter's mother, by divorce or death, also terminated the relationship between the step-father and the step-daughter. 

Finally, the 8th District's decision State v. Jones presents a sad situation, but it could've been much worse:   Jones pointed a gun at some people, a friend pushed it up just as he fired, and he wound up pleading to a count of discharging a firearm on prohibited premises with a gun spec and getting four years, instead of a murder charge and who knows how long.  He argues on appeal that the juvenile court abused its discretion in binding him over for trial as an adult, but you're not going to win that argument when you've picked up 22 juvenile cases by the tender age of 16.  Still, as the concurring opinion points out, "The placement of an immature child into the adult prison population will forever change Jones, and experience tells us that he will most likely not be changed for the better."  Society may have lost Jones before this, but it almost assuredly has now.


Recent Entries

  • January 17, 2018
    What's Up in the 8th
    When not to decide cases on allied offenses and pre-indictment delay
  • January 11, 2018
    Case Update
    Three new decisions from the Ohio Supreme Court
  • January 10, 2018
    To the barricades!
    Why I'm a threat to the Ohio state government
  • January 5, 2018
    Search and seizure in the digital age
    Do the cops need a warrant to get cell phone data?
  • January 3, 2018
    What's Up in the 8th
    We talk about me a lot, but there's some other stuff, too
  • January 2, 2018
    He's baaaack
    So I thought I'd start my first post in six weeks by explaining why it's my first post in six weeks. Ever run into somebody and ask the obligatory question, "How are you doing?" And they proceed to tell you...
  • 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