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 down with one of its more liberal 4th Amendment decisions in 2006, holding in Georgia v. Randolph that the police can't use a co-tenant's consent to search a house if the other co-tenant is present and objects.  Last week, in the oral argument in Fernandez v. California, the defendant's attempt to expand that rule encountered substantial resistance.  When the police arrived at Fernandez' home in response to a domestic complaint, they found his girlfriend bruised and bloody.  Fernandez told them "I know my rights.  You can't come in."   The police arrested Fernandez for domestic violence, then returned later without a warrant and obtained the girlfriend's consent to search the house for evidence of a robbery, for which Fernandez was ultimately convicted.  Randolph was a 5-3 decision, and the same five-member majority is there, or with replacements (Sotomayor for Suitor, Kagan for Stephens) who would vote the same way, and those two plus Ginsberg expressed discomfort with the idea that the police can vitiate a co-tenant's objection by simply removing him from the scene.  But Kennedy and Breyer, who voted with the majority in Randolph, expressed deep misgivings about extending its reach, and it appears likely the Court will limit Randolph to physically present objectors.

The defendant in Rosemond v. US fared better in argument.  Rosemond had been convicted of aiding and abetting in the use of a firearm during a drug trafficking crime, and the instructions at trial allowed the jury to convict if he "actively participated" in the drug crime, and "knew his cohort used a firearm."  Everyone agreed that more is required, specifically, a showing that Rosemond had foreknowledge that a gun would be used.  Rosemond seems very likely to win on this narrow issue, but the Court's opinion could go a good bit further in defining what constitutes "aiding and abetting." 

The argument in Burrage v. US did not go well for the government, either.  Burrage was a heroin dealer, and after one of his clients died, he was prosecuted and convicted under a 1986 law which adds imprisonment up to life if the drug deal "results in death."  The doctors testified at Burrage's trial that they couldn't determine if the heroin caused the death, but the judge instructed the jury they could find Burrage guilty if the heroin contributed to the death.  Burrage's lawyer argued that the government had to prove "but for" causation - that the death wouldn't have resulted without the heroin use - and that it had to show that the death was foreseeable.  She fared poorly with the latter argument, but she had only to bat .500, and she seemed to:  the government's lawyer's insurmountable problem was that if the Congress had intended to allow the drug to be only a contributing cause, it could have plainly said so, instead of using the phrase, "results in death."

I'll have more on these when the decisions come out.

Down in Columbus, no oral arguments last week, but a bevy of them coming up.  Tomorrow will be Cuyahoga County Day, with two arguments scheduled on the intricacies of placing a defendant on community control  sanctions:  whether a court can impose a "time served" sentence -- releasing the defendant without placing him on supervision - and whether a pre-sentence report is required for to impose sanctions.  Thursday finds only one criminal case on the docket, but it's a bit more significant, especially to OVI practitioners:  a review of a 9th District decision affirming the trial court's determination that a motion to suppress in an OVI case wasn't sufficiently specific to warrant a hearing.

The court did come down with one decision, State v. Washington, its first real look at allied offenses since State v. Johnson three years ago.  We'll discuss that on Thursday.

In the courts of appeals...

The 2nd District's decision in State v. Martin provides a procedural lesson.  Martin was charged with domestic violence against his step-sister; the two lived in the same house, with Martin in the basement, the sister on the second floor, with the first being a common area.  Martin contended that he was not a family or household member, but the trial court determined that a step-sister and step-brother are related by "affinity."  The defendant pleads no contest so he can take that issue up, but the panel notes that while a no contest plea is not an admission of guilt, it is an admission of the facts of the complaint, and since the complaint alleges that Martin "did knowingly cause or attempt to cause physical harm to a family member or household member," Martin "essentially admitted that Witt was a member of his household when he assaulted her."   "By pleading no contest to domestic violence, Martin admitted the truth of the allegations in the indictment and waived his right to challenge what constitutes a 'family or household member.'"

The 2nd District seems to come up with decisions on goofy issues, and they don't disappoint in State v. WayneWayne decided to act out a frequent theme in pornography -- having sex with the babysitter -- but the consent issue was pretty muddy, complicated by her testimony that she was a lesbian, as a further reason for trying to reject Wayne's advances.  (In case you're wondering -- and you are -- the babysitter was 17.) The defense argued that this testimony violated the rape shield statute, but, the 2nd holds, that statute prohibits testimony as to prior sexual activity, not sexual orientation.

Finally, The 12th District tackles one of the great metaphorical questions of our time in State v. Brown:  when does failure to submit a urine specimen constitute "refusal" to submit to the test?  The line comes down on the side of Brown:  the court notes that Brown agreed to take the test, tried several times to provide a sample, and even drank multiple glasses of water.  Alas, not a dribble.  Under an "objective" standard -- perhaps, how would a reasonable man provide a urine sample? -- the court decides that this is failure, not refusal.  


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