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February 2014 Archives

Friday Roundup

Big news from SCOTUS.  Not really.  The Potamac Nine did come down with a decision in a criminal case, Fernandez v. California.  The Highly Abbreviated Version of What Went Down:  the cops arrested Fernandez at his home, and he objected to a search.  An hour later, the cops drove back and got consent to search the home from Fernandez' girlfriend, who was living there.  The Court okayed the search.

There's something to talk about here, and we'll kick that around next week.  But what I found interesting was the last paragraph of Alito's opinion for the 6-3 majority.  It starts out, "Denying someone in [the girlfriend's] position the right to allow the police to enter her home would also show disrespect for her independence." 

Glad to see Alito taking up the pro-feminist cudgel, even it took being able to keep some guy in prison to do it.

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The Big Picture

I do a lot of appeals -- 170, my BFF Lexis tells me -- and I'm constantly amazed at how much I still learn.  I've had two recent epiphanies.  The first is that the best time to start practicing for oral argument is just before you write your brief.  The second is what an advantage it is to be the appellant.

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An unlikely story

Every trial is a story.  The prosecution has a story.  The defense has a story.  Oftentimes, the defense story is nothing more than that the prosecution hasn't proved their story beyond a reasonable doubt.

The prosecution's story in my rape case was that four black guys in their twenties and thirties picked up a drunk 19-year-old white girl from in front of the casino, took her back to their house, took turns raping her, then dropped her off at a local gas station, where she promptly called the police.

That's a pretty good story.  And since there was DNA all over the place -- including places you don't want to know about -- the defense story had to be consent:  that the girl chose to have serial sex with four guys, and her faculties were not impaired when she made that choice.

I liked the prosecution story better.  So did Frank and Rich, who were representing the other two defendants.  Didn't matter what we thought; any plea deal would have to be a package, with all three defendants signing on (the fourth wasn't caught), and Frank's guy wasn't going to cop to anything.

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What's Up in the 8th

So, which of the 8th District's decisions last week warrant extended discussion?   The only thing interesting about State v. Werber is the extended chronology of his mostly pro se sojourn through the legal system, beginning with his conviction in 2009 in a trial in which - you guessed it - he represented himself.  After a while, the recitation of every pitstop along the way to this latest decision begins to resemble a travelogue:  "if it's Tuesday, it must be the 26(B) motion to reopen the decision for ineffective assistance of trial counsel."  Werber's litany of woe centers on his claim that the court reporter in his first hearing filed a false transcript, which damned if I could make any sense of.  Besides, since it was déjà vu all over again:  Werber had made this same argument in one of his previous legal forays, so res judicata  took care of that.

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Case Update

If it seems like this hasn't been a big year for criminal decisions for SCOTUS, you're right.  There have only been a handful of them, and most have involved interpretation of Federal statutes or habeas law.  I just ran down the list SCOTUSblog provides of the Court's cases for this term, and while I'm relieved that the Court, in Sandifer v. U.S. Steel, finally resolved the pesky question of whether the time workers spend donning and doffing their protective gear is compensable under the Fair Labor Standards Act (it's not), the Court isn't providing much meat for this blog.  There are a few 4th Amendment decisions on tap - the one about anonymous tips forming the basis for drunk driving arrests, which was just argued last month, and two on whether police need a warrant to look through the log of a cell phone when the owner is arrested, which will be argued at the end of April - but that's about it.

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Reflections on the Dunn trial

If you want to know the significance of jury instructions in a criminal trial, just ask Michael Dunn.

Last November, Dunn and his fiancée pulled into a gas station near Jacksonville.  He got into a heated argument over some loud music in a neighboring car, thought he saw one of the passengers with what looked like a shotgun barrel, grabbed the handgun he had a permit to carry, and pumped ten rounds into the car, killing the person he thought had a gun.

The case got play because Dunn was a 47-year-old white man, Jordan Davis, the victim, was a 17-year-old black kid.  It didn't get quite get the play that the George Zimmerman/Trayvon Martin case got, but that's because there was a legitimate argument of self-defense in the latter.  Doesn't mean you buy into it, but the question boils down to whether Zimmerman should've brought a gun to a fistfight. 

Here?  No gun or anything else that could be considered as a weapon was found in Davis' car.  Dunn didn't report the incident to the police, instead driving off with his fiancée, having dinner and staying with her overnight before he was arrested the next day.  And not once in all that time did he mention to her about seeing a gun. 

If you're a gun rights/self-defense booster, this is not the hill you want to die on.

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What's Up in the 8th

The 8th District celebrated Valentine's Day in Chicago style, with a massacre on the lakefront:  besides the routine decision holding that the cops yet again screwed the pooch in a search case, the only case that comes close to going into the W column for defendants is State v. Campbell, where the court holds that Campbell was entitled to 363 days of jail time credit, reducing his 24-year sentence by a full 4%.

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Case Update

Another big decision on gun rights, but not from SCOTUS.  The Ohio Supreme Court hands down a couple of decisions, and a court of appeals entertains a Freudian interpretation of the burglary statute.

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Winning a search issue

If you're going to practice criminal law, you're going to handle a lot of drug cases.  If you handle a lot of drug cases, you need to understand search and seizure law. 

In the vast majority of drug cases, the question is not how your client came into possession of the drugs, but how the police did:  whether their seizure was "reasonable" under the 4th Amendment.  If it wasn't, then your client gets off.  If it was, then your client has no defense; there's no question the drugs were found on him. 

Whether there is a legitimate search issue will dictate the outcome in almost every drug case.  You need to know this stuff if you're going to be a good criminal defense lawyer.

And you can start by reading the 9th District's decision last week in State v. Harper.

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What's Up in the 8th

It was the best of times, it was the worst of times:  I won a case in the 8th District Thursday, and I lost a case in the 8th District Thursday.  Those two decisions constituted only 10% of the 8th's work in criminal cases for the week.  We also had a good search case, and more confusion on appellate review of sentencing.

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Case Update

It's always interesting to me how prosecutors keep coming up with different ways of charging people with crimes.  About a decade or so ago, there must have been a seminar where they taught prosecutors a nifty new way of using the tampering with evidence statute, which prohibits a person from concealing or destroying any item "with purpose to impair its value or availability as evidence in such proceeding or investigation."  All of a sudden, you had these cases popping up where your crackhead client saw the police approaching and with one of those decisions only a crackhead can make figured this was a good time to drop his crackpipe.  And now, in addition to being charged with a felony five drug possession, he's charged with felony three tampering with evidence.

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Harmless error and 404(B)

This week, we inched closer to learning whether Carl Morris will get a new trial on charges of raping his 9-year-old stepdaughter because the State introduced evidence that he propositioned his adult stepdaughter right after she got married, ejaculated into a towel after having sex with his wife, and kicked the dog when his wife would refuse to have sex.

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Discovery tactics

Is there such a thing as providing discovery too soon?  The 5th District thought the defense did exactly that, and rejected a speedy trial challenge a couple weeks back in State v. Johnson.

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What's up in the 8th

Our old friend Harmless Error stops by for a visit, and we acquaint ourselves with the Giggle Test, Judicial Nullification, and the Bad Man Doctrine.

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Case Update

The death yesterday of actor Philip Seymour Hoffman of a heroin overdose was not an isolated event.  Heroin use has undergone a revival of late; last year, heroin overdose deaths exceeded homicides in Cuyahoga County.  

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