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

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.

The Ohio Supreme Court was busy last week, handing down a dozen decisions, eleven of which found their way into my Do Not Care file.  The survivor was State v. AndersonThree years ago, in State v. Chambliss, the court overruled a twenty-year-old precedent and held that removal of a  retained attorney was immediately appealable; prior to Chambliss, the defendant had to endure a trial with his new attorney, then appeal.  When Chambliss came down, I wrote that it may portend a change to the rule on double jeopardy, which was also based on precedents holding that denying a claim wasn't appealable.  The unanimous opinion in Anderson bases its result on subsequent statutory changes to what constitutes a final appealable order, and those who find this a worthy subject of further discussion are respectfully directed to the opinion. 

For the rest of us, there are two takeaways from Anderson.  The first, obviously, is that a denial of double jeopardy motion is now appealable, when it wasn't two weeks ago.  The second is that facts do matter in an appeal.  This would've been Anderson's sixth trial for murder for a killing that occurred in June of 2003.  The sole conviction was reversed on appeal, and four others resulted in mistrials:  two because of hung juries, one because of a witness' improper and unduly prejudicial comment, and one because the defense attorney fell asleep during voir dire. 

Here's the situation:  you're representing a client charged with domestic violence and intimidation.  During voir dire, the State notifies the judge that it had a jailhouse recording of a conversation between the victim and the defendant.  You listen to the tape, which contained "comments of an intimidating nature," but also contained several remarks by the victim regarding conversations she'd supposedly had with you.  You tell the court that this might compromise your representation of the defendant because the jury might believe you were part of a plot to persuade the witness not to show up; the judge agrees, and allows you to withdraw.

And after lunch, you come back, announce that the parties have arrived a plea bargain, and proceed to handle the plea hearing.  See a problem with that?  In State v. Bailey, the 2nd District did, too, vacating the plea because once the lawyer withdrew, he had no business negotiating a plea bargain. 

The 9th District is beginning to give the 8th a run for its money for title of Most 4th-Amendment-Friendly Court in the State, and inches closer with its decision last week in State v. RobinsonThe police arrested Cleophus Thompson when they found him pushing a stolen car.  (Hint to would-be criminals:  the purpose of stealing a car is so that you can drive somewhere.)  Thompson said he would be willing to give the cops some info to help his situation, and told them he was on his way to make a drug deal with Robinson.  He described where Robinson lived, and that he would be driving an SUV.  Other officers went to Robinson's apartment, and saw an SUV parked in the back.  The officers then directed Thompson to make a phone call to Robinson, which he did; it was no more than 15 to 20 seconds long, and there was no mention of drugs.  Thompson told Robinson he was at a Taco Bell, and to meet him there.  The cops watching the apartment saw an SUV drive off, but couldn't tell who was in it.  Instead of turning toward the Taco Bell, the SUV turned in another direction, pulled into a drive-through, then started to return to the apartment.  The cops stopped it, found Robinson driving it, and discovered drug paraphernalia, which led to a search warrant for the apartment and the further discovery of 38 grams of crack, and an eventual seven-year prison stretch for Robinson.

The 9th does a nice job of distinguishing between the three types of informants - anonymous, those from the "criminal milieu," and citizen-informants -  and decides that Thompson falls into the former category; he hadn't established a record for credibility like many informants have, because he hadn't given information previously.  With an anonymous informant, there has to be some corroborating evidence.  A prediction of future movements can do the trick, but Robinson's not going to Taco Bell pretty much blew that up.  So bye-bye goes the stop, bye-bye goes the search warrant, and bye-bye goes the case.

Bullshit Traffic Stop of the Week.™  In State v. Rastbichler, the police were conducting surveillance of a house in response to complaints of drug activity, when they observed a vehicle with an Indiana license plate pass by their car and stop in front of a house.  "Officer Gustwiler observed that the driver of the vehicle failed to signal before it pulled over and parked in front the residence. At that point, Officer Gustwiler and Coleman decided to stop the vehicle and issue a traffic citation to the driver."  Yeah, I'm sure it was the failure to put on their turn signal before pulling over to the curb which prompted the stop.  The 2nd District affirmed the denial of the motion to suppress.


Recent Entries

  • April 26, 2017
    Like Mark Twain, rumors of my demise have been greatly exaggerated. Except I am pretty sure he's actually dead, while I am not, and for that matter, nobody's spreading rumors that I am. Great lead, huh? The nice thing about...
  • April 20, 2017
    The Supreme Court takes a look at the trial tax
    And you thought this was the week you only had to worry about income taxes
  • April 18, 2017
    What's Up in the 8th
    Remembering Warren Zevon, and the Fourth Amendment lives
  • April 17, 2017
    Case Update
    Structural error, prejudice, and police run amok.
  • April 13, 2017
    Some arguments on sentencing
    Why oral arguments can be fun, even when they're not yours
  • April 12, 2017
    What's Up in the 8th
    Oh fun: declarations against interest v. non-hearsay. Also, the difference between not guilty and innocent, and Ohio's statute penalizing the refusal to take chemical test in a DUI case goes bye-bye
  • April 11, 2017
    Case Update
    Filibusters, and appellate cases on all the ways lawyers can screw up.
  • April 7, 2017
    Change of course
    A new approach in my client-attorney relationships
  • April 4, 2017
    What's Up in the 8th
    A true rocket docket, and Anthony Sowell pops up again
  • April 3, 2017
    Case Update
    Free merchant speech, an argument on Brady, another look at Creech