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 march toward plutocracy continues with the Supreme Court's decision in McCutcheon v. Federal Election Commission, striking down the aggregate limits for contributions to candidates for federal office.  That's not an unreasonable position; it's hard to make the argument that my $2,600 contribution to one congressional candidate will not be corruptive, but my $2,600 contribution to each of twenty congressional candidates will be.  (Note to congressional candidates reading this:  the check's in the mail.  Really.  No, really.)  Still, the decision occurred with the backdrop of John Kasich, Scott Walker, Chris Christie, and Jeb Bush trundling off to Las Vegas to curry favor with Sheldon Adelson, the world's eighth-richest person, who'd announced that he was looking for a Republican candidate to back in the presidential contest in two years.  That announcement wasn't taken lightly; Adelson contributed $93 million in 2012.

The oral argument on whether police need a search warrant to examine a cell phone's contents is coming at the end of the month.  We're still waiting the decisions in several other criminal cases, so maybe we'll have something to talk about before then.

No decisions from Columbus, but a couple of cases on tap for oral argument this week.  The most interesting is State v. Hoffman.  Hoffman was arrested on the basis of a warrant, and evidence seized at his arrest led to a search warrant, which produced other evidence ultimately resulting in his conviction of aggravated murder.  The warrant, it turns out, was issued by a police officer, without any showing of probable cause or approval by a magistrate, which was apparently the policy of the Toledo police department for the past 17 years.  Hoffman argues that the warrant was invalid, and all the evidence has to be thrown out, while the State argues that the resultant searches are saved by the good faith exception to the warrant requirement.  We'll talk about that one on Thursday.

On to the courts of appeals...

You'd be hard-pressed to find reversals of a trial judge's denial of post-conviction relief, but the 6th District's decision in State v. Pheils provides one.  Pheils had been convicted of reckless homicide in a "shaken baby" case, and his conviction was affirmed, the panel rejecting his claim of ineffective assistance of counsel.  He takes another shot at it in post-conviction relief, including in it an affidavit from his trial attorney stating that although the defense investigator had identified numerous potential experts to testify as to the cause of death, the attorney hadn't talked to any of them.  Pheils also included an affidavit from a forensic pathologist who found that the autopsy report showed clear signs of myocarditis, which could cut off blood flow to the brain, and cause many of the symptoms the coroner observed. 

The trial court denied the motion without a hearing, but the panel reversed, finding the failure of the defense attorney to investigate the matter was an "inexcusable omission," and the new report provided proof of prejudice.

What the opinion doesn't tell you is that counsel's "omission" was largely due to the refusal of the trial court to grant money for an expert.  The lawyer, whom I know as an excellent attorney, fell on his sword in the post-conviction hearing, and did what he could to correct an obvious injustice.

You might think that the US Supreme Court's 2011 decision in Jones v. US requires the police to obtain a warrant before putting a GPS device on a car.  If you'd read my discussion of the case when it came out, you'd know better, and so does the 10th District in State v. SullivanThey recognize that all Jones decided was that placement of the GPS was a search within the meaning of the 4th Amendment, but that the government had forfeited the questions of whether there was probable cause for the placement, or whether a warrant was needed, by not raising the issues below.  The 10th decides several of the issues unanswered by Jones, holding that probable cause, rather than reasonable suspicion, is necessary, that the placement doesn't fall within the automobile exception to the warrant requirement, and that a warrant is required.  It's a thorough and well-researched opinion, and if you've got a GPS case, you can start here.

Finally, an unusual decision from the 9th District in State v. Charlton.  Charlton was convicted of rape, with the victim alleging that Charlton, a stranger, broke into her house, forced her onto a bed, and sexually assaulted her.  On cross-examination, though, Charlton, who was acting as his own attorney, asked numerous questions which revealed that he had extensive knowledge of her personal life - including that her dog had arthritis and that she fed him chicken - wholly inconsistent with the victim's account of Charlton as a random attacker.  The majority concludes that given the deferential standard, the evidence is sufficient for conviction, but finds that the jury was unreasonable in its consideration of the credibility of the victim.  The dissenter, though, believes that it's the jury's province to resolve inconsistencies.  And the dissent prevails:  Ohio law requires the concurrence of all three members of the panel to reverse a conviction on manifest weight grounds, so off Charlton goes to do his prison term.


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