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Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Case Update

If you're still crying in your beer because your March Madness bracket cratered - the ones in Warren Buffett's $1 billion challenge didn't even get out of the first round - cheer up.  You've got a chance to recoup your losses with SCOTUSblog's Supreme Court challenge:  picking the right outcome in six upcoming Supreme Court decisions.  Be forewarned:  only one criminal case in the six, with the others pertaining to patents, copyright restrictions, and one "involving post-judgment discovery and the Foreign Sovereign Immunities Act of 1976."  (Time out while you try to temper your enthusiasm.)  My picks on those would be dictated by coin flips, because I'd rather pluck out my eyeballs than (a) read up about those cases, or (b) go back to law school, which seems to be the requirement for entering the challenge.  You also have to predict whether the Court will grant cert in six other cases, and at least four of those - two dealing with the 6th Amendment, one with the 4th, and one with the 2nd - look vastly more interesting.  Maybe they'll take in one of those cases and I can write about that, instead of making up stuff about basketball tournaments.

I can't even write about that for the Ohio Supreme Court; no decisions this week.  The court likes to pride itself on the theory that it doesn't do "error correction" - it's there to make broad, sweeping proclamations of law.  So last week they had a case that pretty much looks like error correction:  one where the 8th threw out convictions for kidnapping, importuning, gross sexual imposition, and a bevy of other sex-related charges because none of the state's witnesses actually took the time to identify the defendant in court.  At least, that's what it sounded like from the court's preview, so I'll watch the oral argument and give you the play-by-play.

On to the courts of appeal, where the pickings are pretty slim, too.

We're getting to the point where some appellate decisions are coming out on the new "open discovery" rules adopted in 2010.  It's a rather desultory lot, and the 1st District adds to that in State v. WilliamsThe Hamilton County prosecutor has adopted a general rule of nondisclosure of witnesses in homicide cases, making the assertion that "in virtually every homicide case, coercion and threats to the witnesses now play a critical role. With today's broad expansion of information via the Internet or cell phones, witnesses' names quickly spread through the communities involved."  The court finds that "these generalized assertions are insufficient to meet the requirement" of nondisclosure under the rule, but it turns out to be all good:  the police officer made more specific allegations, and the defense counsel was given a continuance of three days to investigate.

The defense attorney falls on her sword in State v. SmithAt the sentencing after Smith's conviction of counterfeiting and possession of criminal tools, she says that she learned from the presentence investigation report that Smith suffered from major depressive disorder with psychotic features, and if she'd known that, she would have urged Smith to take his medication, in which case he might have taken the plea deal offered, or at least wouldn't have insisted on taking the stand, during which time he made an utter idiot himself.  (Today's Tip for Criminals:  if you're being questioned as to why you came into possession of several counterfeit hundred-dollar bills, telling the cops that you got them as "change" isn't Plan A.)  The 8th District shrugs it off, finding neither deficient performance nor any likelihood that the result would have changed.  Probably the weirdest thing about the case:  Smith tried to buy a bag of marijuana from a restaurant employee and asked if the guy could make change for a $100 bill, and the employee turned him in.

We've all been tempted to try the "Stupid Man" defense:  that our client must be innocent because there's no way somebody would have been so stupid as to do what the prosecution claims he did.  The inevitable outcome of this argument is on display in the 3rd District's decision in State v. Coleman.  Coleman was stopped because he cut off another car after he'd just passed a police cruiser, and argued that he wouldn't have been that dumb.  The panel rejects that:  "If this Court were to catalogue the various foolish missteps of the convicted criminals appearing before it, much ink would be wasted." 

I've got some nominees.  In the 6th District's decision in Toledo v. Johnson, we learn that the Toledo Municipal Court has a place called the "obstreperous defendant's room," which is just what you think it is.


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