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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 »


November 2014 Archives

A switch in time

Back in 2000, Chaney and Moore decided to rob a Hard Rock Café.  Chaney was the mastermind -- such as it is -- and was the one who had the gun, and he was the one who terrorized the two employees.  One testified that he called one of the robbers the bad guy and the other the nice guy:

What I meant by that, was the bad guy was the guy who had the gun up to my temple. And the nice guy is the guy -- is when I asked him, please don't tape my face, he did not. And he also said that nobody was going to get hurt, and reassured us a little bit.

Chaney was the bad guy, and copped a plea.  He got nine years.  Moore was the nice guy, and went to trial.  He was convicted, and sentenced to thirty-three years.

That's a helluva trial tax.  Last week the 8th District reversed itself and decided he shouldn't have had to pay it.

Continue reading "A switch in time" »

What's Up in the 8th

Not a good week for common pleas judges up here by the Lakeside.  Just shy of a dozen decisions handed down by the 8th, and just shy of half of them go back to the trial court, with no fewer than eight outright reversals.  That includes civil cases, and I'm guessing you haven't been lying awake nights wondering whether the court was going to uphold Royal Property Investment Group's right to have the trial court enforce its settlement against Bangs Hair Salon.  (Spoiler alert:  it did.)  But if you practice criminal law, there are a number of decisions last week you will want to know about, starting with State v. Jackson.

Good news.  You've come to the right place.

Continue reading "What's Up in the 8th" »

404(B) and harmless error

So Carl Morris gets a new trial.  He was convicted back in 2009 of raping his stepdaughter when she was in the 2nd grade, with the prosecution introducing evidence that he propositioned his adult stepdaughter, and kicked the dog if his wife refused to have sex with him. 

If you're wondering what the hell that has to do with child rape, you're not alone:  the 9th District reversed, finding that to be improper.  The Supreme Court reversed that, holding that the 9th should have reviewed the error for abuse of discretion instead of de novo.  On remand, the 9th stuck to its guns, again reversing the conviction.  So up it went again, this time on the argument of what standard of harmless error should have been applied:  the lead opinion (one judge dissented, and the other concurred only in judgment) had applied the standard for constitutional error:  harmless beyond a reasonable doubt.

And last week, the Supreme Court, by a 4-3 vote, decided that was proper

Continue reading "404(B) and harmless error" »

Timing is everything

Okay, so I didn't post anything yesterday.  I had to give a presentation - the annual case update - at the OACDL Death Penalty Seminar yesterday.  I'm scheduled for nine o'clock.  Riddle me this, Batman:  how long does it take to drive from Cleveland to Columbus?  About two hours, but figure a little more because they're holding the seminar at the Sheraton in the middle of downtown, and I'll be getting there at the tail end of rush hour.  And then I have my time-honored tradition on any trip to Columbus of stopping for breakfast at the Waffle House in Medina.  If you have self-esteem issues, stop at the Waffle House.  You'll come out feeling better about yourself.  Or worse, depending upon what you had to eat. 

So why did I leave my house at 6:40, having to stop for gasoline to boot?  After filling up, I fired up the navigation system in the Beemer, plugged in the address, then checked the time it figured I'd arrive. 

8:48 A.M. 

Oh my.  What to do?

Continue reading "Timing is everything" »

Right v. Just

Statue.jpgThe Supreme Court's 2009 decision in Padilla v. Kentucky is interesting for a couple of reasons.  First, it breaks new ground on the law on effective assistance of counsel.  Padilla was 52, and had moved to the US in the 1960's, even serving in the Army in Vietnam, but had never become a citizen.  He entered a plea to a drug offense in 2002, his lawyer telling him not to worry about his immigration status because he'd been in the country so long.  BZZZT!!  Wrong answer.  The lower courts brushed aside Padilla's claim that his lawyer had been ineffective, holding that this didn't apply to advice on collateral matters.  The Supreme Court held to the contrary.

Continue reading "Right v. Just" »

Okay, here's the deal

I had a lot of stuff to do this weekend.  The 8th District managed to to come down with only three decisions.  That was three more than SCOTUS or the Ohio Supreme Court produced.  My computer's on the fritz (I've had to reboot it three times already this morning.)  The sun's in my eyes.  The other team doesn't play fair.

Waa waa waa.

So that's my semi-pathetic excuse for not having a post for this morning, other than this short whine.  We'll do something different this week, and I'll have three posts, but they'll be tomorrow, Wednesday, and Friday.  See you then.

Continue reading "Okay, here's the deal" »


A lot of people have their stories about how the criminal law has been Federalized to a ridiculous extent.  Carol Bond had hers; upset when she found out that her best friend had been having an affair with her husband, Bond got some chemicals from the lab where she worked and through Amazon, and spread the mixture on the ex-friend's mailbox, doorknob, and car.  This resulted in the woman getting a mild rash, which was relieved by rinsing it with soap and water.  It also resulted in Federal prosecutors deciding to charge Bond with a violation of the Federal law implementing the Vienna Chemical Weapons Convention.  Her resultant conviction and six-year prison sentence was finally tossed out by the Supreme Court five months ago, on the basis that Congress could not have intended the statute to be used in this fashion.

Well, there must be something in the water that Federal prosecutors drink, because John Yates has an even better story.

Continue reading "Overreach" »

Two from Columbus

It doesn't take much to get an arrest warrant in Toledo, as Brian Hoffman found out.  In 2011, a city detective filed three criminal complaints and warrant requests for Hoffman, charging him with theft, criminal damaging, and "house stripping prohibited."  The complaints cited the statutes, identified the victims, locations, and property taken.  It made no mention of how Hoffman was supposed to have committed the offenses; the only thing linking him to the crimes was that the officer asked the clerk to issue the complaint against him.

Last week, in State v. Hoffman, the Supreme Court had no trouble concluding that the warrant was invalid.  Not much comfort to Hoffman, because at the same time the court affirmed his life-without- parole sentence.

Continue reading "Two from Columbus" »

What's Up in the 8th

Ah, for those halcyon days when just about every week would bring news that I'd chalked up another W in an appeal.  True, those days existed largely in my fevered imagination, but not entirely.  Running a search for "COUNSEL(Bensing)" through my BFF Lexis, the modern equivalent of asking the mirror who's the fairest of them all, shows that through September, I'd been batting .500 in sixteen criminal appeals.  Not too shabby.

But that was then.  Two weeks ago I lost State v. Spence, a case on consecutive sentencing, because the 8th decided that the Supreme Court's decision in State v. Bonnell had ushered in a kinder, gentler - at least to trial judges - regimen for the findings requirement for consecutive sentences.  And last week comes State v. McDuffie, where I thought I had a winner because the trial judge had thoroughly mangled the instructions on defense of others, commingling it with self-defense and leaving half of it off.  True that, says the court - and I'm quoting from the opinion here - but decides that it doesn't matter because the defendant wasn't entitled to an instruction on the subject.

Continue reading "What's Up in the 8th" »

Case Update

SCOTUS had oral arguments in two criminal cases last week.  One, Yates v. US, we'll talk about on Thursday.  The other was Johnson v. US, which presented the Armed Career Criminal Act, the federal statute that imposes a fifteen-year mandatory minimum prison sentence if the defendant has been convicted of three prior "violent" felonies.  More particularly:  does a state felony conviction for possessing a sawed-off shotgun qualifies under the ACCA's residual clause, which defines a violent felony as one that "involves conduct that presents a serious potential risk of injury"?  This is the fifth time in seven years that SCOTUS has had to tackle the residual clause, and even the justices lamented that the previous four had provided little guidance.  Those that bothered to comment at all; Scalia, who topped all justices with an average of 19.6 questions per oral argument last year, asked only two, and Kennedy slipped into Thomasonian silence.

The big news out of the Court, though, was the 6th Circuit's 2-1 decision upholding the gay marriage ban in Ohio, Michigan, Kentucky, and Tennessee.  It was the first victory for opponents of same sex marriage; the 4th, 7th, 9th, and 10th Circuits have all upheld lower court decisions striking down the bans.  A month ago, the Supreme Court denied cert in appeals from those decisions.  The 6th Circuit decision creates the split in circuits that will probably compel the Court to have the final say in the matter.

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Simple question, simple answer

Ohio's Corrupt Practices Activity statute, modeled after the Federal RICO law, does exactly what it says:  it prohibits one employed or associated with an enterprise from engaging in two or more incidents of corrupt activity (basically, committing crimes).  That's what the Ohio Supreme Court held last week in State v. Griffin by a 6-1 vote

Of course, you have questions.  Probably the biggest is, "what is an 'enterprise'"?  If Joe and Bill get high together, and each goes out (separately) and steals stuff to support their habit, is that an enterprise?  If Bob and Jack each burglarize vacant houses to steal copper out of them, and occasionally do that together, are they an enterprise?

Don't look to Griffin for the answer.

Continue reading "Simple question, simple answer" »

A new look at pre-indictment delay

Just over a month ago, I wrote a post about the spate of "cold" rape cases, complaining about how difficult it is to get a case dismissed for pre-indictment delay.  After the 8th District's decision in State v. Mack, it got a whole lot easier.

Continue reading "A new look at pre-indictment delay" »

What's Up in the 8th

My perusal of the 8th District's dozen decisions in criminal cases last week doesn't get off to a promising start.  There's the fourth appeal from a 28-year sentence rape and felonious assault with an RVO spec, a pro se appeal from an order denying a motion to set up a payment plan for courts costs, and a pro se appeal in a 1987 murder case from a denial for DNA testing on boots that don't exist.  But things pick up, and we have what is probably the best decision I've seen from the 8th in months, and what is the only real win for defendants.  (Given my bias, I don't dismiss the thought that the two are coincidental.)  We'll talk about that one tomorrow.

Continue reading "What's Up in the 8th" »

Case Update

SCOTUS resumes oral arguments with this week, with most of the attention focused on Zivotsky v. KerryThe American parents of Zivotsky, a twelve year old boy who was born in Jerusalem, want his passport to show that he was born in Israel.  Preventing that is the US government's policy of neutrality with regard to which nation can claim Jerusalem for its own, and its belief that an official US document showing Jerusalem to be in Israel would complicate matters.  That runs up against a 2002 law passed by Congress which allows US citizens born in Jerusalem to have their passports show Israel as their birthplace.  Bush and Obama refused to do so, arguing that the law encroached upon the president's essentially exclusive power over foreign policy.  The Court doesn't often get involved in such matters, but it will here.

A couple of criminal cases are on tap, both of seemingly limited interest since they involve interpretation of Federal statutes, but which have attracted numerous amici to press issues beyond that.  One case will determine whether possession of a short-barreled shotgun is a violent felony under the Armed Career Criminal Act; that's attracted the attention of groups on both sides of the gun rights debate.  The other concerns the Sarbanes-Oxley Act, which makes it a crime to destroy "any record, document, or tangible object" with the intent to impede an investigation.  The defendant had destroyed three undersized fish in an attempt to avoid a civil citation.  That case has also attracted a flock of amicus briefs, mainly addressing the ridiculous overcriminalization of Federal law.

Continue reading "Case Update" »

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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