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

There are estimates that as many as 50% of those charged with crimes are mentally ill, and mental illness was the feature in two Supreme Court cases a week apart.  Today, the Court will hear argument in Brumfield v. Cain.  Brumfield was convicted of murder and sentenced to die in 1993, and he argues that the Eighth Amendment requires that there be a separate hearing focused solely on whether the defendant is mentally disabled, and thus cannot be executed under the Supreme Court's decision in Atkins v. VirginiaAtkins came nine years after Brumfield was sentenced to die, so there's some merit to the point that the hearing then wouldn't have been informed by Atkins.  Whether Brumfield is even mentally disabled is arguable, at least to the state:  they point out that he "was subjected to six evaluations before the age of 18 and not one diagnosed him" as disabled.

A week ago, the Court heard oral arguments in San Francisco v. Sheehan.  Police responded to a call that Sheehan, who was also mentally disabled, was causing a disturbance in her home, and found her highly agitated and holding a small bread knife.  So they shot her five times.  She lived, which is somewhat unusual; hundreds of mentally ill people are killed by the police each year, as Sotomayor highlighted in the argument.  The issue before the Court was whether the police should have to take such a disability into account, and use a less confrontational method.  But no sooner had the lawyer for San Francisco opened her mouth, when Scalia chimed in with his view of how the issue should be framed:  whether the law protects "armed and violent suspects who are disabled."  Well, now that you phrase it that way... 

By the way, if you're in D.C., you might want to stop off and catch a play called The Originalist, focused on Scalia, which the author explains is intended "to use this combative, almost operatic figure to explore how two people on opposite sides of a political, social, and even legal spectrum can take a step toward one another, begin to listen, learn to hear and respect the other's argument."

I'll wait 'til it hits Redbox. 

We talked about the lone Ohio Supreme Court decision last week, State v. Ruff, on Thursday, so let's head over to the courts of appeals...

As the numberless legions of my faithful readers can attest, I am no fan of Anders briefs, regarding them as the equivalent of the trial lawyer getting up in voir dire and announcing, "I got nothing," then walking out of the courtroom.  There is a time for them, but that time wasn't in State v. Hertel.  Hertel's main argument centers on the denial of his motion for new trial, an issue which is foreclosed by the fact that he pled guilty.  But here's the thing:  while the opinion doesn't say when the crimes were committed, he was sentenced to 5 to 25 years on the rape counts.  That's pre-SB 2 sentencing law.  And you have a very valid argument that HB 86 controls -- I explained the argument here, and the 8th District found that way in State v. Jackson -- so Hertel should've gotten a determinate sentence of 3 to 11 years.  But nobody makes that argument, and the 5th District affirms his conviction and sentence.

Being a bad ass in prison has consequences, as the defendant in State v. Seymour learns.  He was originally sentenced to six years in prison on an aggravated burglary charge, but the appellate court sent it back because that charge should have merged with several others.  On the remand, the judge gave him seven years.

The law doesn't flatly prohibit an increased sentence on a remand; that only creates a presumption of vindictiveness.  The appellate court again sent it back, since the judge hadn't given any reasons overcoming the presumption.  The judge gave Seymour seven years again, this time pointing to the prison's institutional summary, which showed that instead of taking courses resulting in essentially useless certificates, Seymour had to be transferred to another prison because he'd become a "very high" risk, due to starting fights, stealing from the commissary, threatening guards, and confessing to "feeling homicidal."  Third time's the charm; the 12th District affirms. 

Sometimes, you've got to help judges give you what you want.  In State v. Peterson, the judge gives Peterson judicial release on an aggravated robbery and felonious assault, but the 8th District reverses that on appeal.  Why?  Because the judicial release statute requires that a judge granting judicial release for a 1st or 2nd degree felony (or one with a presumption of prison time) make a finding that release and placement on probation would adequately punish the offender, and would not demean the seriousness of the crime.  That's the same requirement for giving community control sanctions for those offenses in the original sentencing.  So make sure the judge knows to say that.

Finally, in State v. Ruffin, the defendant claims that his relationship with his assigned lawyer was irretrievably broken, and he should have gotten a new one.  He points to the lawyer's failure to call certain witnesses, as well as his response to Ruffin's insistence that he file a motion because Ruffin hadn't been served with a copy of the indictment:  counsel "went as far as calling me an idiot and laughing at me."  The 5th District rejects the claim, concluding that "the conflict between Ruffin and his attorney stemmed primarily from counsel's failure to paint a rosy picture of Ruffin's chances for full exoneration at trial."  Yeah, we've all taken that ride, haven't we?

Search

Recent Entries

  • April 26, 2017
    MIA
    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