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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 »


April 2015 Archives


I need to take a break from blogging for a couple of weeks.  I've got some family medical issues to deal with, and work's been backing up.

I'll see you back here on May 4.

Continue reading "Hiatus" »

The jurors speak

The sentencing hearing is the single most important proceeding in the criminal justice system, because it determines the outcome in about 98% of criminal cases.  Preparing for the sentencing hearing is just as important as preparing for the trial.  Most of the time, besides you, your client is the only one who's going to be speaking for the defense.  It's usually good, though, to have someone speak on his behalf, like a family member, an employer, a pastor...

Or one of the jurors at his trial.

Continue reading "The jurors speak" »

What's Up in the 8th

SB 2 went into effect in July of 1996.  Megan's Law became effective in July of the following year.  The new open discovery rules took effect in July of 2010.  My birthday is in July.

Coincidence?  I think not.  And each of those dates is the subject of a decision by the 8th District last week.  Well, my birthday not so much.  But coincidence or not, it's the first time in several weeks we've had any defense wins.

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

Case Update

No decisions from SCOTUS last week, as everybody prepares for the oral arguments in the same-sex marriage cases two weeks from tomorrow.  SCOTUSblog reviews some of the amicus briefs which have been filed, including one from South Carolina which raises the absurd, albeit historically accurate, argument that since the Framers of the 14th Amendment intended to allow discrimination against women, they wouldn't have had any problems discriminating against gays.

SCOTUSblog has several interesting features, and one is the Petition of the Day:  each day, they highlight one of the ten thousand or so petitions for certiorari that the Court receives.  Friday's was Manzano v. Indiana, which presented the following issue:

Whether, when a criminal defendant seeks to vacate a guilty plea on the ground that defense counsel rendered ineffective assistance, in order to establish prejudice the defendant must show that but for counsel's errors he would not have pleaded guilty and would have insisted on going to trial (as this Court, all twelve federal circuits, and virtually all the states hold), or whether the defendant must also show that had he gone to trial he would have been acquitted (as the Indiana Supreme Court persists in holding).

Think somebody's pissed?

Continue reading "Case Update" »

The perils of snitching

I just renewed my application to stay on the district court's CJA list.  That's court-appointed counsel for Federal criminal cases, and for reasons I really can't fathom, I didn't apply to get on the list until three years ago.  The differences between that and handling state court appointments couldn't be starker.  I had a sentencing on Tuesday set for 11:00 AM.  I showed up at precisely 11, then realized I hadn't retrieved my glasses, keys, and cellphone from the metal detector station.  I asked the bailiff if I had time to run down and get them -- would've taken a couple, three minutes -- and she said no, the judge wanted to get started.  And he did, a minute later.  If I had a sentencing in the Justice Center at 11, I would've brought a couple magazines.

And the pay...  State appointments pay me $50 to $60 an hour, and a first degree felony is capped at $1,500.  Last year, just before the caps were raised (from $1,000), I spent eleven days in two rape trials and got $2,000 for my efforts.  But the cap on Fed cases is around $9,000, and they pay $126 an hour.  Most of the Federal defendants are housed in a correctional facility in Youngstown, about a 90 minute drive each way.  You'd be surprised how very few people are willing to pay me $126 an hour to drive my car.

So I was a little taken aback when I got into a conversation a while back with another lawyer, and found he'd been kicked off the CJA list because he wouldn't allow his clients to give information -- make proffers -- to the Feds.

*   *   *   *   *

Got a killer brief due tomorrow, so no post.  See you on Monday.

Continue reading "The perils of snitching" »

What's Up in the 8th

You'd think that with fifteen criminal decisions from the 8th District last week, we'd find something major, some new twist in the law, some interesting analysis, or, at minimum, something for me to bitch about.  (Or -- and here's a fascinating idea -- a case where the defendant actually wins.  Nah... lost my head there.)  Alas, it's not to be; after tossing out the opinions on consecutive sentencing or the pro se "motions to vacate a void sentence" (and whoever is handing those out in the prisons please stop) and some others, we're left with three decisions of any consequence, and that only because they teach us something we might not have known.  This will be on the test.

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

Case Update

The destruction of civilization as we know it proceeds apace:  five people were taken out of the Supreme Court chamber during oral argument last Wednesday after shouting slogans about the Court's decisions on campaign finance.  As Elmer Fudd would say if he'd been in Apocalypse Now, "the howwow... the howwow..."

Two days earlier, the Court heard argument in Brumfield v. Cain, a death penalty case.  Various psychological reports indicate that Brumfield has an IQ of as low as 54, which would exempt him from execution under the Court's Atkins decision in 2002.  Alas, Brumfield was tried back in 1985, long before Atkins, and the mitigation hearing back then wasn't focused on Brumfield's mental disability.  In fact, there are about twenty volumes of the state's record, and the justices didn't appear to be overly keen on wading through all that, as opposed to making sweeping statements of law.  The Court granted cert on the question of whether a state has a constitutional duty to provide a separate hearing on the mental disability issue, or whether it can simply rely on the mitigation hearing.  Whether it decides to answer that question seems as much in the air as what the answer will be.

The Court doesn't have any oral arguments for two weeks, but returns to the death penalty question the week after that, in a case involving the use of the three-drug protocol for executions.  That's somewhat of an afterthought, though:  everybody's attention will be directed to the case the day before, Obergefell v. Hodges, on whether bans on gay marriage are unconstitutional.

There's not a criminal case for oral argument on the Ohio Supreme Court's calendar until May 20, so let's go take a look at the decisions in the courts of appeals...

Continue reading "Case Update" »


This is what I wrote about the Supreme Court's decision a year ago in Hinton v. Alabama.

There was one other SCOTUS decision that came beneath the radar, the per curiam opinion in Hinton v. AlabamaAs might be expected from a PC opinion - the case wasn't even argued -- there's no big question of law to be resolved here, but it's an interesting read nonetheless.  Hinton was on trial for capital murder, and one of the key issues was ballistics evidence:  according to the police, the bullets they recovered from the scene of the robbery/murders Hinton was charged with matched the gun found in a search of Hinton's house.  There was no other evidence linking Hinton to the crime.

Continue reading "Exoneration" »

Thursday Roundup

Spring is in the air, and so is death.  California and Ohio are dissimilar in so many ways -- climate comes to mind right now -- but they share one problem:  they're running out of space to keep people they intend to eventually kill.  As the LA Times reports, Governor Jerry Brown is looking for the legislature to appropriate an additional $3.2 million for 100 more prison cells for people on death row.

Here in Ohio, we're running into the same logjam:  since Dennis McGuire's botched execution two years ago, we haven't killed anyone, and now have twelve executions scheduled with another eight to be set.  Part of the problem is that the two-drug combination we used to create the horror show that McGuire's execution proved to be has been abandoned, and we're trying to find a new supply.  That search presumably will be helped along by the passage last year of a bill allowing us to sign secret contracts with "compounding pharmacies" which will create the death drugs, because the pharmaceutical companies won't sell them to us anymore.

Once that's done, Ohio can get back to reducing its inventory of condemned prisoners, something it's proved efficient at doing.  Only one state north of the Mason-Dixon line, Missouri, has executed more people than Ohio since capital punishment was reinstated in 1977, and in the last five years, the comparative tally is Ohio 20, California zip.  Makes you proud.

Continue reading "Thursday Roundup" »

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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