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

On Thursday, it'll be exactly nine years since I started this blog.  Please don't spend more than $50 on gifts for me.

Supreme Court law clerks could certainly pony up more; a few years back I read that the average clerk got hired at a salary of over $200,000 after they finished their stint, which was only slightly less than the justices they used to work for are paid.  But they play a big role at the Court, as a recent symposium on the role of the clerks reported.  The Court has "cert pool"; a single law clerk prepares a memo on certiorari petitions and shares it with the other chambers, and a review of 9,500 cases shows that the justices follow it 75% of the time.  Not sure of the significance of that, considering that less than 1% of petitions are granted.  You crunch the numbers.

In Renaissance Italy, artists had patrons; following the spate of Supreme Court decisions which released the floodgates of money in political campaigns, each presidential candidate seems to need one, or else suffer an early exit from the race.  SCOTUS backed off of that a bit last week in Williams-Yulee v. Florida Bar, upholding a Florida rule barring judicial candidates from personally asking for campaign donations.  The basis was allowing this would lead people to have less faith in the integrity of the judiciary.  How their faith would be reinforced by campaign committees doing the work is left unexplained in the decision.  Oh, and the rule does allow the judge to write thank-you notes for contributions, so there's that.

In addition to Bode and Castagnola, both of which I reviewed last week (here and here), the Ohio Supreme Court also handed down another case on Ohio's Corrupt Practices Act, State v. Willan.  We'll talk about that later this week.  Meanwhile, we've got about four weeks of appellate decisions to go through, so let's see which ones might pique our interest.

There are few things more disheartening in a pretrial than having the prosecutor hand you printouts from your client's Facebook page telling everyone how he popped a cap in Lamont's ass.  But authentication is another matter; anyone can set up a fake Facebook page.  In State v. Gibson, the 6th District tackles the evidentiary hurdles in admitting ESI (electronically stored information).  While some decisions haven't allowed admission unless the trial judge definitively determines the evidence is authentic, the 6th District adopts a lower standard:  the judge simply determines "whether there was sufficient evidence of authenticity for a reasonable jury to conclude that the evidence was authentic."  That's actually a correct reading of the rule:  as long as the proponent of the evidence makes a prima facie cause of authenticity, questions on that score go to the weight, not the admissibility. 

The introduction of a confidential informant's audiotaped transaction with the defendant, without the informant ever appearing as a witness at trial, would seem to be both a hearsay and Crawford violation, but the 2nd District finds neither in State v. Ali.  The informant's statements were not admitted for their truth, but to give a context to the defendant's statements.  And yes, Crawford, like the hearsay rule, doesn't apply to statements which are not admitted for their truth. 

Generally, if the police have the right to search a car, they have the right to search any closed containers found within the car.  But what if the search is based on the owner's consent, and the container -- a purse -- belongs to a passenger?  In State v. Chojnowski, the 9th District relies on a 2nd District case from two years ago to hold that the police cant' search the passenger's purse based on the owner's consent to a search the car.  To be stressed here, again, is that owner agreed to a search of the vehicle; the police acknowledged they had no probable cause for a search.  If they did, then they could've searched the purse, which was left on the front seat.

How far a court can go in imposing certain community control restrictions is the subject in the 12th District's decision in State v. Emery.  Emery was convicted of domestic violence striking her 17-year-old daughter in the face and threatening to kill her; the court didn't give her any jail time, but imposed as a condition of probation that she have no "uninvited contact" with her daughter.  Emery claims that's a violation of her constitutional rights as a parent, and it is, but that doesn't necessarily void it.  The restriction is subjected to the strict scrutiny test, but the court finds that "the state's interest in protecting the safety and welfare of children has long been recognized as a compelling governmental interest," and upholds the restriction.

We've heard a lot about police shootings recently, but the cops in State v. Winstead show remarkable restraint.  Winstead forcibly entered the side door of his neighbor's house, armed with a knife, and for reasons not particularly evident made slashing motions at the neighbor.  The neighbor cautioned Winstead when the police arrived, but only elicited the reply, "I don't give a fuck about no cops."  Winstead walked toward the door, announcing, "it's time to die, he's going to shoot me."  Winstead brandished the knife at the police officers as well, but the cops defused the situation by tasing him.  As he was carried off in the ambulance, Winstead called the officers "a bunch of pussies for not shooting him."  The reason for all this is hinted at in one passage from the opinion:  "During the standoff [with the police], appellant had one hand holding the butcher knife and the other holding a beer can, from which he continued to drink."


Recent Entries

  • April 26, 2017
    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