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

Alabama law allows judges to override a jury's recommendation of sentence in a death penalty case, and the state's judges have taken to that with relish, overturning jury sentences 111 times since capital punishment was reinstituted back in 1976. 

That might come to an end with the Supreme Court's decision last week in Hurst v. FloridaThe Florida statute makes the jury's vote on the death penalty an advisory recommendation, with the judge empowered to make the final decision.  By an 8-1 vote, the Court found the procedure violated its 2000 decision in Ring v. Arizona, which held that the aggravating factors making a defendant death-eligible have to be found by a jury.  That might not have much effect in Florida; no judge has overridden a jury's verdict so as to impose a death sentence since 1999.  It could have a much more dramatic effect in Alabama:  there, 91% of the time when there's an override, it's of a jury verdict imposing a life sentence.

Hurst isn't off the hook completely.  Alito dissented, arguing that the Florida procedure was permissible, and that in any event any error was harmless in light of the gruesome nature of the crime.  (Hurst held up a Popeye's restaurant before it opened, and stabbed the assistant manager more than sixty times.)  The Court remands the case back to the state courts for that determination, although how they'll come to a determination that any jury would nonetheless have voted to sentence Hurst to death is a mystery, since five of the twelve jurors voted for a life sentence.

Down in Columbus, a couple of disciplinary cases; from one, we learn that just because you practice before a federal agency doesn't mean that you're immune from Ohio's disciplinary system.  Besides the oral arguments in the two death penalty cases coming up next week, which I discussed last Monday, we've got to wait until the second week of February before we come to some criminal cases on the court's calendar.  We've got five of them then, including two from Cuyahoga County, so we'll see how that goes.  Other than that, the court is accepting public comment on various rules changes, none of any real consequence.  The court rejected the one rules change that would have been of significant consequence, and we'll talk about that tomorrow.

In the courts of appeals...             

Hamilton County Juvenile Court Judge Tracie Hunter's term in office has not been without controversy, to understate the case.  She didn't take her seat until 18 months after an election in which her opponent, John Williams, was originally declared the winner by 23 votes.  Hunter's sparring with the prosecutor's office and other staff officials culminated with her indictment on eight charges, the most serious of which were allegations that someone in her office had backdated journal entries to prevent the state from appealing them.  A jury convicted her of one count, having an unlawful interest in a contract, for actions she'd taken in connection with the job of her brother as a security guard in the juvenile detention center, but hung on the remaining counts.  Last week, the 1st District affirmed her conviction.  Her main issue had been prosecutorial misconduct, with her brief citing no fewer than 51 supposed instances of same.  The panel reviewed the transcript of the five-week trial - that must have been fun - and concluded that none of it prejudiced Hunter.  Hunter's trial on the remaining counts starts this week. 

Rickym (no, that's not a misspelling) Anderson claims that he's the victim of the Trial Tax:  the judge gave him nineteen years, while his co-defendant, Boyd, got only nine.  The 2d District rebuffs his claim, noting that the prosecution had agreed to a nine-year sentence for Boyd in return for his willingness to testify against Anderson:

In essence, Boyd was rewarded for pleading guilty and agreeing to testify against Anderson. It is permissible to reward a defendant by mitigating his sentence when he chooses to waive a constitutional right and cooperate with authorities.  Anderson, who stood on his rights and went to trial, received no such reward. Although the distinction may be subtle, this does not mean he was punished for exercising his constitutional rights.

Well, yes, but...  Boyd and Anderson were charged with two robberies, one in which the victim was shot by Boyd.  Anderson held the gun in the second offense, and threatened to shoot the victim.  I can understand withholding a "reward" from Anderson, but ten years seems a lot to withhold.  One more thing:  Anderson was 16 at the time he committed the crime.


Recent Entries

  • March 20, 2017
    Taking time off
    I'm taking the week off. Have a major brief due on Thursday, plus a trial in Federal court starting next Monday. Plus, I'm pretty sure that Obama wiretapped me, too, so I'm working on getting to the bottom of that....
  • March 17, 2017
    What's Up with the 8th?
    The 8th District cases come out every Thursday. By about ten o'clock in the morning, the court will have posted the "weekly decision list" on its web site. It will give a summary of the case, usually in a sentence...
  • March 14, 2017
    Rippo and Pena-Rodriguez
    SCOTUS issues decisions on judicial recusal and biased jurors
  • March 13, 2017
    Case Update
    A SCOTUS decision on career offenders, and appellate cases on what a judge can consider in sentencing, and untimely motions to suppress
  • March 9, 2017
    A switch in time
    The court reverses itself in Gonzalez
  • March 8, 2017
    What's Up in the 8th
    More sentencing stories, and the right way to handle an Anders brief
  • March 7, 2017
    Case Update
    Knock and announce and the Ohio Constitution, and Anders briefs.
  • March 6, 2017
    Never mind
    The Ohio Supreme Court reverses Gonzalez.
  • March 2, 2017
    Of bright lines and bookbags
    Oral argument in State v. Oles and State v. Polk
  • February 28, 2017
    What's Up in the 8th
    A good outcome in a search case, probably a good outcome (to be) in a drug case, and a very bad outcome in a child rape case