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 »


What's Up in the 8th

It wasn't the best of times for the 8th District, nor was it the worst of times.  Oops, sorry, I thought I was writing a speech for Melania Trump.  The judges of the 8th apparently decided to follow my lead and head to the hills in an attempt avoid being near that many Republicans, and issued no decisions last week, so we'll take a look at one they issued the week before.  And, as is often the case here, it's All About Me.

I've filed about a half dozen Anders briefs in my career, but the one in State v. Hall was the first time I'd filed one in case that went to trial.  (Well, here I am in the second paragraph of my post, and I've already lied to you:  the very first one I filed was from a trial.  The defendant, an employee at Sears, had been stealing stuff there, and the security guards had followed her to her car after the last incident.  She tossed the stolen goods in her car, jumped in, and sideswiped one of the guards in the process of fleeing, her flight interrupted when she crashed into another car in the parking lot.  She'd been charged with aggravated robbery, felonious assault, and aggravated vehicular assault, and was convicted of misdemeanor theft.  What was I going to argue, ineffective assistance of counsel?)

Back to Hall.  His ex-girlfriend Maria had woken up one morning to find him standing in the doorway of her bedroom, dressed in black; he'd apparently entered when Maria's mother had left the door unlocked while she was moving her car.  Hall handed Maria some flowers and told her that he loved her; Maria reminded him he wasn't supposed to be there -- he'd been told that numerous times -- so he left.  He was charged with menacing by stalking and burglary, both fourth degree felonies. 

Hall turned down a plea deal to the burglary and an assault charge, and instead tried the case to the bench.  The trial was brief -- the transcript clocked in at a meager 143 pages -- after which the judge acquitted him of the menacing charge, but convicted him of the burglary. 

Here's why I don't like doing Anders briefs:  it's the functional equivalent of the lawyer at trial getting up in opening statement and telling the jury, "Hey, I got nothing," and then walking out of the courtroom.  Here's why I especially don't like doing Anders briefs after trials:  because you can always argue something like insufficient evidence or manifest weight.  (There were no trial errors in Hall.)  Keep in mind that the standard for an Anders brief isn't whether your arguments are losers, it's whether they have any arguable merit.

The burglary charge Hall was convicted of requires proof only that Hall entered a permanent or temporary habitation where a person was or was likely to be present; unlike the other burglary offenses, there's no requirement of intent to commit any offense.  Credibility of witnesses isn't a factor to be considered on a sufficiency claim, so there went that.  Manifest weight is a little more forgiving; the court can consider credibility.  But as the word manifest indicates, a reversal on that basis is reserved for rare occasions.  In the ten years I've been doing this blog, I think I've seen three, and one didn't actually get reversed, because all three judges have to agree, and only two did in that case.

The problem, too, was that the only real disputed issue at Hall's trial was the menacing count.  Hall didn't testify.  Although his attorney got out the fact that he denied to the police that he'd entered the house when they arrived a few minutes later, claiming to have been in bed, that denial was undercut by the fact that he came to the door wearing the same black outfit Mariah had seen.

And so the court agreed with me that any claim of manifest weight was frivolous.  But on second thought, I'm not so sure I shouldn't have made that claim.  There was some cross-examination of the State's witnesses as to whether Hall entered Maria's home.  There's no way that would've won on a manifest weight claim, but it was at least an argument.

In fact, I probably wound up spending as much time explaining why there was no merit to the argument-- that's one of the things you have to do in an Anders brief-- as I would have just writing the damned brief and making the argument on manifest weight.  Serves me right.


Recent Entries

  • June 23, 2017
    Crime and the First Amendment
    Facebook and sex offenders, and encouraging someone to kill himself
  • June 20, 2017
    What's Up in the 8th
    I come a cropper, plus inventory searches and mandatory probation
  • June 19, 2017
    Case Update - SCOTUS
    What's coming up in the US Supreme Court in the next two weeks
  • June 12, 2017
    What's Up in the 8th
    After weeks in the desert, we come upon an oasis of defense wins
  • June 7, 2017
    A switch in time
    Why what the Supreme Court did in Aalim II and Gonzales II is a bad thing
  • June 6, 2017
    What's Up in the 8th
    A turnabout on prior calculation and design, and harmless error in all its manifestations
  • June 5, 2017
    Case Update
    A death penalty case, fourteen years after the crime, and we're just getting started. And two appellate decisions on search and seizure.
  • May 31, 2017
    What's Up in the 8th
    "What's a law enforcement accountability activist?" asked someone never, but the answer is here. Plus, cell phone experts, joinder, and the fading glory that was State v. Hand.
  • May 30, 2017
    Case Update
    One searches SCOTUSblog in vain for decisions which would be of interest to the uncounted hordes of this blog's regular readers; one of the Court's opinions last week deals with the Hague Service Convention's rules on international service by mail,...
  • May 25, 2017
    "Clarifying" post-release controls
    A look at the Supreme Court's decision in State v. Grimes