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August 2016 Archives

New laws on gun crimes

I'd mentioned a while back that the county prosecutor's office here had adopted a position that they wouldn't plea bargain on any gun crimes:  no dismissing firearm specs, no reducing weapons offenses.

If they stick to that, figure Ohio's going to have to build some prisons after September 14, courtesy of SB 97.

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What's Up in the 8th

Ever have a domestic violence case where the complainant didn't show up at trial.  "You mean, this week?"  Of course you have.  The judge will grant the State one continuance, but if the complainant doesn't show up the second time, the judge will dismiss it, and tell the State that if it finds the woman and she's willing to testify, the State can always refile.

That's probably not going to happen anymore, at least in this county.

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

Case Update - State v. Hand

Your client is charged with aggravated robbery with a gun.  The minimum sentence is six years - three for the gun and three for the crime - but the judge indicates he'll consider judicial release, which means that your guy could be out in three years and six months.  No, he won't, says the prosecutor:  it's mandatory time on a first or second degree felony if you've got a prior first or second degree felony, and your client does.   No, he doesn't, you say, because you looked over the LEADS sheet and made sure he didn't have any priors.  But it wasn't a felony conviction, the prosecutor says:  the reason you didn't find it is because it was a juvenile adjudication, and under RC 2901.08(A), that counts the same as an adult conviction.

Not after that the Supreme Court's decision last week in State v. Hand.

Continue reading "Case Update - State v. Hand" »

Taking time off

I've got some heavy stuff to do this week, SCOTUS is in recess, and the Ohio Supreme Court didn't come down with anything recently.  The 8th District did hand down some interesting stuff, but like I said, I've got some heavy stuff to do this week, so I'll take care of that later.  See you on Monday.

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A lawyer

Eighty percent of criminal defendants are indigent, and wind up being represented by either public defenders or appointed counsel.  The other twenty percent of criminal defendants pay for their attorneys.  As one observer astutely noted, "The man who said money can't buy happiness never sat in a courtroom."

Glib, but is it true?  Yes, it's not uncommon for lawyers in the first two groups to be told by their respective clients, "I want a real lawyer," and attorneys who don't take assignments often look down on those who do, and view public defenders with equal skepticism.  But do private attorneys get better results than their counterparts?

Yes.  Maybe.  It depends.

Continue reading "A lawyer" »

Punches and peremptories

Eugene Warner's family probably has a pretty good medical malpractice case against an urgent care facility.  Warner went there the night of January 2, 2014, complaining of headaches and vomiting.  They examined him, gave him two shots, and sent him home.  The next day, Warner became unresponsive, and was taken to the hospital.  They performed emergency surgery, to no avail; he died from a subdural hematoma, or, in layman's terms, bleeding in the brain.

The hematoma was caused by a single punch thrown by Carl Hampton in a bar fight a couple days before.  That resulted in Warner's conviction of felony murder.  In State v. Hampton, the 8th District engages in spirited discussion of the "one-punch" cases, and ultimately finds the evidence sufficient to convict.

That's the bad news for Hampton.  The good news is that the whole case gets reversed on a Batson challenge.

Continue reading "Punches and peremptories" »

What's Up in the 8th

There's a good discussion to be had about what constitutes "substantially impaired" for purposes of the rape and sexual battery statutes.  The only Supreme Court decision on the subject is State v. Zeh, which was decided back in 1987, and that dealt with mental retardation.  The much more common situation deals with intoxication.  And that's the discussion the 8th District had last week in State v. Springs.

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Let's Make a Deal

Hollywood loves to resurrect old franchises - next year we will be treated to Fast & Furious 8, causing some of us to wonder if there is indeed a loving God - but if they brought back Perry Mason, it's unlikely that there'd be many court scenes.  Weekly episodes would instead feature him hammering out a plea bargain with the prosecutor.  

Continue reading "Let's Make a Deal" »

Case Update

Can you claim ineffective assistance of counsel when you're not entitled to one?  The 5th District addresses that weird question in State v. Dunlap.  Dunlap filed a motion in 2014 to vacate his 2012 plea to domestic violence.  When that got denied, he appealed, one of his arguments being that the lawyer who handled the motion to vacate rendered ineffective assistance by failing to call his trial counsel as a witness during the hearing on the motion to vacate.  But while a defendant is entitled to appointed counsel for a pre-sentence motion to vacate a plea, the courts have held that a defendant isn't entitled to appointed counsel for a post-sentence motion. 

From this, the Dunlap court decides that a post-sentence motion isn't a "critical stage" of the proceedings, because relief is "allowable only in extraordinary cases."  Since it's not a critical stage, counsel isn't required, and "we therefore will not recognize a claimed error based on ineffective assistance regarding counsel's performance in presenting said motion to the trial court."

That doesn't sound right, but in fact there are a number of cases holding that you don't have the right to the effective assistance of counsel where you don't have a right to appointed counsel.  That usually arises in cases involving discretionary appeals.  It's applicability in Ohio is questionable, since counsel is always assigned to a discretionary appeal in the Supreme Court if the defendant's indigent.  And note that the Dunlap opinion doesn't indicate whether counsel was retained or appointed, and whether that should matter.  

Continue reading "Case Update" »

What's Up in the 8th

Either judges up here are getting tougher, criminals are getting worse, or some combination thereof:  229 years of sentences were meted out.  And that was in just two cases.

The defendant in State v. Daniel was the recipient of the 144-to-life sentence for his conviction of multiple counts of rape, aggravated robbery, and kidnapping.  Daniel's first claim is that the judge should have found him incompetent to stand trial, and Daniel certainly went the extra mile in trying to demonstrate that he was truly unhinged:  he feigned suicide after the first day of trial, and on the second "spread feces on himself and his holding cell." 

His claim was undercut by jail calls in which he asked his girlfriend to look up symptoms of schizophrenia.  If this were all, one might argue he was simply attempting to gather evidence for a self-diagnosis.  Alas, the calls included discussions of jury selection, the evidence, potential witnesses, an alibi, and circumstantial evidence, subjects not normally addressed by people who need a time-out at the Rubber Ramada.

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

Grand jury reform

It's reform time again for the criminal justice system.  Up here in Cuyahoga County, we've been looking into bail reform, and just the other day the court announced that the steering committee which had been formed several months ago to look into the matter had appointed the heads of the four committees who'd be looking into the matter, and the steering committee announced that the committees would begin looking into the matter in earnest in a month or so. 

But we won't have to wait any longer for a report on grand jury reform.  That report was released last month.  Ten is always a good number for these kinds of things - it worked for Moses and for the Founders - so the report contains ten recommendations on how to fix what's wrong with the Ohio grand jury system.  Let's see what they came up with.

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What does Mole mean?

So it's Friday, and I finally got around to writing what I promised to do for Tuesday:  an analysis of why you need to pay attention to the Supreme Court's decision last week in State v. Mole.  Not, not the part about why there's no rational basis for criminalizing consensual sex between a police officer and a minor where the minor isn't even aware that the guy is a police officer; that determination garnered the support of only three justices.  I'm talking about the court basing the decision on the Ohio Constitution, instead of its Federal counterpart.  Justice Lanzinger, who concurred only in judgment, did sign off on that, which makes it a majority decision.

Here's why that's significant.

Continue reading "What does Mole mean?" »

I lied

Yeah, I know.  On Monday, I reviewed the Supreme Court's decision in State v. Mole, and concluded the post by promising you that the next day I would explain why the case is one of the formative events of your life.  Then the next day came, and you find a post on the latest batch of 8th District decisions on -- gag -- sentencing.  And then the next day came and went, with nary a word from me.

Well, that's because on Wednesday morning I came in to work at an ungodly early hour, booted up my computer, saw the message "starting up Windows" flicker across my screen, only to learn that it was a lie.  As they used to say on Second City, "it blowed up real good."  It's on at some diagnostic shop even as we speak, probably on some kind of ventilator in the hopes of keeping it alive.

"But Russ, certainly you have a computer at home," you say, as I once again engage in the literary conceit of pretending we're actually having a conversation.  True that, and if the dog hadn't eaten my homework, I probably would've been able to get it done there.

I'll have the post tomorrow.  Honest.  You can trust me.  I was going to say, "so sue me," but then I realized my audience was particularly well-suited to do so.

See you tomorrow.  Really.  No, really.

Oh, by the way, one little tidbit about Mole.  I said the court took a year after oral argument to issue the decision.  Actually, oral argument was in July of 2014.  

Continue reading "I lied" »

What's Up in the 8th

The 8th District is on pace to handle about 950 cases this year.  A large number of them will deal with sentencing issues; of the seven decisions in criminal cases last week, three were on that subject.  One way of reducing that number is to hold that some sentencing decisions can't be appealed at all, and the court disposed of two of the sentencing cases last week in just that manner.

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

A new look at the Ohio Constitution

If you've got a case in the Ohio Supreme Court, and your client asks you after oral argument how long it will be before the court will make a decision, you can point to last week's pair of decisions and tell him, "I have no idea."  State v. Jones was argued on April 20th; State v. Mole was argued way back in July of last year.  Basically, oral argument will be held about six months after the court accepts the appeal; after that, it's anybody's guess.  At least the parties in those two cases didn't suffer the fate of the parties in State v. Shabazz:  nine months after holding oral argument, the court dismissed the case, deciding that it shouldn't have taken it in the first place.

Jones we talked about last weekMole we didn't.  Mole used a dating application on his mobile phone.  One day, he got a hit from J.S., who professed to be 18 and a high school senior.  She invited him over to her house on December 19, 2011, and led him into an unlit room in the back of the house, where the two performed oral sex on each other.

That's when J.S.'s mother walked in.

That's also when Mole found out that J.S. was actually 14.

Continue reading "A new look at the Ohio Constitution" »

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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