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November 2016 Archives

What's Up in the 8th

For a while there, the 8th District had developed a record of tossing out aggravated murder convictions for insufficient evidence of prior calculation and design.  There were about six of them in a two-year span, sufficient to produce a level of controlled rage in the appellate division of the prosecutor's office; they appealed every one, each memo in support of jurisdiction enumerating the other cases as proof that the 8th had gone rogue.

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What's Up in the 8th

As if there's not enough to complicate my life - and, as you know by now, it's all about me - the 8th came down with two big decisions on no contest pleas, and they're both named State v. Williams.  And they came down with two decisions on reconsideration, so I had to go back and read the original decision to figure out what they changed.  And I had to Google "chitterlings" when reading one opinion.

Oh, well, enough whining.  (See previous post; notice a trend?)  Time to put on my big boy pants and get on with this.

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Days of Whine and Roses

A bunch of states legalized recreational marijuana use last week, and, as one commentator observed, it's probably a good thing, because a lot of people are going to need it after the election results.

I don't have much time for recreation of any sort.  The OACDL death penalty seminar is this week, and despite never having represented a defendant in a death penalty case, I'm making two -- count'em, two -- presentations.

One of them is on oral argument in the Supreme Court.  "We figured nobody has more experience with Supreme Court arguments than you do, Russ," said the person who recruited me for the topic.  True that, if he meant, "We figured nobody in your office has more experience with Supreme Court arguments than you do, Russ."  I had three this year.  I had one in the previous five years.

At any rate, I think I've put together a pretty good show, and I'm pretty sure my use of sock puppets to simulate an actual oral argument is sure to be a crowd-pleaser.

Then the next morning, I do my annual "case update," where I tell everybody about the HORRRible decisions that have come out in the past year, the only limitation placed on my recitation of them being that the presentation is only an hour and a half.

So I've got to finish up on that.  (I've got most of the case update done, but broke down in tears when I got to the

And then there's the brief I've got dye on the 28th in the 5th District, from a trial involving a transcript of 1,600 pages.  That's after just finishing a brief on a 1,400 page transcript, working on another one of 900 pages, and after I get those done, there's a brief in an aggravated murder case awaiting me, with a transcript of 1,700 pages.

Plus, the sun's in my eyes, and the other team isn't playing fair.

Which is a roundabout way of saying that I don't' have any posts for this week.  I'll have one for next week, as I make my preparations for Thanksgiving dinner, and then will resume my normal schedule the following week. 

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Deterrence theory and prosecutorial misconduct

I got into an argument with several lawyers - well, more of a discussion, because as you all know, we lawyers don't get into arguments - about a post I did a couple weeks back.  It was about an oral argument in the 9th Circuit, where a prosecutor who argued the case got raked over the coals because the prosecutor who tried the case lied during the trial.  My friends were unimpressed.  Big deal, so the prosecutor had to spend 15 minutes being uncomfortable.  That's going to change anything?

Yes it would, I insisted.  It's like the 4th Amendment's deterrence theory:  cops know that the evidence they seize will get thrown out if it's the result of an illegal search, so they don't make illegal searches.

Okay, bad example.  Like I said, it's a theory.

And I figured that this would work the same way.  If malfeasance, in the form of misconduct, were made public, prosecutors' offices would penalize those miscreants.

Like I said.  It's a theory. 

Carmen Marino and Eddie Walsh go a long way toward disproving it.

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What's Up in the 8th

If you want to plumb the depths of the absurdity of Ohio's sentencing law, look no further than the 8th District's decision last week in State v. Vinson

Vinson was 18 years old, but the ferocity of his criminal activities belied his tender years.  During a twelve-day period in 2014, he and a codefendant conducted a home invasion, robbed a cell phone store, robbed two food marts in a single day (stomping on the head of one of the customers), shot a man five times, necessitating the victim having one of his eyeballs surgically removed, and robbed a convenience store.

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What's Up in the 8th

A few years back, in Lafler v. Cooper, the US Supreme Court decided that a lawyer had rendered ineffective assistance by advising his client to proceed to trial in an attempted murder case.  The lawyer's advice was predicated on his belief that the defendant couldn't be convicted because all of his bullets hit the victim below the waist.  Unfortunately, the "but Your Honor, I only shot him in the ass!" defense found no support in the case law, and the court found prejudice from the fact that instead of doing the six years offered in the plea, the defendant was sentenced to eighteen.

In State v. Wright, the defendant flips that:  his lawyer, he claims, was ineffective for not "persisting" that Wright go to trial.  Wright was charged with numerous counts of raping his girlfriend, and pled to one count of sexual battery.  As is often the case in date-rape situations, there might be some semblance of a defense, but if there is, it's certainly not sufficient to find ineffective assistance for declining a plea offer.

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