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December 2016 Archives

Holiday Rush

Well, I should have seen that coming.

The Supreme Court has two new justices joining the bench in January, replacing Lanzinger and Pfeifer, who were aged out. That means all the cases that the court had yet to rule upon had to be decided by the end of this year, or oral argument would have to be re-held.

That wasn't going to happen, so last week the court handed down a half-dozen decisions in criminal cases, all wins for the defendants.  Lest you think that this heralds the transformation of the Ohio Supreme Court into the second coming of the Warren Court, put away the party hats:  four of them were four to three decisions, with Lanzinger and Pfeifer in the majority.

And, of course, the 8th District, my home base, has gone into warp mode, issuing almost three dozen decisions, just in criminal cases, in the past two weeks.

On the plus side, my work load has receded to non-Herculean proportions (cleaning out the Aegean stables would have been an apt metaphor), so I'll have time to get back to the four-day-a-week posting schedule, which has been honored mainly in the breach these past few months.

In fact, despite the holiday, next week we'll do five posts.  (I can only imagine your boundless excitement at the prospect of nursing your New Year's Eve hangover as you revel in my keen wit and incisive prose.)  On Monday, we'll do a Case Update, dealing with three of the less consequential Supreme Court decisions, while also checking out if anything's happened down in DC (a good bet) and in the courts of appeals (ditto).  On Tuesday, we'll catch up with the 8th.  

Wednesday we'll discuss State v. Walker, the court's decision on what the State needs to prove to establish prior calculation and design in an aggravated murder case.  We'll take a look at the two decisions on juveniles, State v. Aalim and State v. Moore, and discuss whether they, and State v. Thomas, a decision this past summer, can be applied retroactively.  Friday we'll do a roundup of events from the World of Law.

The following week, I'll key you in on a sure-fire method of winning drug cases, and announce a cure for psoriasis.

Party on.

Continue reading "Holiday Rush" »

Talkin' about money

piggie.jpgThe defendant's son came in to see me.  His father had been convicted of a third degree felony, and sentenced to three years in prison, and they needed an appellate lawyer.  They were going to hire the attorney who tried the case, and in fact they'd paid him for it already, but decided they wanted a fresh set of eyes on the case.  I agreed, charged them a mid-four figure fee, and said I'd take the case over.  The transcript was due in about a week.

"Can we get our money back from the other lawyer?" the son asked me.

"Well, he did file the notice of appeal, and might have done some other stuff.  How much he charge you?"


When I finished coughing, I said, "Yeah, you should be able to get that back."

A week later he called me.  The lawyer said he understood, and was willing to give some of the money back.  Five thousand dollars, to be exact.

I told him to file a complaint with Disciplinary Counsel.  Their office called me about the case a few months later, just to ask some questions.  I had one of my own:  "They getting their money back?"

"Oh, yeah," the guy laughed.  "Believe it."

Continue reading "Talkin' about money" »

My bogus journey to Cincinnati

Here's an appellate lawyer's worst fear about oral argument.  You're standing there at the podium when one of the judges leans over the bench and asks, "Mr. Bensing, how does our decision in Michigan v. Gardner affect your case?"

oral argument cincinnati.jpgAnd you have no idea in the world what he's talking about.  You've never heard of the case, let alone read it, you don't even know enough about it to fake it.  You stand there like an idiot, unable to utter a word, until finally the judges look at each other, shake their heads, and walk off the bench.  Your opponent tries unsuccessfully to suppress a smirk as she gathers up her papers.  The other people in the courtroom look away, as if to avert their gaze from someone with a wretched facial disfigurement.

Continue reading "My bogus journey to Cincinnati" »

What's Up in the 8th

Cases on pre-indictment delay are still popping up with some regularity.  Which reminds me, there's still nothing going on with State v. Jones.  You'll remember that was the en banc decision on pre-indictment delay last year.  It got reversed by the Supreme Court in July because it applied the wrong test, but the 8th was instructed to apply the right test on reconsideration.  I was the lawyer on the case, and I immediately filed a motion for supplemental briefing, certain that the court would be entranced with my arguments on the subject.

Since then, nothing.  There's a very slim possibility that any 8th District judges are reading this, and it's certainly not intended as a hint or anything.  If perhaps a solitary judge has stumbled across this blog, I should mention that I have absolutely nothing else to do except sit around waiting for the green light to write my opus on Jones.  Think of it as relieving me from the tedium of my existence.

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

Case Update

The State of Alabama may have tortured Ronald Smith to death on Thursday night.  He was executed for the killing of a convenience store clerk in 1994.  The news reports indicate that the execution lasted 34 minutes, and during 13 minutes of that time, "Smith appeared to be struggling for breath and heaved and coughed and clenched his left fist after apparently being administered the first drug in the three-drug combination. At times his left eye also appeared to be slightly open."

Alabama is one of two states in the Union that allows a judge to override a jury's recommendation of a life sentence.  That's what happened in Smith's case.  In fact, it's happened 111 times since Alabama reinstated capital punishment in 1976.

Florida is the other.  Earlier this year, in Hurst v. Florida, the Supreme Court held that Florida's procedure is unconstitutional, because it allows the death sentence to be imposed upon findings made by a judge, not a jury, in violation of the Court's Ring/Apprendi/Blakely trilogy.  Seems that would have provided Smith with a pretty good argument, and indeed there were four justices willing to grant certiorari, and that's all it takes.

But it takes five justices to grant a stay of execution, and Smith didn't have that fifth vote.  Smith was executed moments after the Court denied, by a split vote, his final motion to stay.

By the way, last Thursday was the 225th anniversary of the ratification of the Bill of Rights.

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Strategic choices

You can't always tell from oral argument, but here's when you can:  you're the respondent in a disciplinary matter, and you're arguing in the Supreme Court, and you hear the chief justice tell disciplinary counsel how this is the worst form of the offense, and question him about why he recommended only a stayed suspension.

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Case Update

No need to worry about the politico-legal conflagration that awaits when Congress opens its confirmation hearings on whomever President/Twitterer-in-Chief Trump sends up to them in January to fill Scalia's seat, which has been vacant since sometime right after the Cuban Missile Crisis, I think.  The partisan deadlock which seems to have engulfed the Court since Scalia's passing has apparently evaporated, producing the first opinion of the term, a unanimous one in Bravo-Fernandez v. US, on the Double Jeopardy Clause.  As with many Supreme Court decisions, this doesn't lend itself to easy summation.  Since there wasn't much from the 8th District last week, we'll talk about Bravo-Fernandez tomorrow.

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Friday ruminations

All about me.  Ever have one of those months where you sit there on the first, look at all you've got to do, and say, "Well, if I can just get through this month, things should ease up a bit."  I'm been having one of those months since July.  Not really complaining; business is good.  Unfortunately, I've noticed that the correlation between how hard you work and how much money you make often tends to be an inverse one.

Got another tough one coming up, but I'm going to try to spend a little more time here.  I've been writing a lot of briefs (about 90 pages of them this month), and I like doing that, but I like writing here more.  Less formulaic.  Besides, I can't post links to pictures of nekkid wimmen in my briefs.

Oh, jeez, that didn't come out right, did it?

Continue reading "Friday ruminations" »

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