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

Sometimes, a case teaches a bunch of lessons, and sometimes, it teaches only one.  The latter is the case in State v. WittenbergWittenburg gets caught with four keys of marijuana and one of hashish.  He's charged with drug trafficking, with juvenile, schoolyard, and firearm specs.  His lawyer works miracles, and Wittenburg pleads to a single third degree felony, and walks out of the courtroom with a year's probation.

But sometimes, part of your job is telling the judge what to say.  There was a presumption of imprisonment for the offense, and that means the judge had to make a finding that there's a lesser risk of recidivism and that the crime wasn't as serious as those crimes usually are.  The judge said nothing about either, so back it comes.

I'm guessing that the outcome is the same, and that the judge will treat the opinion as do judges who get reversed for not making the necessary findings for consecutive sentences:  "Oh, this is what I have to say."

If State v. Vega teaches a lesson, it's that the Cleveland cops could use more drug-sniffing dogs.  An officer pulls Vega over, and notices a strong odor of raw marijuana.  The cops toss the car, and find a couple of sealed envelopes in the rear seat.  For reasons known only to them and their god, they decide to call in a drug dog. 

Thirty-eight minutes later, when they reach the grim realization that man's not-so-best friend isn't coming, they decide to open the envelopes anyway.  A "large amount of Sweet Stone Candy" tumbles out, and, as you might guess from the name, each piece contains a nice dose of THC. 

The trial court suppressed the evidence, and the court by a split vote affirms.  The majority concludes that the police knew the envelopes weren't emitting the marijuana odor, so there was no probable cause to search them.  The dissent makes a decent case that this is wrong, pointing to a US Supreme Court case that says if the police have probable cause to search a car, they can search any containers, even without probable cause as to that particular item.

I think the dissent has the better part of that argument, but I've got a different take.  If you're going to search the car, search the damned car.  The law is that the police can't detain a person beyond that necessary to resolve the situation with a ticket or whatever.  Vega had to stand on the roadway for 38 minutes, in full view of every passing car, surrounded by a bevy of cops, all of them waiting forlornly for The Dog Who Never Came.  That's too long.  At some point that became an illegal detention.

State v. Waters teaches a number of lessons.  We learn that early on, when the opinion announces there are 13 assignments of error from Waters' conviction of multiple counts of child rape, involving three of his step-daughters and two of their friends.  It's a smorgasbord:  computer searches, course of conduct in venue questions, improper joinder, ineffective assistance of counsel...

There's a concept of staleness in search and seizure law.  The fact that someone bought drugs from the defendant at his house eight months ago doesn't mean they're there now.  Waters tries to avail himself of this contention, noting that the affidavit for the search of his computer relies on claims that he had child pornography on them two years earlier.  But not all contraband is created equally.  You're not going to win a staleness claim when the items are guns or child porn.  Few people get rid of their guns, and nobody gets rid of child porn.

Severance of trials is a futile undertaking; I've seen one case of it pressed successfully.  Waters claims that the judge should have granted separate trials as to each alleged victim, and that having five separate victims parading before the jury made it more likely for them to believe he was guilty.

That's obviously true.  It's self-evident that a jury is more likely to find a defendant guilty if he's charged with five counts of child rape instead of one.  Nobody cares.  And you're never going to win this argument when the jury acquits you of several counts.  That shows they could pick through the evidence.

Everybody knows that venue is an element of every crime.  That's why at the end of a direct examination about a shooting that took place in Public Square in downtown Cleveland, the prosecutor will ask the witness the seemingly silly question, "And these events took place in Cuyahoga County"? 

That doesn't mean the incident has to have happened in Cuyahoga County for the court here to have venue.  There's a "course of conduct" exception:  if the crimes represent a course of conduct, venue can be had in any county where any of the crimes occurred.

What constitutes a course of conduct, can be debated in the abstract, but as a practical matter, you're not going to win the argument that molesting a child in Cuyahoga County, then moving to Boston and continuing to molest the child, isn't a course of conduct.

Perhaps the main lesson taught by Waters is that if you've taken videos and cellphone pictures of you having sex with your eight-year-old step-daughter, you're not going to win, period.


Recent Entries

  • January 17, 2018
    What's Up in the 8th
    When not to decide cases on allied offenses and pre-indictment delay
  • January 11, 2018
    Case Update
    Three new decisions from the Ohio Supreme Court
  • January 10, 2018
    To the barricades!
    Why I'm a threat to the Ohio state government
  • January 5, 2018
    Search and seizure in the digital age
    Do the cops need a warrant to get cell phone data?
  • January 3, 2018
    What's Up in the 8th
    We talk about me a lot, but there's some other stuff, too
  • January 2, 2018
    He's baaaack
    So I thought I'd start my first post in six weeks by explaining why it's my first post in six weeks. Ever run into somebody and ask the obligatory question, "How are you doing?" And they proceed to tell you...
  • November 15, 2017
    What's Up in the 8th
    Plea withdrawals (again), sexual predator hearings, and an appellate law question
  • November 7, 2017
    What's Up in the 8th
    Don't listen to prosecutors about the law, good new/bad news jokes on appeal, and the Byzantine course of a death penalty case
  • October 24, 2017
    What's Up in the 8th
    Trying to change the past
  • October 16, 2017
    En banc on sentencing
    The 8th District takes a look at what State v. Marcum means