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 »


Case Update

This is the last place you'd look for stock tips, but here are two of them:  Geogroup (GEO) and Corecivic (CXW).  They're the two largest for-profit prison operators in the country.  They lost 35% and 25%, respectively, of their value last August when the Obama administration announced that it would end the use of private prisons.

That was one of the first orders rescinded by Jeff Sessions, the new attorney general in the Trump administration.  GEO has already hit a new high since then, and there's more gold in them thar hills:  last week Sessions struck again.  Sessions' predecessor, Eric Holder, had issued guidelines for Federal prosecutors designed to avoid harsh sentences for defendants charged with low-level drug offenses.  Sessions reversed that last Friday, instructing prosecutors to seek the strongest possible charges and sentences against defendants they prosecute.  Doubling down on the drug war certainly makes sense to those of us who remember how well it worked the last time.

Oh, wait...

America incarcerates more people than any other country in the world, and the cost of that, in both monetary and human terms, had finally brought together a bi-partisan Congressional coalition seeking prison reform.  Opposition by then-Senator Sessions helped kill it last year, but he wasn't alone; one of the opponents, Sen. Tom Cotton of Arkansas, even argued that America actually has an under-incarceration problem. 

I'm guessing we'll be taking care of that problem in short order.

Down in Columbus, the Ohio Supreme Court handed down its decision in State v. Polk.  The result surprised no one who had watched the oral argument, which I discussed here.  Polk, a high school student, had left his bookbag on a bus.  The school's "safety and security" officer had opened it and looked inside just enough to determine its ownership.  Remembering that he'd heard rumors that Polk was a gang member, the officer took the bag to the principal's office, where the two dumped the contents.  Bullets tumbled out, the principal called the police, and when Polk was located soon thereafter, the cops found a gun in the bag he was carrying.

Everybody acknowledged that the first and third searches were proper, so it all boiled down to the legitimacy of the second one.  Did I say second one?  Well, no; we learn that the perpetrators of the Columbine massacre had fashioned explosive devices called "cricket bombs," made of CO2 cartridges no larger than the bullets eventually found in Polk's bag.  Short version:  the purpose of the initial search was not only to determine the identity of the bag's owner, but to ensure that it didn't contain any dangerous objects, and that determination couldn't be done without emptying the contents of the bag.

What threw a lot of people off in their analysis of this case was that the motivation for the second search had been the rumors of Polk's gang membership, but it's important to remember that in 4th Amendment law, motivation doesn't matter:  it's the objective purpose of the search, rather than the subjective reasons for it, that are determinative.  According to the court, the officer had the right to search the bag to find out whether its contents posed a danger, and after Columbine, Sandy Hook, and other school massacres, you're not going to find many judges willing to say that the security officer should've halted his inquiry as soon as he determined Polk's identity.  In this case, you couldn't find one; the decision was unanimous.

In State v. Hand (discussed here), the Supreme Court declared unconstitutional the provision of RC 2901.08(A) which permitted the use of a prior juvenile adjudication to increase the penalty for a subsequent adult felony conviction.  In Hand, the defendant had been adjudicated as a delinquent for a prior second degree felony conviction, which made a subsequent first or second degree felony mandatory prison time.  The court said that was a no-no, since Hand hadn't had the opportunity for a jury trial on the juvenile case.

The defendant in State v. Smith tries to avail himself of Hand, arguing that the decision means his twenty-year consecutive sentence for aggravated robbery and aggravated burglary must go by the boards.  The 2d District isn't buying, and it's not hard to see why.  First, this is only the latest attempt by Smith to extricate himself from his surroundings; the opinion notes fourteen prior motions for new trial, or leave to file them, and two other pending appeals.  Your eventual chance of success with the courts decreases exponentially after each loss.  By the time those losses reach the middle teens, you're in win-the-lottery territory.

The second problem is that it's not clear from the opinion that Smith's situation was aggravated by his previous juvenile adjudications.  If there is more than that the priors required him to do mandatory time, the opinion doesn't say.

But the court's final argument, that Hand doesn't apply retroactively, is the focal point here.  There's a common belief that new constitutional rules apply retrospectively, but that's not true.  There are a very limited class of decisions that can be utilized on collateral review.  This isn't one of them.  The issue will undoubtedly wind up in the Supreme Court, but I'm not seeing a different result. 

Smith probably assuages some of the concerns that prosecutors have voiced about the implications of State v. Aalim (discussed here.)  That decision, announced in the last two weeks of December, struck down the mandatory bindover provision of juvenile law.  The State asked for reconsideration on January 3, and that's what the court is doing:  reconsidering.  It granted a stay of the decision in March. 

There's certainly the possibility Aalim might go the way of State v. Gonzalez (discussed here), which went down 4-3 for the defense in December and on reconsideration went 5-2 the other way.  Aalim was 4-3, too, and the same two justices who voted with the majority there have been replaced by two justices who voted with the majority in Gonzalez. 

In an attempt to win in 2017 what they lost the year before, the State is parading the horribles of the decision being applied retroactively, and the floodgates opened as juveniles who committed serious crimes come and were subject to mandatory bindovers come rushing out.  Blakely, Crawford, and Padilla all announced constitutional rules, but they were of no help to anyone who'd exhausted his direct appeals prior to those decisions.  


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