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August 2017 Archives

Constructive possession

You're sitting on the couch when the cops break in, and there's a couple hundred grams of coke lying on the coffee table.  That puts you in Major-Drug-Offender land, which is not a happy place.  But, you tell everybody, the coke really belonged to LeRoy, the guy sitting next to you, who everybody knows is a big-time dealer; he was just about to sell you a quarter ounce from his stash.

They tell you it doesn't matter:  you had "constructive" possession, that is, you were in a position to exercise "dominion and control" over the drugs on the coffee table.

You tell them LeRoy is very protective of his drugs.  If you had indeed attempted to exercise "dominion and control" over those drugs, LeRoy would have probably doubled the number of holes in your skull.

They tell you it doesn't matter.  And it doesn't. 

Or it does, depending upon which recent 8th District you want to rely on.  Let's take a look.

Continue reading "Constructive possession" »

What's Up in the 8th

A traffic stop found Samson Primm in possession of a few grams of marijuana, but he hires a lawyer and files a motion to suppress the stop.  On the day of trial, the City asks to dismiss the case.  Primm objects, and insists that he wants to go ahead with the motion to suppress.  The judge dismisses the case anyway, and Primm appeals. 

That's a lot to go through on a minor misdemeanor.  But there was more at stake than a little weed.

When they searched the car, the cops also found $100,000.  They took the money, and Primm wants it back.

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

Truth in plea bargaining

So I got a brochure last week from Judge Donnelly over at the Common Pleas court.  As you can see, it's a panel discussion on plea bargaining.  The judge asked me to get out the word, so I just sort of have.

Donnelly's become a strong advocate for "truth in plea bargaining," which basically requires a factual basis for a plea.  He was rebuffed last year in his effort to amend the rules to require that, but if you want your client to plead guilty to felonious assault instead of gross sexual imposition so he can avoid the sex registration requirements, don't expect to do it in Donnelly's room.

His outrage over this was only increased by a recent case he handled.  A guy we'll call Bill had been charged twenty years ago with a bunch of counts of child rape, kidnapping, and gross sexual imposition.  A couple of days into trial, the State agreed to let Bill plead to a single count of misdemeanor assault.

That's right.  Misdemeanor assault. 

Continue reading "Truth in plea bargaining" »

Summer Break

Got a bunch of stuff to do over the next couple weeks, and with the slowdown in the courts, it's a good time to take a break.  I'll be back here on August 28.  See you then.

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Friday Musings

The Drug War.  The US Sentencing Commission, like every other government agency, publishes comprehensive reports at the end of the year.  The USSC, in their effort to aid the reading public, also publishes a "Quick Facts" broadsheet about particular offenses.  Here's the one for drug trafficking, which tells us little that surprises.  Crack is no longer A Thing; only 8.1% of Federal cases involve that drug.  It's been greatly surpassed by meth, which comprises a third of all prosecutions.  Whites and blacks are charged with about the same frequency; the heavy lifting is done by Hispanics, who account for over 50% of drug trafficking prosecutions.  The Mexican connection to drugs is on vivid display, and not only by that; the top five districts for trafficking are in the southwest.

Next year's stats should be interesting.  Over sixty percent of drug traffickers received a below-guidelines sentence; much of that came at the request of the government (in other words, the defendant squealed on someone else), but in a quarter it came without that request.  New Attorney General Jeff Sessions had announced a harder DOJ position on drugs -- at least, he did before he became President Trump's punching bag -- so we'll see how that goes.

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Case Update

Less than two months until the Supreme Court launches its 2017 Term.  Mark your calendars.  The Court's already accepted over 30 cases for next year; the next big news on that front will come on September 25, when the Court has its "long conference" to look over the petitions that have accumulated during the summer and pick which ones are worthy of the Court's time. 

One of them might be Final Exit Network, Inc. v. Minnesota.  Final Exit Network and its primary publication, "Exit Guide," are not intended to aid movie-goers in finding their way out of a movie theater in the event of a fire or similar calamity; they exist to "provide information, education, and counseling to Network members who have decided to terminate irremediable suffering."  Doreen Dunn availed herself of these materials, and her self-induced demise resulted in Final Exit's prosecution under a Minnesota law which prohibits assisted suicide.  Final Exit did not commit any physical acts, so the case presents a free speech issue. 

The Court's been very First Amendment-friendly in recent years, and not-so-recent, for that matter:  it's struck down laws prohibiting marketing of violent video games to minors, falsely claiming that you got military medals, prohibiting videos of animal cruelty, and, just last term, allowing the patent office to reject offensive trademarks.  Given that, I don't see much hope for the Minnesota law, but it sure should draw some interesting amicus support on both sides.

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Two on allied offenses

In Cuyahoga County, the individual floor prosecutors don't have the authority to make a plea bargain.  They have to take it to a supervisor for a "mark" on what plea they're allowed to offer.

You can bet the supervisors are going to get a memo about the 8th District's decision in State v. Esper.

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Thursday Ruminations

Hey, it could happen.  We all have our sentencing stories.  The guy who turned down the plea, then got hammered when he lost at trial.  The case where we drew the toughest judge on the bench for child porn cases, and the client got double-digit time, where he would have drawn low single digits, or even probation, if he'd been assigned to another judge.

There was a provision in the 1996 Ohio sentencing reforms that made "consistency" one of the principles and purposes of sentencing.  For good reason.  The law must be fair, and must appear to be so.  Respect for the law is diminished when a defendant's sentence depends on the name of the judge he drew in the arraignment room, or when co-defendants' sentences may vary wildly based on whether one of them exercised their constitutional right to trial.

Well, here we are, two decades later, and we still have our sentencing stories.  Consistency doesn't mean uniformity, the courts have held, and we certainly buy that:  there's no valid reason why everybody convicted of aggravated robbery should receive the same sentence.  But consistency should mean that defendants with similar criminal histories and who committed crimes under similar factual circumstances should get similar sentences.  That doesn't happen.

But it could, argue the authors of this article (h/t to Sentencing Law & Policy), if sentencing was done by computer.

Continue reading "Thursday Ruminations" »

8th District Roundup

One thing that doing this blog has taught me is how much the law changes.  The US Supreme Court's decisions in Blakely v. Washington and Crawford v. Washington have dramatically altered the right to jury trial and confrontation, respectively.  The law on allied offenses has undergone three major changes in the past decade.  Sentencing law went through a major transformation with the reforms in 1996, another with the Ohio Supreme Court's 2006 decision in State v. Foster, and another with the sentencing reform package in 2011.

New trials for newly discovered evidence?  Not so much.  The lead case on that is State v. Petro, handed down the same year that The Harmonicrats "Peg O' My Heart" was edged out by Francis Craig's "Near You" on the Billboard 100 for 1947. 

Continue reading "8th District Roundup" »

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Recent Entries

  • October 16, 2017
    En banc on sentencing
    The 8th District takes a look at what State v. Marcum means
  • October 13, 2017
    Friday Roundup
    Musings about the death penalty and indigent defense
  • October 11, 2017
    Case Update
    SCOTUS starts its new term, and the Ohio Supreme Court hands down two decisions
  • October 10, 2017
    What's Up in the 8th
    Collaboration by inmates, fun in Juvenile Court, the limits of Creech, and more
  • October 5, 2017
    State v. Thomas
    The Ohio Supreme Court reverses a death penalty conviction
  • October 4, 2017
    Russ' Excellent Adventure
    A juror doesn't like me. Boo-hoo.
  • October 3, 2017
    What's Up in the 8th
    What not to argue on appeal, waiving counsel, the perils of being a juvenile, and expert witnesses
  • September 12, 2017
    What's Up in the 8th
    Prior consistent statements, whether State v. Hand is applied retroactively, and a big Coming Attraction
  • September 11, 2017
    Case Update
    Looking back at Melendez-Diaz, and the 8th goes 0 for 2 in the Supreme Court
  • September 8, 2017
    Friday Roundup
    Pro bono work, screwed-up appeals, and is Subway shorting their customers?