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The Briefcase 
Commentary and Analysis of Ohio Law
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Friday Roundup
Posted on November 20, 2009Guess he never watches CSI. While the discovery of eleven bodies, apparently raped and murdered, in Anthony Sowell’s house here in Cleveland has generated nationwide attention, local controversy brews over the failure of the police to follow up on an incident in December of 2008, when a woman flagged down officers and claimed that Sowell had beaten [...
Where the 4th Amendment goes to die
Posted on November 19, 2009Last week I gave a seminar on allied offenses, and the guy who spoke ahead of me — a law professor — did a talk on Crawford. Most of his presentation was devoted to a recap of recent Ohio cases on the subject, and he confessed that he found it difficult to understand some of those [...
Guns, guns, guns
Posted on November 18, 2009Last year in District of Columbia v. Heller, the Supreme Court declared that the 2nd Amendment provided for an individual, rather than collective, right to bear arms. That left open the question of whether the Amendment applied to the states, DC being Federal territory...
What’s up in the 8th
Posted on November 17, 2009A possible new starring vehicle for Damon Wayans, the court looks sympathetically, if naively, upon those faced with the prospect of re-entering society after a prison sentence, and the “one stab, one count” theory goes by the wayside. Marcus Carter was apparently a homeless person with attitude: when his soon-to-be victim refused his entreaties, Carter wound [...
Case Update
Posted on November 16, 2009Gee, thanks, guys. Back in August, I mentioned State v. Lupardus in a post about upcoming oral arguments before the Ohio Supreme Court. When that notable event took place less than a month ago, I devoted an entire post to it. So this past Thursday the court decides that it never should have taken the [...
A look at open discovery
Posted on November 13, 2009Yesterday I wrote that the Supreme Court’s considering a modification to the Criminal Rules which would permit “open discovery,” i.e., a full exchange of information between the parties in a criminal case, and briefly covered how those rules are changed...
New roolz
Posted on November 12, 2009Trying to think of ways to spend the upcoming weekend? You could rake those leaves and get the lawn in final shape for the upcoming winter, in which one gloomy day will follow another until by about mid-February you’re contemplating opening a vein just so you can see some color...
A uniquely American experience
Posted on November 11, 2009The course of true love, and Eighth Amendment jurisprudence, never runs smooth. I’m not sure about love, but after yesterday’s arguments before the US Supreme Court in Sullivan v. Florida and Graham v. Florida, 8th Amendment jurisprudence doesn’t look like it’s going to get any smoother...
What’s up in the 8th
Posted on November 10, 2009Last week the 8th handed down a paltry five decisions in criminal cases. This week, it’s a baker’s dozen, plus one. (Butcher’s dozen, maybe?) But, with a handful of exceptions, no love for defendants. One of the exceptions is Mahomoud Abouelhana, who pled guilty in 1995 to three counts of possession of criminal tools...
Case Update
Posted on November 09, 2009The wheels of justice can grind exceedingly slow. Or not. Back on February 18, the Ohio Supreme Court heard oral argument in Kiminski v. Metal Wire Products, involving the constitutionality of RC 2745.01, Ohio’s new employer intentional tort statute...
Friday Roundup
Posted on November 06, 2009It’s all about me. I ran into a number of people over at the Justice Center this week who asked, “How was Vegas?” My inevitable answer: “Well, I came back, didn’t I?” There are a lot of people who really like Las Vegas...
AWA and the Separation of Powers
Posted on November 05, 2009Back in 1999, Christian Bodyke pled out to a B & E and a count of sexual battery. He got six months on the former and two years on the latter, run concurrently. The court also determined that he was a “sexually oriented offender” — at that time the lowest level of classifcation — and [...
Just say no
Posted on November 04, 2009On the heels of the Obama administration’s announcement that it was no longer going to prosecute those in “strict compliance” with a state’s medical marijuana policy came news of this latest Gallup poll: California was the first state to legitimize medical use, with Proposition 215 in 1996; thirteen other states have followed, including next-door Michigan...
What’s up in the 8th
Posted on November 03, 2009I’ve often wondered if there’s a “law enforcement” chatroom on AOL, where everybody on it is actually a teen-age girl pretending to be an FBI agent. Two defendants in 8th District cases last week forgot the important lesson conveyed by the cartoon on the right, to their sorrow...
Case Update
Posted on November 02, 2009Down in DC, the eagerly-anticipated oral argument in Graham v. Florida and Sullivan v. Florida, the two juvenile life-without-parole cases, is still a week away. There are several notable arguments in the Ohio Supreme Court this week, too, but none more significant than State v...
Leaving (for) Las Vegas
Posted on October 23, 2009As I mentioned earlier, I’m off next week. Pulled all the money out of my SEPP and IRA’s, and am putting it on 27 Red. God, what a liar; I’m such a non-gambler that I had to Google “roulette table” to see whether the number 27 was red or black...
Let’s go to the video
Posted on October 22, 2009Ah, the marvels of technology. A police cruiser is fitted with a videocam, which faithfully records the officer’s interactions with the citizenry. You happen to be representing one of those citizens whose interaction involved being stopped after allegedly imbibing a bit too much...
Expungement
Posted on October 21, 2009We are an incarceration society; 1 out of every 100 American adults is in jail or prison. The vast majority of those people are going to get out of jail or prison some day, and it would seem that any intelligent penal theory would attempt to smooth their re-entry back into society, to do what was [...
What’s up in the 8th
Posted on October 20, 2009The court closes the book on a 2002 police shooting, and we get an inkling of why the unemployment rate is so high. Those are the highlights in a week where the only criminal case of significance involves expungement. Sixteen-year-old Ricardo Mason was killed in 2002 while riding in a stolen car...
Case Update
Posted on October 19, 2009It’s fairly well acknowledged that the war on drugs has done a serious number on the 4th Amendment, but one of the weapons in that war, forfeiture, has pretty much eviscerated the 5th Amendment’s prohibition on taking private property without due process...
Friday Roundup
Posted on October 16, 2009Willingham update. A couple months back, I mentioned the case of Cameron Todd Willingham, who was executed by Texas in 2004 for setting a fire in his house which killed his three children. Turns out that since then, nine of the top fire investigators in the country have examined the evidence and concluded that the fire [...
Defending the devil
Posted on October 15, 2009Everybody agreed that Frank Spisak was a despicable human being. After oral arguments the other day in Smith v. Spisak, the Supreme Court will have to determine whether his lawyer went too far in telling the jury in Spisak’s capital trial just how despicable Spisak was...
Show me the money
Posted on October 14, 2009A number of people have suggested ways in which I could make money off this blog. I may have stumbled across one, albeit inadvertently: pimping for the county prosecutor’s office. A couple weeks back, I highlighted two 8th District cases on search and seizure issues, one of which was State v...
What’s up in the 8th
Posted on October 13, 2009The State fares poorly in the more than two dozen decisions released by the 8th last week. Personal injury plaintiffs fare better. And if you’re a local judge and want to find out exactly how to get rid of those low-level drug cases that clog your dockets, keep reading...
Case Update
Posted on October 12, 2009The US Supreme Court’s term opened last week with oral argument in several high-profile cases; perhaps the biggest was US v. Stevens, which tests the constitutionality of a law passed by Congress to ban videos depicting the killing or serious abusing of live animals...
SCOTUS Update
Posted on October 07, 2009More guns? Less Apprendi? As I noted a couple weeks back in my preview of the upcoming US Supreme Court term, the preview wasn’t complete because the Court always adds cases to its docket during the term, and among the ten cert grants it issued last week were some that could result in major changes in [...
What’s up in the 8th
Posted on October 06, 2009While our stalwart governor has plundered educational and social programs in order to stave off a budgetary crisis, he’s managed to keep correctional spending at a level sufficient to permit us to send Eric Robinson to prison for three years for possessing nine baggies containing six grams of marijuana...
Case Update
Posted on October 05, 2009Abbreviated schedule here this week; I’ll have the Case Update today, the 8th District decisions tomorrow, and some stuff on the US Supreme Court’s new term, including the latest cert grants, on Wednesday. That’ll wrap it up for the week...
Friday Roundup
Posted on October 02, 2009I’ve got a couple of briefs due on Monday that have announced they’re not going to write themselves, but instead of taking the day off from here, I’m going to repost something I did back in January, entitled “Take me out to the ballgame...
Go Directly to Jail
Posted on September 30, 2009The only major opinion out of the Supreme Court last week was the unanimous reversal of the 8th District’s decision in State v. Cargile. Cargile had been arrested, and before taking him to jail, the officer asked if he had any contraband. He denied it, and during the booking process, well, what do you know: he [...
What’s up in the 8th
Posted on September 29, 2009One of the things you learn by doing criminal appeals is that people in prison have an awful lot of time on their hands, and often decide to spend it by writing copious letters to their attorneys explaining their views of the appropriate appellate strategy...
Case Update
Posted on September 28, 2009Okay, I lied again. I said on Friday we’d have an abbreviated week here, with posts just on Monday and Tuesday. Turns out that the only Ohio Supreme Court decision from last week, State v. Cargile, deserves some more extensive treatment than I’d give it here, and there are a couple of 4th Amendment decisions [...
SCOTUS Preview
Posted on September 24, 2009The “next” US Supreme Court term has already started; although the Court traditionally begins its term on the first Monday in October, this month had oral arguments in Citizens United v. Federal Elections Commission. So I figured it might be time to take a look at some of this issues the Court will be looking [...
Deja vu all over again
Posted on September 23, 2009That was reputedly Yogi Berra’s comment on seeing Roger Maris and Mickey Mantle hit back-to-back homers, and it fits the Ohio Supreme Court’s latest foray into allied offenses. The court took another shot at it again last week, and there’s serious concern we could be deja vu-ing our way all the way back to State v...
What’s up in the 8th
Posted on September 22, 2009To paraphrase the song title, it ain’t easy being a judge, but there are things which make it easier. The statutes exactly prescribe what a judge must tell a defendant who is not a US citizen before accepting a plea, and the Supreme Court has spelled out what a judge must tell a defendant about [...
Case Update
Posted on September 21, 2009The saga of State v. Crager comes to a conclusion. Sort of. For those late to the party, the Supreme Court held in Crager that testimony by a DNA analyst who wasn’t the one who actually performed the test didn’t violate the defendant’s confrontation rights, because scientific tests weren’t testimonial under Crawford v...
Friday Roundup
Posted on September 18, 2009Demon Weed Update. While arguments can be made that marijuana presents no more danger to the public weal than alcohol, and is far less harmful than legal substances like tobacco, there is no question that it ranks far below other drugs, like crack, cocaine, heroin, PCP, etc...
Still figuring out Crawford
Posted on September 17, 2009It’s been five years now since the US Supreme Court’s decision in Crawford v. Washington revolutionized the Confrontation Clause. A couple decisions from the appellate districts, and an oral argument in the Ohio Supreme Court, indicate that there’s still work to be done in sorting it all out...
Public records and post-conviction relief
Posted on September 16, 2009Romell Broom was supposed to get the needle yesterday (see story below) for kidnapping, raping, and killing a 14-year-old girl in 1984. His judicial oddyssey to avoid execution over the past 25 years provides an interesting study of the quirks of death penalty law, habeas corpus, and, of all things, Ohio’s public records statute, RC 149...
Romell Broom Update
Posted on September 16, 2009They tried to kill Romell Broom yesterday. Didn’t go so well, as this story from the AP relates: The team began working on Broom, in a holding cell 17 steps from the execution chamber, at about 2 p.m., four hours after his execution was originally scheduled...
What’s up in the 8th
Posted on September 15, 2009Some good search and seizure decisions, the State gets smacked down in a sentencing case, and best of all, no head-scratchers this week. I’m accustomed to seeing several sentencing decisions in the 8th’s weekly work, but this week features an anomaly: two appeals, but both by the State...
Case Update
Posted on September 14, 2009People complain about how long it takes to carry out a death sentence, but there are times when the system can move with alacrity. Romell Brownwas sentenced to death back in 1985 for the kidnapping and murder of 14-year-old Tryna Middleton. His quarter-century attempt to avoid execution seemed to pay off on July 30 of [...
Friday Roundup
Posted on September 11, 2009SORNA update. With the constitutionality of Ohio’s Adam Walsh Act to be decided by the Supreme Court early next year, the efficacy of sex offender registration laws took a recent hit with the revelation that Phillip Garrido managed to keep Jaycee Dugard, a child he’d kidnapped when she 11, hidden in his back yard for 18 years, [...
Rape Shield and Crawford
Posted on September 10, 2009The question was straightforward: “Do you think that Crawford renders the rape shield statute unconstitutional?” I hadn’t given it much thought, so I gave the first answer that came to mind: “No.” It would have been better if I’d given the second answer that came to mind...
What’s Up in the 8th
Posted on September 09, 2009With Labor Day approaching, the 8th’s judges have just enough time to toss a palrty nine decisions into the hopper before heading out of town. Good work all around, though, and of particular interest are some dissenting and concurring opinions...
Case Update
Posted on September 08, 2009In France, they close the country down in August so everybody can go on vacation. We may be heading toward that, at least around Labor Day; no decisions out of the Supreme Court this week, and a light load in the appellate districts. Of course, the Supreme Court wasn’t writing because it was listening: several [...
Case Update
Posted on September 06, 2009In France, they close the country down in August so everybody can go on vacation. We may be heading toward that, at least around Labor Day; no decisions out of the Supreme Court this week, and a light load in the appellate districts. Of course, the Supreme Court wasn’t writing because it was listening: several [...
Friday Roundup
Posted on September 04, 2009Kids have Fred Flintstone vitamin tablets and we have… As if the waning support for health care reform wasn’t enough of a problem, now President Barack Obama has to cope with the latest report from EcastasyData.org, which tells us that “the most notable new style of ecstasy tablet is the Obama head, which seems to be [...
Update on the Castle Doctrine
Posted on September 02, 2009I ran into Ed Vargas, a local Cleveland attorney, a couple weeks after he’d won a big case involving the castle doctrine. I’d talked about the doctrine here; basically, through an amendment to RC 2901.05(B), it creates a presumption that if you use deadly force inside your own home against an intruder, it’s self-defense...
Things I don’t understand
Posted on September 02, 2009Case 1. You know you’re in pretty good shape when, three days before trial, the prosecutor asks you if your client knows where the victim can be reached. “Alleged” victim, I should say, in every sense of the term. I was representing Bobby, who’d gone along with his Aunt Jane to get her stuff from the [...
What’s Up in the 8th
Posted on September 01, 2009This week’s “We Know What You Meant, But You Could Have Said It Better” Award goes to the trial judge in State v. Hawkins. Hawkins was facing life without parole for several aggravated murders, and in explaining why a plea deal might be beneficial, the judge told him, ”If you?re convicted of all these crimes, Mr...
Case Update – Supreme Court Edition
Posted on August 31, 2009Two weeks ago, I was whining about the lack of decisions from Columbus; now, I’m whining because there’s so many. Make up my mind, why don’t I. The big decision out of Columbus was State v. Hunter, which concerned the viability of the repeat violent offender specification after State v...
Friday Roundup
Posted on August 28, 2009Reach out and touch someone. I ran into one of my buddies in the prosecutor’s office the other day. He’d been the subject of a laudatory editorial in the Plain Dealer the other day. He was handling a rape case — a particularly nasty one; the victim was retarded – in which the defendant had [...
JLWOP
Posted on August 27, 2009One of the major goals of capital punishment opponents has been to offer penalty alternatives to death, one being life imprisonment without parole. As I mentioned three years ago, studies have shown that the availability of LWOP has had virtually no effect on the imposition of the death penalty...
Coming soon to a courtroom near you
Posted on August 26, 2009The Columbus Seven’s summer fiesta ends next week, with a full slate of oral arguments running well into October. Here’s a gander at the cases I’ll be writing about sometime in the near future: State v. Hunter (link is to appellate decision): Another foray into Crawford: question is whether child rape victim’s statement to social worker is [...
What’s up in the 8th
Posted on August 25, 2009If you wind up on trial for murder, it’s best if the prosecution is not able to introduce a picture from your MySpace page showing you holding a gun, next to the inscription, “Pow! One in the head, now you’re dead.” This was one of the lessons provided by the 8th District’s decision this past [...
Case Update
Posted on August 24, 2009The only real decision from Columbus this past week was one imposing an indefinite suspension upon a lawyer for, among other things, a child pornography conviction. According to the attorney’s doctor, the attorney suffered from paraphilia, defined as “a condition generated by the clash between individual sexual interest and social rules governing sexual behavior...
Friday Roundup
Posted on August 21, 2009Something for the Crager court to read. The other day I talked about the Ohio Supreme Court’s impending reconsideration of their decision in State v. Crager, in which they held a defendant’s confrontation rights weren’t violated by testimony about a DNA result by an analyst other than the one who’d actually performed the test...
The Machinery of Death
Posted on August 20, 2009In 1991, Troy Davis was convicted by a Georgia jury of killing a policeman two years earlier, and sentenced to death. No gun was found, no forensic evidence linked Davis to the shooting, and within a few years seven of the nine witnesses against him had recanted, claiming that they’d been coerced into making false [...
Taking a second look – en banc proceedings
Posted on August 19, 2009Back in April, I chastised the 8th District for its decision in State v. Norman. On further reflection, I should have kept my mouth shut. In Norman, the defendant had pled guilty to failure to comply, drug trafficking, and tampering with evidence. The law requires that any prison sentence for the former offense has to be [...
What’s Up in the 8th
Posted on August 18, 2009The constitutional ramifications of “hey little girl, want some candy?” are the centerpiece of this week’s work by the 8th District, as misdemeanor defendants fared very well, civil appellants did pretty good, but felony defendants… not so much...
Case Update
Posted on August 17, 2009Summertime… and the blogging is easy… Actually, no, because there’s not that much to write about. The only “decision” of consequence by the Ohio Supreme Court this past week was the dismissal of the appeal from the 8th District’s decision in State v...
Friday Roundup
Posted on August 14, 2009More on sex offenders. The constitutionality of Ohio’s Adam Walsh Act, the latest effort to impose ever more Draconian sanctions on sex offenders, is presently pending before the Supreme Court in State v. Bodyke. The odds for setting aside the law are grim, every appellate district in Ohio having rejected various constitutional challenges to it...
Do the right thing
Posted on August 13, 2009Nancy Smith and Joseph Allen were convicted of numerous child rape counts back in 1994, and essentially sentenced to life in prison. The Ohio Innocence Project had gotten involved in the cases, and planned on filing a motion for new trial. In June, Lorain County Common Pleas Judge James Burge stunned everyone by granting a judgment [...
Crager revisited
Posted on August 12, 2009Early last year, in State v. Crager (discussed here), the Ohio Supreme Court held that the testimony of laboratory analysts wasn’t subject to Crawford v. Washington: the defendant did not have a right to confront and cross-examine the person who actually performed the test...
What’s up in the 8th
Posted on August 11, 2009A couple of good criminal decisions, a couple questionable ones, and I’ll even talk about a civil case this week, as I wade through the two dozen or so decisions handed down by the 8th last week. Although not defined in the statutes, most defense lawyers understand the crime of “aggravated shoplifting:” someone will pilfer a [...
Case Update
Posted on August 10, 2009Only one decision from the Ohio Supreme Court this week. We all know that insurance doesn’t cover intentional torts. If you punch your neighbor in the mouth, your homeowner’s policy isn’t going to cover you. But what if your kid punches the neighbor — or, in this case, stabs her — and the neighbor sues [...
Friday Roundup
Posted on August 07, 2009Talk about environmental “impact.” If your first thought at looking at this picture of California’s Cold Spring Canyon Bridge was, “Boy, I’d sure like to jump off of that,” you’re not alone: at least 47 people have committed suicide by doing so since it was built in 1963...
Supreme Court Review – 4th Amendment update
Posted on August 06, 2009It’s unusual when the Supreme Court hands down three major 4th Amendment decisions in the same term. It’s more unusual when one suggests a major limitation on the exclusionary rule, while another is one of the most pro-defendant cases in recent memory...
Heller update
Posted on August 05, 2009You’ll remember that after the Supreme Court’s decision in District of Columbia v. Heller, affirming an individual 2nd Amendment right to bear arms, I made all sorts of predictions about how this was going to have a major impact on gun regulations...
Case Update – Court of Appeals Edition
Posted on August 04, 2009Here’s what was on tap in the appellate cases last week… Criminal. 2nd District says battered woman defense not available where defendant testified that husband never hit her and she wasn’t afraid for her safety, but that he was “controlling”… 1st District says that trial court, in resentencing due to improper imposition of post-release controls, erred [...
Case Update – Supreme Court Edition
Posted on August 03, 2009Slight change of schedule. The Columbus Seven came down with several notable opinions, so we’ll discuss those today. The 8th had a slow week, so instead of doing a post on those decisions tomorrow, we’ll combine them with a case update for all the appellate decisions from last week...
Buyer’s remorse
Posted on July 31, 2009“Well, we’re going to find out how many cases I can competently handle in one day,” I told Bill, the prosecutor. “How many you got?” he asked. “Six.” He nodded, then thought for a moment. “I’ll take the under...
A second look at Foster
Posted on July 30, 2009Since Oregon v. Ice came down in January, I’ve written numerous posts arguing that the US Supreme Court decision upholding Oregon’s law, which permitted judicial factfinding for imposition of consecutive sentences, implicity overruled State v...
Supreme Court Recap
Posted on July 29, 2009It’s that time of year again. Here’s my wrap-up of the just-concluded Supreme Court term, focusing on criminal cases and some others of note. They’re arranged alphabetically, and include links to the opinions, as well as to other posts I’ve written discussing them in more detail...
What’s up in the 8th
Posted on July 28, 2009Party-goers in Cleveland will be shocked — shocked – to learn that such events often degenerate into gunfights, at least according to the 8th District’s most recent spate of decisions. Rare reversals on evidence, one for insufficiency and the other for manifest weight, plus the lesson for judges that if you’re going to screw up [...
Case Update
Posted on July 27, 2009The US Supreme Court’s concluded its term, and I’ll have a recap of the significant decisions on Wednesday. Down in Columbus, big news for personal injury lawyers, and the doctors/chiropractors/clinics that treat their clients. It’s not unusual for a medical provider to have a patient sign a form assigning the provider rights to payment for the medical [...
8th District roundup
Posted on July 17, 2009I know, usually I do the 8th District stuff on Tuesdays. But I’m going on vacation for a week tomorrow, and there’s a ton of stuff I’ve got to do today. I do a weekly post for the listserves of the OACDL and the CCDLA on the 8th District criminal cases, so I’m just going to [...
Oregon v. Ice update
Posted on July 16, 2009I’ll be on vacation next week, and I’m going to put off doing a comprehensive review of the USSC cases until after I get back. One of the cases on that list is Oregon v. Ice, and I wanted to get a jump start on that, since that could have a big impact on Ohio sentencing law...
Let’s make a deal
Posted on July 15, 2009The guy on the elevator shook his head. “Got to get me a new lawyer,” he said to no one in particular. “All this one talks about is doin’ a plea.” I could relate. I’d worked out what I thought was a good deal in Harry’s machete case, but he wanted no part of it...
Allied and lesser offenses
Posted on July 14, 2009Last week, the Ohio Supreme Court took another look at the question of when offenses should be merged and when judges should charge on lesser included offenses, and actually clarified both. If you read that and felt that you’d been transported to a parallel universe in which Ohio law actually makes sense, well… The first case, State [...
Case Update
Posted on July 13, 2009Slight variation from the customary format. The USSC is closed for the summer, and while there were a couple of decisions from the Ohio Supreme Court on allied offenses, they merit a separate post. Plus, the 8th District didn’t hand down anything earthshaking last week...
Anders Briefs
Posted on July 10, 2009Imagine a defense lawyer getting up in opening statement at a trial and telling the jury: Ladies and gentlemen, after carefully reviewing all the evidence in this case, I’ve concluded that my client has no meritorious defenses. There are a couple of arguments I possibly could make, but they’d be frivolous...
A new look at child sex cases
Posted on July 09, 2009It used to be that there was nothing more difficult to defend than an allegation that the defendant had sexually abused a child. I don’t know whether that’s changing, but in the past two weeks a jury verdict, a trial court’s decision, and three appellate opinions have certainly bucked that trend...
Yes, Virginia…
Posted on July 08, 2009…there is a speedy trial statute, and like Christmas, a reversal for violation of it comes but once a year. Or so it seems. Well, last week was the time of the season up here by the lake. In State v. Byrd, the 8th District addressed a plethora of speedy trial issue, among them… The defendant’s [...
What’s up in the 8th
Posted on July 07, 2009The court decided to make trial judges’ jobs easier this week, telling them what they need to do in order to impose restitution, charge a jury on a lesser offense, or decide whether to accept a plea. Plus, a big reversal on speedy trial, which we’ll talk about tomorrow, and a reversal on a child sex case, which [...
Case Update
Posted on July 06, 2009The US Supreme Court finished off its term with the big affirmative action decision in Ricci v. Stefano. In addition to its legal impact, the decision could have political consequences as well: it overruled a 2nd District decision in which Supreme Court nominee Sonia Sotomayor had participated...
The viability of Melendez-Diaz
Posted on July 02, 2009Last week, I discussed the Supreme Court’s ruling in Melendez-Diaz v. Massachusetts, in which the Court held that reports of laboratory tests were “testimonial” under Crawford v. Washington, and could not be submitted at trial without the live testimony of the person who conducted the test...
Pushing the envelope
Posted on July 01, 2009So I’m at the market the other day, and I run into one of my buddies from the PD’s office. “What’s going on?” he asks. “Oh, I’m upset,” I pouted. “I was thinking of retiring from the practice of law to become a high school principal, but now the Supreme Court comes along and says I [...
What’s up in the 8th
Posted on June 30, 2009A few months back, I ran into one of the Cuyahoga County court of appeals judges, who told me that they’d almost cited my blog in one of their recent opinions; apparently, they’d sobered up just in time. It seems the liquor was flowing more frequently down at the old Lakeside Courthouse last week, because [...
Case Update
Posted on June 29, 2009The US Supreme Court will wrap up its term today, with three decisions still outstanding, the most significant of which is the New Haven firefighters affirmative action case. Last week’s big decisions were the application of Crawford to scientific reports, which I discussed on Friday, and the school strip search case...
A tale of two cases
Posted on June 26, 2009Almost two years ago, in State v. Crager (discussed here), the Ohio Supreme Court held that having a DNA analyst testify to tests that were actually performed by someone else didn’t violate the Confrontation Clause, as the US Supreme Court interpreted it in Crawford v...
Truth in advertising
Posted on June 25, 2009Andy Warhol once remarked that, in the future, everyone will be famous for 15 minutes. My own take is that in the future, everyone will have their own blog. Or at least every lawyer. When I started this blog over three years ago, there weren’t more than a few others in Ohio; now there are [...
The appearance of fairness
Posted on June 24, 2009Some judges allow jurors to ask witnesses questions at trial, a practice that was upheld by the Supreme Court in 2003 in State v. Fisher. A lot of lawyers don’t like it. It may have saved Tom Siller 30 years, as last week the 8th District, in State v...
What’s Up in the 8th
Posted on June 23, 2009Inventive police work, a new legal avenue for women seeking child support arrearages, a Byzantine PRC case, and how far a trial court has to go in explaning a defendant’s rights at a plea… All that and more from the 8th, despite a week which saw only 12 decisions, about half the normal output...
Case Update
Posted on June 22, 2009Forensic science marches to the fore this week. In DC, the Supreme Court decides 5-4 in District Attorney v. Osborne that there is no constitutional right to DNA testing after conviction; allowing such testing is up to the state legislatures. Down in Columbus, the Supreme Court accepts review of a notorious Akron murder case in which the [...
Friday Roundup
Posted on June 19, 2009Imitation is the sincerest form of flattery. Last year I did a post on judicial writing, leading it off with the opening quote from Chief Justice Roberts dissent from the denial of certioari: North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift...
Good judges
Posted on June 18, 2009My buddy Paul has a simple definition of a good judge: one who won’t “jam him up.” That’s an understandable concern. Paul and I are both solo practitioners, and that can be rough. If there’s something that needs to be done, we need to do it...
Another go-around on PRC
Posted on June 17, 2009A considerable portion of the Ohio Supreme Court’s time over the past few years has been devoted to cleaning up what happens when trial judge’s don’t properly impose post-release controls. The legislature got into the act, too, passing statutes which purported to remedy the problem...
What’s Up in the 8th
Posted on June 16, 2009The court takes a look at four search cases, including an attempt by an (ex-)judge to create a new cause of action. That, and the usual spate of cases involving screwed-up pleas or sentencings… Rule 11 specifies that a defendant has to be advised of certain constitutional rights at the time of his plea...
Case Update
Posted on June 15, 2009Other than the judicial campaign contribution case I discussed on Friday, the big news out of DC was something the Supreme Court didn’t do: it refused to hear the appeal from the Chrysler deal. The Court’s got two weeks left, although if you want to get a jump on the eventual analyses, you can take [...
Follow the Money
Posted on June 12, 2009I don’t know what grades Don Blankenship got in high school civics, but he sure understands the electoral process pretty well. After a West Virginia jury hit up his coal company with a $50 million verdict, he set his sights on the upcoming elections for the state’s supreme court, knowing that the case would wind [...
Too clever by half
Posted on June 11, 2009Some lawyers like to talk to jurors after a trial. I’m one of them; I figure there’s always something I can learn. Sometimes it’s not something I necessarily wanted to find out… A few years back, for example, I had a client charged with felony telephone harassment...
Taking out the murder weapon
Posted on June 10, 2009The State’s murder case against David Allen was iffy. His girlfriend was found shot dead in her apartment a couple of weeks after they’d had a fight, and she’d earlier confided in a friend that she was afraid of him. A witness claimed to have seen him run into an apartment building right after the victim [...
What’s Up in the 8th
Posted on June 09, 2009You might not be able to tell what’s coming, but you do know what you’ve left behind. And you should know what’s real and what’s not. Those, and other moral lessons, in a week in which a reversal for a Colon error provides the sole solace for criminal defendants… Well, that’s not quite accurate; in [...
Case Update
Posted on June 08, 2009Slight change in the Case Update this week. It seems that Lexis isn’t getting the cases as quickly as it used to, and there’s only about thirty decisions from the courts of appeals. I’ll cover them next week, and stick to Supreme Court stuff this week...
Friday Roundup
Posted on June 05, 2009Should Scott Roeder be waterboarded? A poster over on Balkinization poses some interesting questions, based on the premise — a correct one, I believe — that Scott Roeder’s killing this past week of abortion doctor George Tiller was an act of terrorism...
Empathetic judges and elected judges
Posted on June 04, 2009Just got done trying my case, to a new judge who’d just been elected this past November. I’ve known him casually for a long time, and he’s a good guy, but he’s a former prosecutor, so I wasn’t quite sure what to expect...
With a little help from my friends
Posted on June 03, 2009I’ve got a trial this week, so time is short. Fortunately, a couple of members of my vast legion of faithful readers have provided me with the fodder for a quick post on what’s necessary to get beyond a motion to dismiss for failure to state a claim, and what the State has to show [...
Prophylactics
Posted on June 02, 2009‘Tis the season for overruling decisions, apparently. Just a month ago Justice Scalia provided the fifth vote in Arizona v. Gant (discussed here), which essentially overruled the ”bright-line” rule established in Belton v. US as to when police could search a car incident to the arrest of an occupant...
Case Update
Posted on June 01, 2009The US Supreme Court is coming down with its end-of-term decisions; last week it issued three. In Abuelhawa v. US, the defendant had purchased a gram of cocaine on two occasions, a misdemeanor under Federal law, but had made six telephone calls to do arrange the purchases, and so was indicted and convicted of six felony counts [...
Friday Roundup
Posted on May 29, 2009All of DC is abuzz about President Obama’s nomination of Sonia Sotomayor as the next Supreme Court Justice. Right-wing groups inveighed about her use of the word “empathy” as a factor in judicial decision-making, the gun rights crowd as labeled her an “enemy of gun-owners” by virtue of a per curiam decision she participated in rejecting a post-Heller [...
Open discovery and no discovery
Posted on May 28, 2009Open discovery is coming sooner than we expected. And the 8th District upholds a judge who decides that discovery wasn’t forthcoming enough… I’ve written before about the ongoing battle for open discovery in criminal cases — having prosecutors give defense counsel full access to police reports and witness statements...
What’s Up in the 8th
Posted on May 27, 2009The latest trend in ineffective-assistance claims, why bother with supreme courts, traps for unwary defense attorneys, and our new (and perhaps one-time) feature — the Weekly “It Wouldn’t Be Harmless Error If…” Quiz. All that and more from the 8th this week...
Case Update
Posted on May 26, 2009Nothing out of Columbus, and the only point of legal interest out of Washington is this article, reporting a study which shows that the side which gets asked the most questions in a Supreme Court oral argument is most likely to lose. The other Court-related news is the scuttlebutt that President Obama will be announcing his [...
Friday Roundup
Posted on May 22, 2009Hobson’s choice. Cleveland Cargile was busted on a robbery charge back in 2007. Just before taking him into the jail, the cops told him that carrying drugs into the jail is a crime, and that if he had any on him he’d better ‘fess up now...
Conceding error
Posted on May 21, 2009One of the things our adversarial system of justice trains attorneys to do is practice a “no-quarter given, none-asked” form of litigation: a lawyer may refrain from making certain arguments because he believes that they aren’t credible, but rarely will he concede that the arguments he has made are wrong...
Trial strategy and IAC claims
Posted on May 20, 2009Trial lawyers in Cleveland are an incompetent lot. At least, that’s what you’d think from reading the arguments of appellate lawyers. Ineffective assistance of counsel claims figured prominently in a third of the criminal decisions out of the 8th District last week...
8th District Roundup
Posted on May 19, 2009If you’re looking for me to provide my weekly dose of criticism for the 8th’s decisions, look elsewhere: 28 opinions this week, not a dud in any of them, and several of them providing lengthy, thoughtful opinions on both civil and criminal matters...
Case Update
Posted on May 18, 2009Well, this makes it easy. Oral arguments are done for the term in DC, and no new decisions were announced this past week. About the only news — and I’m really plumbing the depths here — is a cert filing in a case out of Washington by the law firm which runs SCOTUSblog and which, [...
Blogiversary
Posted on May 15, 2009The other day, in discussing the Supreme Court’s decision on the nursing home arbitration agreement, I linked to a post that I’d done on May 14, 2006. Other than the de rigeur welcome post, it was the very first one I did. That’s right...
To wit: GUN/TOY GUN
Posted on May 14, 2009My client “Sam” sure sounded like a badass: four counts of aggravated robbery, each with one- and three-year gun specs, and four counts of kidnapping. According to the police report that the prosecutor was reading me, Sam tried to hold up four people in an apartment at gunpoint...
Nursing homes and arbitration agreements
Posted on May 13, 2009A year ago, I wrote about the 8th District’s decision in Hayes v. Oakridge Nursing Home, in which the court by 2-1 vote invalidated an arbitration clause in a nursing home contract between the home and a 94-year-old resident. Although sympathetic to the result, I questioned the court’s reasoning, especially in finding that the agreement [...
What’s Up in the 8th
Posted on May 12, 2009On tap this week in the 8th: F. Scott Fitzgerald’s observation that there are no second acts in American lives doesn’t apply to grand juries, what abuse of discretion should mean, and people you wouldn’t want as neighbors. What to do if a grand jury no-bills a case? Take it to a different grand jury...
Case Update
Posted on May 11, 2009The US Supreme Court has finished oral argument for the term, and about the only key criminal case still undecided is Melendez-Diaz v. Massachusetts, involving the applicability of Crawford v. Washington to lab reports. Word is that President Obama may announce his pick for the justice to replace David Souter; a somewhat disquieting aspect of [...
Friday Roundup
Posted on May 08, 2009Time to update you on some past stories: what happened to Harry Ollison, what’s going to happen to teens sentenced to life in prison without parole, and judicial opinions I’d like to see. Life for teens. A year ago, I mentioned a news story which pointed out that America and Somalia are the only countries which [...
Legislative intent
Posted on May 07, 2009One of the problems with trying to determine legislative intent is that it presumes the legislature had one. One of the only two justices on the Ohio Supreme Court with any legislative experience picked up on that last week in the court’s decision in Eppley v...
Hard time
Posted on May 06, 2009Juanita Myrick had a pretty good gig going. She worked for the Cuyahoga County Department of Employment and Family Services for 17 years. For 14 of them, she used her position to issue herself checks — 759 of them in all — for public assistance benefits she wasn’t entitled to...
What’s Up in the 8th
Posted on May 05, 2009Mamas, don’t let your children grow up to be personal injury lawyers. And while you’re at it, you might warn them about the dangers posed by the combination of women and crack pipes. I had an old client, whom I’ll call Marilyn, telephone me last week...
Case Update
Posted on May 04, 2009Lots of news from DC, topped with the announcement that David Souter will be retiring from the Supreme Court. For those of you with a bent for walking down Memory Lane, check out this article from the Washington Post right after Souter first took the bench: Justice David H...
A coming Ice Age?
Posted on May 01, 2009The Supreme Court occasionally ventures out of Columbus to hold arguments in various courthouses around the state. The venue last week was the Columbiana Courthouse, and Chief Justice Moyer began the proceedings by noting that the court was returning to Columbiana for the first time in 260 years, which was off by only a century; [...
School Days
Posted on April 30, 2009One conversation I never had with my kid over dinner: “So, honey, anything happen in school today?” “Yeah, I got strip-searched.” Last week, the Justices of the United States Supreme Court debated just that scenario, in Redding v...
Bye Bye, Belton?
Posted on April 29, 2009I’m not sure what all the signs of the Apocalypse are, but right after Pestilence and Famine has got to be Antonin Scalia providing the majority for a pro-defendant 4th Amendment decision. One of the well-recognized exceptions to the warrant requirement is search incident to arrest...
What’s up in the 8th
Posted on April 28, 2009Slim pickings — only a dozen or so cases. A lesson (actually two) for appellate lawyers in the necessity of reading the journal entry you’re appealing from, the fact that the old line “just when you think you’re out, they pull you back in” applies to prison, too, and a reminder that the “plain feel” [...
Case Update
Posted on April 27, 2009Nothing from interest out of Columbus, except for the usual spate of disciplinary decisions, like this one, which helpfully informs us that if you’re going to forge a judge’s signature on a journal entry granting occupational driving privileges, you need to come up with a better excuse than “I wanted to show my client what one [...
Coffin nails
Posted on April 24, 2009Retro Week here at the Briefcase is almost over. Got the briefs done, and next week we’ll go back to a full schedule, which will include a look at the Gant decision, the oral argument in the Supreme Court case on strip-searching school students, and the possible ramifications of its decision earlier this year in [...
Ollison Update
Posted on April 23, 2009Well, that certainly hit a sore spot. Last week, I highlighted the 8th District’s decision in State v. Ollison, affirming a 3½ year sentence for a 76-year-0ld Korean War vet who’d fired a shotgun at someone who’d been harassing him, hitting the “victim” in the back of the leg with three small pellets, resulting in injury [...
War Stories, Chapter 43
Posted on April 22, 2009Time for another retro post. Every now and then, instead of providing insightful analysis, I regale my readers with an episode from my own experiences in what most observers have concluded is a thoroughly undistinguished legal career. This post, from January of 2008, recounts one of them...
What’s up in the 8th
Posted on April 21, 2009A real live post this time. No lifelines to civil attorneys who haven’t learned the rules, a split in search and seizure decisions, and three dissents in criminal cases, doubling the amount for the entire year. That, and some reminders to trial judges not to get too cute, are on tap this week down by the [...
Gant out
Posted on April 21, 2009Had to take time out for this breaking news. This morning, the Supreme Court released one of the most significant 4th Amendment cases in the past several years. Arizona v. Gant, which I discussed back here, involved the question of whether the police can search a car incident to the driver’s arrest, if the driver [...
Retro Week
Posted on April 20, 2009Yep, it’s time to stroll down Memory Lane this week at the Briefcase. Because of those two nasty briefs still lingering on my desk, as I mentioned on Friday, I’m only going to have time for one, maybe two “real” posts this week...
Thanks for the mammaries
Posted on April 19, 2009Back in October, the US Supreme Court heard oral argument in FCC v. Fox, concerning the FCC’s “fleeting expletives” policy; I discussed the lower court’s decision here, and the oral argument here. The Court hasn’t ruled on the case yet, but when it does, it will also affect the FCC’s ruling in the famous Janet [...
Scheduling Conflicts
Posted on April 17, 2009Well, here’s the deal, gang. I’ve got briefs due in the Supreme Court and the 8th District next Friday, and despite my hopes to the contrary, it doesn’t look like they’re going to write themselves. (If you’re waiting for me to do one of those self-help books, like “Eight Tips from Highly Organized and Successful People,” [...
Prosecutorial discretion
Posted on April 16, 2009The lead opinion in State v. Ollison from the 8th District last week doesn’t give any clue that the case is out of the ordinary. Ollison and his girlfriend, Barbara Williams, lived in a trailer in Cleveland. They were acquainted with Moore, and let him sleep in a car on the property...
Once more, with feeling: Post-release controls and stare decisis
Posted on April 15, 2009When is a sentence not a sentence? How does a court overrule a case without doing so? Which came first, the chicken or the egg? The Ohio Supreme Court provided answers to two of these metaphysical conundrums last week; sadly, the chicken/egg one, which has always bedeviled me, was not one of them...
What’s up in the 8th
Posted on April 14, 2009Eric “Big Willie” Wilson reacted the way one might expect a drug dealer who’s just been robbed to react: he got out of his car and chased James Yhonquea, the guy who’d robbed him, down the street. The two exchanged gunfire before Wilson caught up with Yongquea, shot him in the back, and retrieved his [...
Case Update
Posted on April 13, 2009A light week. Nothing notable from DC. The Columbus Seven handed down a couple of significant decisions, which we’ll talk about on Wednesday. The weekly spate of disciplinary cases features this one, in which the panel recommended suspension for six months, the board upped that to two years with one stayed, and the Supreme Court [...
A man’s home…
Posted on April 10, 2009If you needed to know a single fact to give you insight into the American character, it is that John Wayne was still the most popular actor in this country twenty years after his death. This land is my land, this land your land, but it’s certainly not a land for the squeamish, and that’s reflected [...
Your lyin’ eyes
Posted on April 09, 2009The cops did a pretty thorough job taking down Eddie Coleman for trafficking drugs. Each of the search warrant affidavits for the two houses Eddie used is 27 paragraphs long. The detective spends the first seven reciting his qualifications, and then gets down to business: there’s a “confidential reliable informant” who’s told him that Eddie [...
Following the rules
Posted on April 08, 2009If attorney malpractice insurance rates increase anytime soon, it won’t be because of the 8th District. I’m not a stickler for rules, but it’s becoming increasingly clear, based on a couple of decisions last week, that the 8th isn’t, either...
What’s up in the 8th - Apocalypse Now
Posted on April 07, 2009Yep, Marlon Brando’s “the horror… the horror…” accurately encapsulates the 8th’s criminal decisions last week. Fourteen criminal decisions, and the best defendants can muster is a sentence vacated so that the trial court can tell the defendant that post-release controls are discretionary, not mandatory...
Case Update
Posted on April 06, 2009A couple of decisions, though nothing major, from the banks of the Potomac: in 14 Penn Plaza v. Pyett, the Court held that collective bargaining agreements can require employees to submit age discrimination claims to arbitration, rather than filing suit, and in Harbison v...
Musings
Posted on April 03, 2009We haven’t done a Friday Roundup for a while, where instead of launching into a jeremiad against some recent court decision, I’d simply surf the web and mail it in, extending myself only so far as to make some snarky comment or two. Well, tough week, so that’s all the loving I’m showing today...
What 4th Amendment?
Posted on April 02, 2009Just the facts, ma’am: About 8:30 on a July evening last year, the cops spotted eight males “loitering on a vacant property.” The officers approached the males and asked them for ID. My client, who we’ll call Ralph, said he didn’t have any...
Old Chief and waivers at sentencing
Posted on April 01, 2009Your client’s on trial for having a weapon under disability. No, that doesn’t mean he carries a Glock, but gets to park in the handicapped spots, it means that he’s been convicted of crimes involving drugs or violence, making it illegal for him to have a gun...
What’s up in the 8th
Posted on March 31, 2009A St. Paddy’s day hangover, apparently. Not surprising, given the plethora of Irish judges on the court, but this results in only nine decisions, less than half the normal workload. Four are in criminal cases, and every one involves the validity of a plea, with defendants batting ...
Case Update
Posted on March 30, 2009The Potomac 9 showed criminal defendants no love this past week. In Knowles v. Mirzayance, it reversed the 9th Circuit (again) on a habeas case. The opinion’s not worth a lengthy discussion, because the 9th Circuit’s ruling was a bad one, but lawyers who do habeas work should definitely give it a read, especially regarding ineffective [...
In all candor
Posted on March 27, 2009On Wednesday I talked about a recent case I had involving whether a parent’s slapping a child constituted domestic violence, and mentioned that I’d filed a brief which included not only cases supporting my position, but also cases where the courts had held that the parent’s attempt at discipline had crossed the line...
What’s up in the 8th
Posted on March 26, 2009Using the prosecutor’s office as a collection agency, reluctant domestic violence victims, and the metaphysical question of whether one can attempt an attempt featured prominently in the 8th District cases last week. Let’s get down to it...
Spare the Rod…
Posted on March 25, 2009It’s not a bad case, as domestic violence cases go. My client Jorge discovered that his 17-year-old daughter had gone to the homecoming dance with someone he’d forbidden her to see, so he slapped her a few times. He’s got a couple priors, though, which makes this a 3rd degree felony...
Medical miracles
Posted on March 24, 2009Well, I made it. Turns out that that I fell on the right side of the somewhat forbidding mortality rate at Rob & Emma’s Hospital and Tire Center. Maybe it’s just me, but I did think it was bad form for the nurse, while she was escorting me down the hall to pre-op, to shout [...
Why I ? the 8th
Posted on March 20, 2009Yes, I know, the 8th gets routinely reversed in civil cases, and I’ve lambasted it for its obsequious deference to trial judges in sentencing cases and for its cringeworthy hearsay jurisprudence. But all is forgiven. Last week, in State v. Acy, the 8th again proves itself the most 4th Amendment-friendly court in Ohio...
The latest on allied offenses
Posted on March 19, 2009This week, anyway. Back in October, I’d reviewed the oral argument in State v. Winn, the latest effort in the seeming Sisyphean task of articulating a coherent standard for determining allied offenses, the lack of which I’ve addressed ad nauseam (sample here)...
Never too late?
Posted on March 18, 2009A couple weeks ago, in State v. Thomas, the 1st District granted Marlin Thomas’ motion to reopen his appeal. They’d earlier held that his two convictions for felonious assault, one under the deadly weapon section and the other under the serious physical harm section, weren’t allied offenses...
What’s Up in the 8th
Posted on March 17, 2009Take three sentencing cases, add two search decisions, toss in a couple of Colon issues and a pinch of some weird sex case, bring to boil, simmer for twenty minutes, and you’ve got the normal 8th District weekly stew. Let’s take a look… The moral of State v...
Case Update
Posted on March 16, 2009Apparently, the Columbus Seven were so disoriented by the recent redesign of the Supreme Court’s web site that they couldn’t bring themselves to write any opinions. The best news about the redesign, of course, is that it offers the ability to download oral arguments through iTunes...
From the mailbag; shutting up
Posted on March 13, 2009Ask the Briefcase. Well, actually, not from the mailbag. My buddy Paul is in trial this week. Normally, about 30% of our conversations start out with the phrase, “Hey, Russ, can you find a case that says…” When he’s in trial, the percentage approaches 80...
The Adam Walsh Act - the final straw?
Posted on March 12, 2009Last year, in Hyle v. Porter, the Ohio Supreme Court held that the residency restrictions for sex offenders adopted by the legislature in 2003 couldn’t be applied retroactively to those who’d committed crimes prior to the effective date of the statute...
Memory Lane
Posted on March 11, 2009Remember the good old days, when the courts would throw out a search, even if the police had a warrant? Those days pretty much ended a quarter century ago, when the Supreme Court handed down US v. Leon, establishing a “good faith” exception to the warrant requirement: the exclusionary rule wouldn’t be applied if the [...
What’s Up in the 8th
Posted on March 10, 2009Two weeks worth of cases to look at, mostly criminal, so let’s get to it. One of the problems with the Cuyahoga courts handling 25,000 criminal cases a year is that some judges tend to speed the process up by taking shortcuts. One of the favorites is the “group plea,” similar to the one shown here...
Case Update
Posted on March 09, 2009The vacay in ‘Nix worked out just fine, but touch-down at Cleveland Hopkins Airport always brings to mind Jim Bouton’s observation in Ball Four that if you’re going to be in an airplane crash in Cleveland, better that it be an inbound flight...
Plough update; SCOTUS in action
Posted on February 26, 2009Five weeks ago I chronicled the travails of Portage County Municipal Judge John Plough, who’d been chastised twice within a fortnight by the 11th District court of appeals. The first was for not responding to that court’s orders to provide the record for an appeal...
Post-arrest silence
Posted on February 25, 2009I’ve been a frequent critic of appellate courts taking all the detritus from a criminal trial and sweeping it under the carpet called “harmless error.” Sometimes, though, that’s the better approach, as evidenced by a couple of 8th District decisions last week...
What’s Up in the 8th - Back to the future
Posted on February 24, 2009Oh, happy day, at least for some of you Cuyahoga County denizens who’ve gotten mail notifying you that one of the city’s traffic cameras have caught you doing 40 in a 35 mph zone, a sin which can be expiated by mailing off a check for 120 bucks...
Case Update
Posted on February 23, 2009No news on the Potomac, but the Court will hear oral argument today in Rivera v. Illinois, which presents an unusual fact pattern and an interesting issue. The judge had overruled a defense peremptory challenge in voir dire, holding that it was discriminatory (yes, Virginia, Batson applies to defense challenges, too), and seated the juror...
Friday Roundup
Posted on February 20, 2009Mind games. I’ve mentioned judges sentencing on acquitted conduct before — enhancing a sentence based on conduct the defendant had never been charged with, or had even been acquitted of, but a Federal judge in Illinois went one better: he increased the sentence based on a finding that if the defendant had been out on [...
Props to Bill
Posted on February 19, 2009As most of my regular readers know, we’ve been having a pitched battle up here in Cuyahoga County over open discovery in criminal cases. I have not been a dispassionate observer; I have regularly pilloried Cuyahoga County Prosecutor Bill Mason for his opposition to it...
Too clever by half
Posted on February 18, 2009Sometimes you can get away with gaming the system. Sometimes not, as the defense found last week in State v. Gilbert, a case involving a subject not frequently encountered by criminal lawyers: testimonial immunity. Gilbert had been convicted of murder and aggravated robbery, and while awaiting sentencing, sent several letters to the prosecutor proposing that he testify [...
8th District Roundup
Posted on February 17, 2009Sometimes reading cases teaches me stuff I didn’t know. Sometimes it just reinforces things I already knew. This is what I learned/relearned from the 8th District’s decisions last week. You know when you do a no-contest plea, and the court asks the prosecutor to put a factual basis for the plea on the record? As the [...
Case Update
Posted on February 16, 2009The only news from DC is good news — the latest update on Justice Ginsberg’s cancer surgery, which found no metastasis. Not a whole lot going on downstate, either. If you’re thinking of becoming a lawyer, go light on the gas pedal: the Supreme Court disapproves a bar applicant because of, among other things, sixteen speeding [...
Rape shield and the right of confrontation
Posted on February 13, 2009You’re representing a defendant in a child rape case. The eight-year-old victim has testified in graphic detail as to exactly what your client did. You know the jury’s sitting there thinking that the kid has to be telling the truth, otherwise how would she know this stuff? You know that the child has an alternative source [...
Eyewitness identifications and court-appointed experts
Posted on February 12, 2009Criminal appellate lawyers can tell you how difficult it is to get a conviction reversed, even under the best of circumstances. Questionable police testimony is routinely accepted to overrule motions to suppress searches or statements, violations of evidentiary rules are disregarded under the rubric of “harmless error,” and courts regularly indulge in fictions, such as [...
8th District Roundup
Posted on February 11, 2009Thirty-three decisions last week, over two-thirds criminal, and good lawyering abounds. Take a look at State v. Weinstein, for example, where the 60-year-old defendant is stopped while driving around one of the local suburb’s premier drug marts...
Case Update - Appellate Edition
Posted on February 10, 2009One other decision last week from the Ohio Supreme Court that I skipped over yesterday: in State v. Malone, the court holds that a conviction for intimidating a witness under RC 2921.04(B) requires that criminal proceedings have already been insitituted...
Case Update - OSC Edition
Posted on February 09, 2009Nothing doing in DC, except news of Justice Ginsberg’s surgery for pancreatic cancer. (SCOTUSblog explains why this might not be as bad as it sounds.) Meanwhile, after listening to me whine for the last month about the OSC’s paucity of decisions, the Moyer Gang decides to shut me up by issuing ten opinions...
SCOTUS arguments, judicial nominations, dope, and other stuff
Posted on February 06, 2009This could be one of the more significant US Supreme Court terms for criminal law in recent memory. We’ve already had two major decisions on 4th Amendment law, Herring v. US (discussed here) and Arizona v. Johnson (here), and in the pipeline is Arizona v...
Another look at the Deem test
Posted on February 05, 2009Timothy Evans ran into some bad luck on November 18, 2005. His simple purse-grab outside a store in Cleveland was foiled because the woman just held the purse tighter. He told her he had a gun, but it didn’t have the desired effect; “Well, you know what? You’re going to have to use it,” the victim replied...
Medical privilege in civil actions
Posted on February 04, 2009You’re representing Joe in a personal injury action, and the other side sends you a medical authorization for the records of Joe’s treatment with Dr. Smith, his family physician of the past ten years. But when you present the authorization to Joe, he tells you that, in addition to treating him for his back injuries, Dr...
What’s Up in the 8th
Posted on February 03, 2009Bad week for criminal defendants, a much better one for civil plaintiffs; in twelve criminal cases, the meager results are the vacation of a plea and a reversal because the judge failed to merge certain offenses. State v. Davis involves the former question, and a search issue as well...
Case Update
Posted on February 02, 2009It’s not uncommon for judges to instruct counsel for the prevailing party in the case to prepare the journal entry, but the teaching of Disciplinary Counsel v. Stuard is that it’s a no-no to meet with counsel ex parte to help them prepare it...
Consent-once-removed, and other fictions
Posted on January 30, 2009Yesterday we talked about the Supreme Court’s decision in Arizona v. Evans, involving a police officer’s right to frisk passengers in a stopped vehicle. The week before, the Supreme Court handed down Pearson v. Callahan which, despite it being a civil case, also has important ramifications for 4th Amendment law...
It could have been worse
Posted on January 29, 2009My legions of faithful readers are by now familiar with my dystopian view of where the Supreme Court is headed on 4th Amendment issues. Despite the Court’s unanimous decision in favor of the government on a 4th Amendment issue the other day in Arizona v...
Take me out to the ballgame
Posted on January 28, 2009On June 11, 2002, Don Krieger, Clifton Oliver, and Andrew Mendez went to an Indians game in Cleveland. The Tribe beat the Philadelphia Phillies handily 5-1, with Bartolo Colon pitching eight strong innings, and Milton Bradley providing the the big blow with a 3-run homer in the 3rd...
What’s Up in the 8th
Posted on January 27, 2009After a couple of sluggish post-holiday sessions, the 8th issued twenty decisions last week. One we’ll talk about one in more detail tomorrow. The highs and lows for the other nineteen: Although conspiracy is a staple of Federal prosecutions, it’s fairly rare on the state level...
Case Update
Posted on January 26, 2009Not much out of DC, and nothing out of Columbus last week. Roberts et al. came down with one decision, Pearson v. Callahan, concerning qualified immunity for police officers in suits for 4th Amendment violations. Pearson is interesting for both on its effects on search and seizure law, especially the “consent-once-removed” doctrine, and its treatment [...
Raising the white flag?
Posted on January 23, 2009Not two weeks after I get done with my “Year in Review — Allied Offenses” post, and here we have another oral argument in the Ohio Supreme Court on allied offenses, another lawyer standing in front of the justices and telling them that “the citizens of Ohio are not well served” by Ohio’s jurisprudence on the [...
Shutting up, and pro bono work
Posted on January 22, 2009This will probably not come as a surprise to many of my regular readers, but I sometimes have a problem keeping my mouth shut. Exhibit 347 was my Christmas story post, relating the trial of Elizabeth, a home health care aide. I was defending her against a charge of theft, based upon her having written checks for [...
What’s Up in the 8th
Posted on January 21, 2009Getting a criminal case reversed on weight or insufficiency of the evidence is a truly Quixotic task, but last week featured not one, but two decisions from the 8th District doing precisely that. In State v. Gatson, the defendant had been convicted of domestic violence and intimidation on his girlfriend, the latter charge being based on the [...
Case Update
Posted on January 20, 2009In addition to the handing down two big decisions in Herring v. US and Oregon v. Ice, which we talked about the last couple days, the US Supreme Court’s granted cert in five cases, including one on student privacy, where a thirteen-year-old girl was strip-searched on the basis of an unproven tip from another statement, and [...
Putting Foster on Ice
Posted on January 19, 2009Three years ago, in State v. Foster, the Ohio Supreme Court decided that the Ohio sentencing statutes pertaining to consecutive sentencing were unconstitutional because they required judicial fact-finding before such sentences could be imposed. On Wednesday, in Oregon v...
R.I.P., exclusionary rule?
Posted on January 16, 2009Wednesday saw the US Supreme Court hand down the 9th and 10th opinions of the term. Herring v. US is either the application of prior law to a narrow, fact-specific situation, or the harbinger of a good faith exception to the exclusionary rule for warrantless searches...
Federal power, and cleaning up
Posted on January 15, 2009I’ve commented before on how there are several areas of Ohio law desperately in need of a clean-up by the Ohio Supreme Court: sentencing, allied offenses, stare decisis, to name a few. There are some areas of constitutional law which could use a fresh look by the US Supreme Court, too...
Supreme Court News
Posted on January 15, 2009Today’s regular post is right below this. There were a couple of major US Supreme Court decisions yesterday, one on sentencing and one on search and seizure. I’ll have a post tomorrow on the latter, which could be one of the biggest cases on the application of the exclusionary rule to come down the pike [...
Year in Review - Sentencing
Posted on January 14, 20092008 may have been the year that the Ohio Supreme Court realized that sentencing had become completely screwed up since its decision two years before in State v. Foster. Sadly, 2008 was not the year that anything much was done about it. The court got the ball rolling in State v...
What’s Up in the 8th
Posted on January 13, 2009State v. Colon, the Supreme Court’s decision last year on when an indictment is defective because it fails to include a mens rea element (discussed here), rears its ugly head in two more 8th District decisions this week. The first is State v. Lawrence, or State v...
Case Update
Posted on January 12, 2009The gang in Washington gets back to work this week, with eight cases scheduled for oral argument, including six criminal cases. The two most significant are Montejo v. Louisiana, which involves the question of interrogation after counsel has been appointed for a suspect, and Boyle v...
Dysfunction at the Junction, and other stuff
Posted on January 09, 2009That the US 6th Circuit is given to internal squabbling isn’t new; the “lack of collegiality” among the Circuit’s 12 judges, presently 10 Republicans and 6 Democrats, was noted over five years ago in this newspaper article. And the bitterly contested dispute over Secretary of State Jennifer Brunner’s ruling on Ohio registration — the court [...
Gone, Baby, Gone
Posted on January 08, 2009Maybe 2009 will be a better year than 2008 for Portage County Municipal Judge John Plough. Then again, 2007 wasn’t any great shakes, either. That’s when Portage Common Pleas Administrative Judge Laurie Pittman filed a complaint against Plough with the Ohio Disciplinary Counsel, claiming that he was making “a mockery of justice...
Year in Review - Allied Offenses
Posted on January 07, 2009The Ohio Supreme Court spent much of the past year attempting to extricate itself from the mess it created in its 1999 decision in State v. Rance. Before that decision, allied offense analysis under Ohio law followed pretty much of a common-sensical approach...
8th District Roundup
Posted on January 06, 2009Well, my worries proved unfounded. A couple of weeks back, I recounted my latest foray into the 8th District, involving a claim of ineffective assistance of counsel because of a failure to file a motion to suppress the defendant’s un-Mirandized statements...
New Year’s Resolutions
Posted on January 05, 2009Welcome back. As you can see, although I took time off from blogging, I didn’t take time off from working on the blog. I finally got around to updating the software I use for doing this, since it’s gone through four revisions since I started back in May of 2006...
Case Update
Posted on January 05, 2009The gang down in DC really knows how to holiday; nothing’s scheduled for this week, and nothing’s happened in the past two save for Chief Justice Roberts’ yearly report on the state of the Federal judiciary, in which he devotes a substantial amount of time to complaining about judicial salaries (judges were the only federal [...
Closed for the Holidays
Posted on December 23, 2008I’m betting you’re going to have a better holiday than this guy. See you back here on January 5th.
A Christmas Story
Posted on December 22, 2008‘Twas the week before Christmas, and all through the courthouse, not a creature was stirring, except for the people in Courtroom 21-A, who were listening to the judge finish up his instructions to the jury an hour after the building had been officially closed...
Death Penalty Holdouts
Posted on December 19, 2008The Ohio Supreme Court’s decision this week in State v. Diar is rather interesting, in light of some recent developments in the death penalty in Georgia. In most situations, a holdout juror, unless he can persuade everyone else to adopt his view, can do more than deadlock the jury...
IAC Claims and Motions to Suppress
Posted on December 18, 2008I got assigned an appeal a little while back with an interesting issue. The case centered on one of the city’s local after-hours joints, where drinks are dispensed without benefit of a license from the Liquor Commission, and, horror of horrors, people gamble, too...
One more time down into the mens rea rabbithole
Posted on December 17, 2008The least of Howard Clay’s difficulties was the weapons under disability count he was facing; the two felonious assault charges, both with gun specs, were the bigger problem. Then again, the disability charge was more defensible: Clay had been indicted under the provision of the statute which creates a disability for someone “under indictment” for possession [...
What’s Up in the 8th
Posted on December 16, 2008Interesting week in the 8th District. Twenty-five cases, only eight of which are criminal; usually, that ratio is reversed. Of the eight, three are reruns, having been before the court before. The court’s struggle with allied offenses continue...
Case Update
Posted on December 15, 2008Nothing out of DC, but the Gang of Seven in Columbus more than makes up for it, with a half-dozen decisions, all of them notable. In State v. Diar, where the court affirmed the conviction of a woman who killed her 4-year-old child, but vacated the death sentence because the jury had been instructed that all [...
Errata and holiday scheduling
Posted on December 15, 2008If you’ve stopped here looking for the Case Update, relax, it’s right below this post. One of my legions of faithful readers pointed out that I’d screwed up the link for the case I’d mentioned regarding expungement on Friday (the one that says an uncounseled misdemeanor conviction is still a prior offense for purposes of [...
Friday Roundup
Posted on December 12, 2008This isn’t Texas anymore. When George W. Bush was Governor of Texas, he signed the death warrant for 152 executions; that was a full 38% of the death row inmates executed during that time period in the entire United States. When he returns to Crawford in another 40 days, he’s going to find the state [...
An expansion of Terry?
Posted on December 11, 2008The course of true love never runs smooth, and neither does the 4th Amendment. That was clear after the oral argument Tuesday in Arizona v. Johnson, the Supreme Court’s latest foray into that thicket. The case stemmed from a traffic stop: a random license plate check revealed a vehicle had an insurance suspension, so the police [...
Knowing your limits, and other disciplinary tales
Posted on December 10, 2008There comes a point in just about every attorney’s career when you realize you’re in over your head. Most of the time, it’s because you’re spread too thin. You’ve just got too much going on, and it’s gotten to the point where stuff’s falling through the cracks: you’re missing deadlines, you’re not keeping track of pretrials, you’re [...
What’s Up in the 8th
Posted on December 09, 2008The court spent the week, for the most part, tying up some loose ends, at least in the criminal area. Two cases, State v. Hayden and State v. Briscoe, involved Colon questions. You’ll remember that back in May, the Supreme Court held in Colon I that an indictment for aggravated robbery for causing serious physical [...
Case Update
Posted on December 08, 2008Last week in Washington, the Supreme Court heard argument in the Phillip Morris case, which stems from an Oregon judgment for $80 million in punitive damages in a smoking case. The Court has reversed the judgment twice, only to have the Oregon Supreme Court reinstate it on different grounds...
Friday Roundup
Posted on December 05, 2008Guess he’ll learn what a tight end really is. Seems that Giants wide receiver Plaxico Burress’ biggest problem isn’t that he (a) shot himself in the leg, thus (b) getting a four-game suspension which will cost him over a million dollars, and (c) putting in jeopardy the $35 million contract he signed at the start [...
Balancing the scales?
Posted on December 04, 2008On August 26, 1998, Jeremy Gross robbed a convenience store. He had worked there part time, and knew the clerk, 24-year-old Christopher Beers. There was little finesse to the robbery. Gross and an accomplice marched into the store, and Gross shot Beers in the chest and stomach, then followed him into the back office and [...
True stories
Posted on December 03, 2008I have a preliminary hearing for Bobby. According to him, he and his pals are standing outside a store when the police pull up and, for no reason, frisk him and find drugs. No reason? No reason, he assures me. The arresting officer is the only one to testify at the hearing...
What’s Up in the 8th
Posted on December 02, 2008If you’re a judge, here’s the trick about dealing with a defendant who’s not a citizen: just read the language contained in RC 2943.031(A). If you do, end of story. If you don’t, well… that’s when we get into “substantial compliance...
Case Update
Posted on December 01, 2008As might be expected, the Supreme Court Nine found it more fitting to engage in the traditional holiday gluttony than to provide me with cases to write about. The cholesterol-laden Court will have oral argument this week in the Phillip Morris case out of Oregon (previous discussions on this blog here)...
Open Discovery: The Jig’s Up
Posted on November 26, 2008Several months ago, I got a call from a producer at a local radio station. They’d seen stuff in the paper about open discovery in criminal cases, and she’d come across my blog, and she thought I might be able to explain some elementary aspects of the subject and answer some questions she had...
What’s Up in the 8th
Posted on November 25, 2008Not a good week for women in Cuyahoga County; the five criminal cases on appeal involved two domestic violence convictions, and one where the defendant had killed a rape victim. Not a good week for defendants, either; after last week’s shutout — criminal defendants went 0 for 8 — we finally get a reversal in [...
Case Update
Posted on November 24, 2008It would be a lot easier for me to write about cases if there were cases to write about. The Ohio Supreme Court hasn’t handed down an opinion on a non-election-related case since October 23. The big news out of the US Supreme Court was SCOTUSblog’s eye-glazing account of how the Court had granted an [...
Friday Roundup
Posted on November 21, 2008Expanding the Blogroll. When I started The Briefcase back in May of 2006, it was one of the very few blogs devoted to Ohio law. Some others have come along since then, and some of those have dropped out. That’s understandable. Doing this, as you might guess, can be incredibly time-consuming...
Never mind
Posted on November 20, 2008Back on October 1, the Plain Dealer’s Regina Brett opened a column with these two paragraphs: Cuyahoga County Prosecutor Bill Mason could end up opening the door to open discovery in Ohio. I met with him on Monday for nearly an hour and a half on the ninth floor of the Justice Center...
Two looks at the criminal justice system
Posted on November 19, 2008One step forward, one step back… Dallas may not be the capital of Texas, but it likely holds the honor of being Ground Zero for wrongful convictions. Piloted for 36 years by Henry Wade, the prosecutor’s office achieved a stunning 93% trial conviction rate...
What’s Up in the 8th
Posted on November 18, 2008Brutal week for criminal defendants by the lake this week: just three weeks after batting .333 — eight reversals out of twenty-four cases – they go oh-for-eight. That mirrors the results statewide: other than a reversal in a juvenile delinquency case, all of the criminal cases in the state last week resulted in affirmances...
Case Update
Posted on November 17, 2008Nothing out of the US Supreme Court this past week, except a decision sure to cheese off the Save the Whales Foundation: in Winter v. National Resources Defense Council, the Court upheld the Navy’s right to conduct sonar excercises in the Pacific, despite claims of environmentalists that such exercises might harm marine life...
Friday roundup
Posted on November 14, 2008My wisdom confirmed. Remember all those posts I wrote about how the Supreme Court’s decision this July in DC v. Heller, declaring that the Second Amendment granted an individual right to bear arms, would have a profound effect on gun regulations? Posts like this one, in which I sagely predicted that “Heller will herald the [...
Discovery Wars
Posted on November 13, 2008I’ve blogged before about the new proposal on discovery from the Cuyahoga County Common Pleas judges. I highlighted the proposal in this post back in September; basically, it would require the prosecutor to turn over witness statements and police reports, which Head Honcho Bill Mason’s office has jealously guarded over the years...
Lab Reports and Crawford
Posted on November 12, 2008Four years after Crawford v. Washington revolutionized Confrontation Clause jurisprudence, at least one major issue remains completely unsettled: the admissibility of lab reports and similar records which have been routinely admitted at trials over the years...
What’s Up in the 8th
Posted on November 11, 2008The defendant in State v. Pate had gotten his 20-year prison sentence the old-fashioned way: he’d earned it, firing a couple of shots at police officers while running from them, then hijacking a car at gunpoint and leading the police on a car chase...
Case Update
Posted on November 10, 2008Nothing going on down in Columbus, but now with the elections over, maybe we’ll see some things happening: the oral argument calendar for the Supreme Court resumes next week. Speaking of elections, 43 new judges were elected in Ohio last week...
Friday Roundup
Posted on November 07, 2008Dirty Talk. As I mentioned earlier this week, the big showdown in the US Supreme Court was Tuesday’s oral argument in FCC v. Fox, the case involving the FCC’s recently-developed policy of punishing “fleeting expletives” in broadcast media...
Guilty pleas on the assembly line
Posted on November 06, 2008There were two cases on guilty pleas out of the 8th this past week. While one resulted in the vacating of the plea, a highly unusual result, I confess it was pretty much of a headscratcher. The one which stayed true to form was State v. Bassett, which presented the question of just how far a judge [...
What’s Up in the 8th
Posted on November 05, 2008Some funky stuff this week. Last week, I mentioned that there’s a lot of case law from the 8th holding that a frisk for weapons isn’t automatic after a stop; even where drugs are involved, the police have to show that they had a reasonable suspicion that the suspect is armed and dangerous...
Case Update
Posted on November 04, 2008With two of the seven judges out campaigning for re-election, not much going on in Columbus. Down in Washington, the Supremes heard a case yesterday involving federal pre-emption, specifically, whether FDA approval of a drug bars state court common-law negligence claims...
War stories
Posted on November 03, 2008I was on the road this weekend, so we’ll do the Case Update tomorrow. Which won’t take long, because there was absolute diddly out of the Ohio Supreme Court last week. Instead, I’ll update you on a couple of clients. First up is “Jamie,” the 46-year-old transvestite with 26 prior drug cases...
Friday Roundup
Posted on October 31, 2008Tune in to next year’s episode of CSI. I was talking to a prosecutor last week about the new open discovery proposal here, which would require the state to provide the defense with a “discovery packet” within one week of the first pretrial...
Open Discovery: Update
Posted on October 30, 2008As you know, I’ve been following the recent proposal by the judges of the Cuyahoga County Common Pleas Court to allow “open discovery” in criminal cases. (Prior posts here, here, and here; you can read the judges proposal here. Today, the Plain Dealer’s Regina Brett wrote another column on the subject, detailing what happened in a local [...
The elusive search for the bright line
Posted on October 29, 2008While I’ve been critical of the 8th’s confrontation clause jurisprudence, their 4th Amendment cases have been all one could hope for, and that continued last week with State v. Kaine. The facts are simple: The cops had staked out a Walgreen’s parking lot in a “high drug area,” and observed a Ford Explorer pull into [...
What’s Up in the 8th
Posted on October 28, 2008Twenty-four cases last week, and at least a partial reversal in one-third of them. I’ve chided the 8th before for its mishandling of Crawford and hearsay, but all is forgiven: in State v. Rufus, the court nails it. Short version: Husband and wife get into a fight, wife claims husband started it, policeman says he interviewed [...
Case Update
Posted on October 27, 2008Just a month ago, I highlighted the Supreme Court’s review of Fletcher v. Univ. Hospitals, in which the 8th District had held that a plaintiff’s failure to attach an affidavit of merit to her medical malpractice complaint should be addressed by a motion for more definite statement, rather than a motion to dismiss...
Friday Roundup
Posted on October 24, 2008I’ve got one of those Charge of the Light Brigade briefs — onward, onward, into the valley of ”judgment affirmed” – due today, in Federal court no less, so let’s just take a quick spin around the web. The Post-Heller landscape...
Judicial writing
Posted on October 23, 2008North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a threedollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He?d made fifteen, twenty drug busts in the neighborhood...
Is the justice system racist?
Posted on October 22, 2008This week’s Plain Dealer dog-bites-man story was that… wait for it… black defendants fare worse in the criminal justice system than white ones. From the 18,000 drug convictions handed down in the Cuyahoga County Common Pleas Court in 2005, 2006, and 2007, the Pee Dee had come up with 364 cases in 2007 that were roughly similar: [...
What’s Up in the 8th
Posted on October 21, 2008There were twelve apostles. There are twelve judges on the 8th District Court of Appeals. Coincidence? I’ll let you decide. Meantime, let’s see what they did last week. Do they still have shop in high school? They did when I went there, and Reason #43 why I didn’t like it was on display in the 8th District’s decision in [...
Case Update
Posted on October 20, 2008The big case out of the US Supreme Court this past week was the decision on the Help America Vote Act. HAVA requires states to check voter registrations against government databases like drivers license records, and to flag mismatches. The GOP had sued Ohio Secretary of State Jennifer Brunner to turn over information about mismatches [...
Friday Roundup
Posted on October 17, 2008Technological meltdown. The Luddites might have had a point. For the last three weeks, there’s been a little icon on my computer, telling me that “new updates are ready to be installed.” On Tuesday, I check it out, and it’s for Windows Service Pack 3, the latest patch intended to make me secure from hackers [...
A pound of flesh
Posted on October 16, 2008It’s not unusual to have a criminal case where the police officer’s pursuit of the case approaches the level of a vendetta. I’ve got one now. Short version is that my guy — let’s call him Leon — had some run-ins with the North Olmsted police, and one officer in particular — we’ll call him Ralph — [...
The Supremes take another look at the exclusionary rule
Posted on October 15, 2008If there’s one thing criminal lawyers, normally a contentious lot, can agree on, it’s that the 4th Amendment has been pretty much eviscerated over the past thirty years. Decisions like Whren v. US, which upheld car stops even where the reason for the stop was pretextual, US v...
What’s Up in the 8th
Posted on October 14, 2008Mostly criminal cases this week… There have been any number of decisions on advising a defendant of post-release control at sentencing, and State v. Sneed is another, with a bit of a twist. The trial judge had orally advised the defendant of PRC, but forgot to include it in the journal entry...
Case Update
Posted on October 13, 2008Slim pickings from the Ohio Supreme Court, and only 50 decisions in the courts of appeals. The big decision from the Ohio Seven was State v. Veney, in which the court affirmed the 10th District’s vacating of a plea because the trial court had failed to inform Veney that the state had to prove his [...
Sentencing: Clarifying the standard of review
Posted on October 10, 2008I’m finally redeeming my promise to discuss the two criminal cases that the Ohio Supreme Court decided last week. Well, at least one of them; I’m going to kick the discussion of the Supreme Court case on the hearsay rule into next week. The opinion in State v...
Another go-around on Rance
Posted on October 09, 2008There were a couple of decisions from the Supreme Court last week that merit some discussion, and I’d promised you a recap of the oral argument in State v. Winn, the latest case on allied offenses. We’ll do the latter today, and the former tomorrow...
Open discovery update
Posted on October 08, 2008I mentioned last week that, despite Bill Mason’s seeming embrace of open discovery in his interview with the Cleveland Plain Dealer’s Regina Brett last week, he’d sent the judges a letter backing away from that. I’ve seen a copy of the letter since then, and frankly, it’s not quite as in-your-face as I’d imagined...
What’s Up in the 8th
Posted on October 07, 2008State v. Ennist has some good stuff about speedy trial. Did you know, for example, that a guilty plea waives your right to claim a violation of your statutory right to speedy trial, but not your constitutional right? Neither did I. Didn’t make much difference, as it turns out; proving the constitutinal violation is a [...
Case Update
Posted on October 05, 2008No shortage of big decisions by the Ohio Supreme Court this week. In State v. Kalish, the court defines the standard to be used by appellate courts in reviewing sentences; later this week I’ll explain why it doesn’t mean anything. In State v...
Good people
Posted on October 03, 2008I’m on the road today. Actually, I was yesterday, too. I’m down in Washington, DC, attending the annual dinner for the Southern Center for Human Rights. It’s an organization that was formed back in 1976, and does prison reform and death penalty defense throughout the South...
Open discovery is coming… maybe
Posted on October 02, 2008The Cleveland Plain Dealer, like many other newspapers in the country, is facing a decline in readership. Its answer to that crisis has been to cut back its pages; the front section, containing national and international news, has gone from a customary sixteen pages to eight, and the Metro section has suffered a similar amputation...
The pitfall with Crawford
Posted on October 01, 2008I’ve commented before that a distressing number of trial and even appellate courts can’t seem to get a handle on Crawford v. Washington, the 2004 Supreme Court decision which banned the use of “testimonial” statements at trial...
What’s Up in the 8th
Posted on September 30, 2008I practice in Cuyahoga County. A fair amount of my readership is here. The 8th District Court of Appeals hands down more decisions than any other appellate district in the state. Hence, the new feature here: Tuesday’s rundown of decisions from the Cuyahoga County Court of Appeals...
Case Update
Posted on September 29, 2008Not much on the Ohio Supreme Court’s agenda this week. Perhaps the most significant decision was In re Andrew. Andrew had been adjudicated a delinquent and shipped off to the Department of Youth Services. At age 17, he was cited as a parole violator, but the hearing didn’t take place until after he’d turned 18...
Friday Roundup
Posted on September 26, 2008My store of knowledge grows. What with only having a law degree and 33 years of practice, it’s a damn good thing I have clients who can be counted on to tell me what the law is. Earlier this week, I had a pretrial for one client charged with drug possession, and learned from him [...
Upcoming Supreme Court arguments
Posted on September 25, 2008‘Tis the season… for oral arguments, anyway. The US Supreme Court calendar gets under way on October 6, but today we’ll look at the lineup of Ohio Supreme Court cases which are scheduled for argument next Tuesday and Wednesday. Fletcher v...
Home Rule
Posted on September 24, 2008If sovereign immunity is the Rubik’s Cube of Ohio law, home rule isn’t far behind. Ohio’s concept of home rule is a legal doctrine that only a bar examiner could love: it requires a three-step analysis, the second step of which involves a four-part test...
Case Update - Appellate Edition
Posted on September 23, 2008In criminal cases, the 6th District looks at the applicability of State v. Colon (I and II, discussed here), and essentially decides that the failure of an indictment to include a mens rea requirement is not a structural error if the defendant pleads guilty...
Case Update - Supreme Court Edition
Posted on September 22, 2008Guess that’ll teach me to keep my mouth shut. After bemoaning the lack of Ohio Supreme Court decisions for the past month or so, I sit down to do the weekly case update and find no fewer than seventeen of the little suckers. We’ll take a look at those today, and then do the courts of [...
Friday Roundup
Posted on September 19, 2008It’s 11:00 AM. Do you know where your kids are at? I got on the 8th District’s case yesterday for some decisions on allied offenses, but one they got indisputably right was Maple Heights v. Ephraim. Thelma Ephraim’s 17-year-old son did various bad things one particular night, including fleeing from the police, resisting the attempts [...
Allied offenses update
Posted on September 18, 2008Further evidence was offered in the past few weeks that the 8th District is having an awful time deciding how allied offenses work. In fact, one could make a pretty good argument that in the last month, they’ve yet to get a case right on this issue...
Open discovery — the ante is raised
Posted on September 17, 2008As my legions of faithful readers know, this blog is somewhat Cuyahoga-centric: I practice in Cleveland, so I’m naturally going to devote more attention to what goes on in the courts here, especially the 8th District Court of Appeals. While I was traipsing through the woods of central Ohio last week on my vacation, hunting [...
Ventures on the “dark side”
Posted on September 16, 2008Mamas, don’t let your babies grow up to be defense experts in child pornography cases… Dean Boland parlayed a law degree and being a whizz with computers into a nice gig at the Cuyahoga County prosecutor’s office, that combo landing him a place at the trial table of the biggest civil case in the county’s history: [...
Case Update - Pioneer Edition
Posted on September 15, 2008I spent the last week getting away from it all by living in a log cabin, which has the added benefit of allowing me to pass it off as my boyhood home in an effort to gain street cred for my forthcoming run for the presidency. As you can see, I wasn’t exactly roughing it, but [...
Friday Roundup
Posted on September 05, 2008News articles I never finished reading. As Elton John once sang, “All the science, I don’t understand…” I found this story somewhat reassuring: Hurray for the European Court of Human Rights. It has rejected an emergency injunction to block the Large Hadron Collider from turning on on 10 September...
Crime and politics
Posted on September 04, 2008In keeping with the spirit of the season, I thought I’d pay tribute to one of the the most prominent figures of the 1988 presidential election. The gentlemen on your left is William R. Horton. Back in 1974, he and a couple of other guys robbed a gas station...
Fighting the fight
Posted on September 03, 2008Malik Wilkinson got convicted of escape and received a four-year sentence. He appealed, and his lawyer filed an Anders brief, saying there were no meritorious assignments of error. Wilkinson filed his own pro se brief, and last week, the 2nd District reversed his conviction...
Case Update
Posted on September 02, 2008The Magnificent Seven in Columbus have apparently been so busy decorating their Labor Day trees and doing last-minute holiday gift shopping that they haven’t had time to write any opinions this past week. Somehow, I don’t see a surge of activity coming this next week, either...
Friday Roundup
Posted on August 29, 2008Ungrateful bastard. I felt kinda bad for the comments I made yesterday about how Cuyahoga County has raised the assigned counsel fees back to what they were in 1978. After all, at least for the low-level felonies, it works out to a 25% raise from what they were after they got cut back in 2002...
My cup runneth over
Posted on August 28, 2008They didn’t show this on LA Law. It’s not easy to practice law here in Cuyahoga County. This morning I walked over to my my 9:00 criminal cases at about 9:15. I’ve got two pretrials and a hearing on a motion to suppress. No, I’m not a guy who’s usually late...
Resentencing woes
Posted on August 27, 2008Resentencing is pretty much a fact of life for judges any more. There are still cases coming back for Foster resentencings, and then there are all those cases where defendants have to be resentenced because of the failure to properly advise them of post-release controls...
Police emergencies and sovereign immunity
Posted on August 26, 2008So here’s the situation. Cop is transporting a prisoner from the Sylvania jail to the Lucas County jail. Stops at a red light. Woman coming in the opposite direction makes a left turn, because she has a green arrow for the left turn. Cop, as noted in appellate court’s opinion, “became confused and proceeded forward [...
Case Update
Posted on August 25, 2008Perhaps the most interesting decision out of the Supreme Court this past week, Ahmad v. AK Steel Corp., was one it didn’t make. Eighteen months after the appeal had been filed, fifteen months after the court had accepted it, ten month after the briefs had been completed, and seven months after oral argument, the Court decided [...
friday roundup
Posted on August 22, 2008I’m offended that you find this offensive. Christian DeJohn wanted to express his views in his graduate military history courses at Temple University that women shouldn’t be allowed to serve in combat. He feared, though, that this would run afoul of the university’s policy against sexual harassment, which rather broadly prohibits “expressive, visual, or physical [...
PRC and the right to counsel
Posted on August 21, 2008Amjad Dayem had been doing his time on the agg robb case he caught back in 1997, carefully marking each day of his ten-year sentence until his release date, which was August 31, 2007. Nine days before that, he got served with papers telling him he had to have a resentencing hearing because the judge in his [...
Follow the money
Posted on August 20, 2008Here’s what I learned in school court today: When you’re doing a plea, and the prosecutor spells out the offense your client is going to plead to, and the judge says, “You mean that’s a crime?”, it’s a pretty good sign for your client...
The lingering effects of Rance
Posted on August 19, 2008In July of last year, I highlighted a 1st District case, State v. Hundley, to focus on the absurdities of Ohio’s law on allied offenses as articulated by the Supreme Court’s decision in State v. Rance. No doubt deeply influenced by my insightful analysis, this past April the Supreme Court clarified Rance in State v...
Case Update
Posted on August 18, 2008A trio of civil decisions by the Ohio Supreme Court this past week. In Nadra v. Mbah, the court declared that RC 2305.10’s two-year statute of limitations for personal injuries was the appropriate limitations period for Federal civil rights actions under 42 USC 1983; although the 6th Circuit and most Ohio courts had applied that statute, two districts [...
The tipping point
Posted on August 15, 2008Tarika Wilson’s killer went free last week. “Killer” might not be the word a lot of people would use for Joseph Chavalia: he was the police officer who gunned down Tarika during a drug raid on her house, as she was holding her year-old child...
A roommate for Bubba
Posted on August 14, 2008One of the young lawyers in our office had her first jury trial last week, and she was asking around for pointers. We’ve got some excellent criminal lawyers in the office, and she wanted to take advantage of that resource. She figured she might as well ask me, too, so we talked about jury selection...
Guns and searches
Posted on August 13, 2008Back when the Supreme Court’s decision in District of Columbia v. Heller came down and declared that individual ownership of a gun was a fundamental constitutional right, I predicted that courts would have to take a second look at the validity of weapons disability and perhaps even firearms specifications statutes...
Employer intentional torts
Posted on August 12, 2008Back in 1911, Ohio created the system of workers compensation. It offered a tradeoff: workers could receive compensation for their injuries without having to prove their employer was negligent; on the other hand, the compensation was less than the tort system would normally provide, and they gave up their right to sue the employer in tort...
Case Update
Posted on August 11, 2008The gang in Columbus swung back into action last week. In State v. Jeffries, the Supreme Court held that only a statement made during plea negotiations or discussions is inadmissible under EvidR 410; the defendant’s statement at issue here was made before the plea negotiations commenced, and was submitted when they did begin...
Friday Roundup
Posted on August 08, 2008Chat time. By now, it’s a well-established fact that approximately 30% of the people in the AOL teen chat rooms are dirty old men trying to hit on young girls. The problem, at least for that 30%, is that the other 70% are FBI agents or cops posing as young girls...
Once bitten, twice shy
Posted on August 07, 2008Back in March, the 8th District decided State v. Casalicchio, which involved the question of whether a sentence imposed without advising a defendant of post-release controls was void, or merely voidable. Nine months earlier, the Supreme Court had held in State v...
False confessions
Posted on August 06, 2008The Jon Benet Ramsey case took its latest turn with the news a couple of weeks ago that new DNA tests had exclused the Ramsey family members as suspects in the child’s death. This, of course, was a case that was supposed to have been solved a couple years back when John Mark Karr confessed to [...
Case Update - Back in the Saddle Edition
Posted on August 05, 2008The only other Supreme Court decision besides Colon II, which I discussed yesterday, was State v. Clark, which involved the issue of whether a guilty plea was voided by the trial judge’s giving incorrect information about post-release controls: the judge had told the the defendant, who’d pled to aggravated murder, that he’d have to do five years [...
Reconsidering Colon
Posted on August 04, 2008I know, it’s the day for the Case Update, but we’ll have to save that for tomorrow. While I was chillin’, the Ohio Supreme Court took another look at its decision a few months back in State v. Colon, in which it reversed a conviction because neither the indictment nor the jury instructions specified a mens [...
Max Consec
Posted on July 30, 2008No, that’s not the name of a character in a new Fox series this fall, it’s the new fad among some judges: handing down maximum, consecutive sentences. The 8th District’s decision last week’s in State v. Sutton might slow that impulse...
The Feds come calling
Posted on July 29, 2008Whatever kind of day you had yesterday, it was better than the one Jimmy Dimora and Frank Russo had. Here’s a simple tip: when FBI and IRS agents show up and your office and your home with U-Hauls and start removing files, it’s not a Good Thing...
Case Update
Posted on July 28, 2008Summertime, and the blogging is easy… The Washington Gang is off until October, and the Columbus Seven is apparently in cruise mode: the most notable decision out of the Ohio Supreme Court this past week was the granting of a motion to set the execution date for Gregory L...
Friday Roundup
Posted on July 25, 2008No ifs, ands, or butts. As trends go, I much — much — preferred the miniskirt to the saggy pants look, never having developed an appreciation for male underwear, other than my own. While this would seem to be a matter for the fashion police, the real police are getting involved now, too; as this [...
Change the channel, dude
Posted on July 24, 2008Just like people of our generation remember where they were the day John Kennedy was shot, and of the generation prior to that remembered where they were when Pearl Harbor was bombed, future generations will no doubt remember where they were on September 11, 2001, and on February 1, 2004...
Another look at Kennedy?
Posted on July 23, 2008In one of the last decisions of this past term, the Supreme Court put the kabosh to a state law allowing the death penalty for child rapists in Louisiana v. Kennedy (discussed here). On Monday, Louisiana filed a petition with the Court for reconsideration of the case...
The search for hard data
Posted on July 22, 2008One of the things I’ve harped upon in the past is the lack of empirical data to guide lawyers in making strategic and tactical trial decisions. If I want to find out what Derek Jeter has hit with men in scoring position and two out over the past three years, it’ll take me about twenty [...
Case Update
Posted on July 21, 2008Other than affirming a death penalty conviction, the Ohio Supreme Court didn’t do much this past week. The decision in State v. Hale involved a 2004 killing here in Cleveland, and alleged 22 propositions of law. None broke new ground, and the Court affirmed the conviction and ordered Hale’s sentence into… um, execution on November [...
Friday Roundup
Posted on July 18, 2008Some final observations on the last Supreme Court term. (Final = for now.) Diversity. Linda Greenhouse has been the New York Times Supreme Court reporter for the past 30 years. She’s an attorney herself, and whenever there was an oral argument or a decision on a major case, her stories on it would be the first [...
Penal Dysfunction?
Posted on July 17, 2008It’s not the things you don’t know that hurt you, it’s the things you know for sure that just ain’t so. — Anonymous I was surfing the web the other day and came across a post on Prof. Berman’s Sentencing Law & Policy blog, citing another pair of newspaper articles bemoaning the mass incarceration that has [...
Guns in the city
Posted on July 16, 2008I’ve spent the last week in a kiddy-rape trial, a particularly nasty one (as opposed to the kiddy-rape trials that are loads of fun). One of the few highlights of the trial was my discovery of a Cleveland detective with the least expansive view of the 4th Amendment I’ve ever seen...
Punting on punitive damages
Posted on July 15, 2008The Supreme Court’s decision last week in Barnes v. University Hosp. dealt with two widely disparate subjects, at least one of which will probably not matter to the great majority of the people in this state. It does provide an interesting look at how the court works, though, and how it deals with certain issues...
Case Update
Posted on July 14, 2008Lots of cases from Columbus this week, perhaps the biggest being Barnes v. University Hospitals of Cleveland, concerning “private” judges and punitive damages. I’ll have more on that tomorrow. Hageman v. Southwest Gen. Hospital shows how easy it is for a lawyer to get into trouble...
Friday Roundup
Posted on July 11, 2008Class Actions. Imagine how you would feel as a parent. You’ve gone out and bought your 15-year-old son Grand Theft Auto: San Andreas for his Playstation. Sure, it’s a violent game, in which he’ll get to kill and maim to his heart’s content...
One more on Boston
Posted on July 10, 2008Back in October of 2006, I criticized the 8th District for indicating in a decision that State v. Boston, the 1989 Supreme Court decision which prohibits expert testimony on whether a child abuse victim is telling the truth, doesn’t apply where the child testifies at trial...
Fighting the good fight
Posted on July 09, 2008I was over in court the other day, entering my third hour of waiting for a plea and sentencing, when the bailiff asked me if I wanted to handle a probation violation hearing. I hadn’t done one in quite a while, so I asked another lawyer, who was entering his third hour of waiting for [...
Punitive damages
Posted on July 08, 2008I ran into Rich Haber right after he won his client a $46.6 million jury award last week. Rich is a good guy and a great lawyer (like he wins the biggest award in Ohio history, and you need me to tell you that), but he readily acknowledged he’s got some ways to go before [...
Case Update
Posted on July 07, 2008The big case out of Columbus this week was Angel v. Reed, a personal injury case arising out of an automobile accident. The police report indicated the defendant was insured by Nationwide, but it turned out the company had cancelled his policy before the accident...
Supreme Court Recap
Posted on July 03, 2008One of my goals in starting this blog was to create a resource for solo practitioners and small firm lawyers who don’t have the resources the big guys have for research. In that light, today’s post is a rundown of the major US Supreme Court cases this year involving criminal law...
So what to do with Heller?
Posted on July 02, 2008As might be expected with the recognition of any new constitutional right, 2nd Amendment law in the next few years is going to be a very interesting field. Here are some of the questions posed for criminal law attorneys by the Supreme Court’s decision last Thursday in District of Columbia v...
Giles and forfeiture under Crawford
Posted on July 01, 2008Giles v. California presented a pretty simple fact situation. The defendant had shot and killed his former girlfriend. He claimed self-defense, an assertion that was complicated by the fact that she didn’t have a weapon, and had been shot six times, at least once while she was lying on the ground...
Case Update
Posted on June 30, 2008It’s Supreme Court week here at The Briefcase. Tomorrow I’ll talk about the one decision left over from last week, Giles v. California, which presented a Crawford question. On Wednesday I’ll have a recap of some of the questions facing defense attorneys handling gun charges in the aftermath of Heller...
Yin and Yang
Posted on June 27, 2008First there’s this story: The Manhattan district attorney, Robert M. Morgenthau, had a problem. The murder convictions of two men in one of his office?s big cases ? the 1990 shooting of a bouncer outside the Palladium nightclub ? had been called into question by a stream of new evidence...
Heller Update: What the Court giveth…
Posted on June 26, 2008… the Court taketh away. I was going to do a post on the Supreme Court’s Heller gun rights decision tomorrow, but I’ll do a quick post on it today, so you’ll get two posts for the price of one; the one on Kennedy v. Louisiana, the child rape case, is right below this...
Supreme Court Update I - Kennedy v. Louisiana
Posted on June 26, 2008It’s somewhat understandable that 4th Amendment jurisprudence would be, in the words of the late Chief Justice Rehnquist, “something other than a seamless web.” A simple glance at the Amendment reveals a multitude of terms which might cause mischief: what is “unreasonable”? What does “probable cause” mean? How particular does a description in a warrant [...
Update
Posted on June 25, 2008The Supreme Court came down with three fairly significant decisions today: in Kennedy v. Louisiana, they struck down the Louisiana statute making child rape subject to the death penalty. In Giles v. California, they held that a defendant doesn’t forfeit his right to confrontation under Crawford by wrongdoing against the witness (in this case, the wrongdoing was fairly [...
The fallout from Moore
Posted on June 25, 2008Back in February, I blogged about the US Supreme Court’s decision in Virginia v. Moore. (Here’s the post.) Moore had been arrested for driving under suspension, and a search of the car turned up drugs. One problem: driving under suspension wasn’t an arrestable offense under Virginia law, so the court tossed the evidence...
Gay rights
Posted on June 24, 2008Lots of news on the gay rights front. Following the decision by the California Supreme Court back in May that gays had a fundamental right to marry, they’ve been doing just that. Of course, California being the home of ballot initiatives, there’s one in November which would overturn the decision...
Case Update
Posted on June 23, 2008The US Supreme Court released seven decisions last week, the most significant, at least for the people who read this blog, being Indiana v. Edwards. The defendant in that case suffered from schizophrenia, and had no fewer than three competency hearings...
Friday Roundup
Posted on June 20, 2008Bad boys, what you gonna do? Not a good past few weeks for the six percent of the American public which still holds lawyers in high regard. There was this: A closely watched obscenity trial in Los Angeles federal court was suspended Wednesday after the judge acknowledged maintaining his own publicly accessible website featuring sexually explicit [...
State v. Gardner recap
Posted on June 19, 2008The defendant goes to a house, gets into an argument with the homeowner, breaks down the door, then assaults the homeowner, points a gun at him, and threatens to kill him. Those are the (substantially) stripped down facts in State v. Gardner, decided yesterday by the Supreme Court...
Actual innocence and mistaken identification
Posted on June 18, 2008“Our procedure has been always haunted by the ghost of the innocent man convicted.” That observation was made by Judge Learned Hand in a case back in 1923. Those of us in the criminal justice system keep that ghost at bay by reminding ourselves that the vast majority of accused criminals plead guilty, and that with [...
Another day in the life
Posted on June 17, 2008I go out to a local municipal court for the preliminary hearing on a murder case. It’s scheduled for 1:30, but it looks like several other things are scheduled for that time, too. The judge’s lunch for one; she’s heading out the door as I’m walking in...
Case Update
Posted on June 16, 2008The big decision out of Washington last week, of course, was the Court’s fourth smackdown of the Bush administration’s policy on detainees. In Hamdi v. Rumsfeld and Rasul v. Bush back in 2004, the Court held that US citizens detained on American soil had to be given a “meaningful opportunity” to challenge their detention, and [...
Friday Roundup
Posted on June 13, 2008There oughta be a law, Vol. 47. Two scourges of American law in the past several decades — the idea that any bad result should be the subject of legislative remedy, and the unfortunate tendency to name those remedies after the victims of the bad results — have combined to produce the Megan Meier Cyberbullying Prevention [...
Act in haste, repent at leisure
Posted on June 12, 2008I’ve mentioned before that the 8th District is arguably the most 4th-Amendment-friendly appellate court in the state, and that view was further vindicated last week in State v. Alexander. The police had received info from that old standby, the “confidential informant,” that Alexander was selling drugs out of his house...
Overwhelming evidence
Posted on June 11, 2008If you skim over the 8th District’s decision in State v. Fears last week, you’re probably not going to find anything out of the ordinary. The defendant had been convicted of gross sexual imposition, and he appealed, claiming that the court had erred in allowing in certain evidence, the prosecutor had committed misconduct in closing [...
Crime in the City
Posted on June 10, 2008Looks like there’ll be an uptick in the Cleveland body count. Last July 4, Terrance Hough decided that he’d had enough of his next-door neighbors setting off fireworks. So, after grabbing the .40 caliber semiautomatic he kept on a kitchen shelf, he marched next door to confront 24-year-old Jacob Feichtner...
Case Update
Posted on June 09, 2008About a year and a half ago, I detailed two 8th District decisions regarding Children & Family Services and sovereign immunity. In the first case, discussed here, C&FS had been sued for leaving an abused child in custody of her mother, who shortly thereafter killed her...
Friday Roundup
Posted on June 06, 2008Outtakes from the War on Drugs. This article from Reason magazine’s online edition features a walk-down-memory-lane refresher course for us boomers of the best (i.e., most absurd) anti-drug commercials of the past several decades, including chucklers like these: ? Pee-Wee Herman Says No to Crack?and Jail Time...
Talkin’ baseball
Posted on June 05, 2008For sports fans at least, the most significant decision out of the US Supreme Court this past week might have been a case they decided not to hear. I’m in a Strat-o-Matic baseball league. Strat, as it’s known, is a Mom-and-Pop company which started producing a baseball simulation back in the early 1960’s...
Threes strikes laws - the Ohio proposal
Posted on June 04, 2008Over the next few months, we’ll find out if Chevonne Ecclestone and Todd Torok are going to become the Polly Klaas and Richard Allen Davis of Ohio. As I discussed last week, Klaas was the little 12-year-old girl whose kidnap, rape, and murder by Davis led to the enactment of California’s three strikes law back in [...
I hate when I do that
Posted on June 03, 2008If you’re looking for a new post today, this is it. I actually did two yesterday; page down, and you’ll find them. The one right after this was supposed to appear on Wednesday; the weekly Case Update is right after that. Still getting the hang of this… Anyway, a brand, new post for tomorrow, on the [...
Case Update
Posted on June 02, 2008Our Watch on the Potomac continues: at least one Supreme Court opinion is expected tomorrow. Still on tap: the decision on the gun rights case, which I discussed here; forfeiture by wrongdoing under Crawford (here); and the FCC’s “fleeting expletives” policy (here)...
Updates on some stuff
Posted on June 02, 2008A couple of weeks ago I mentioned in my Case Update that there were no decisions from the 8th District. Somewhat surprising, considering that they usually churn out about fifteen to twenty cases a week. (According to my BFF Lexis, there were more reported cases out of the 8th District last year than the 1st [...
Friday Roundup
Posted on May 30, 2008Some light reading. If I was a bright guy, I’d probably spend some time over at the Social Science Research Network reading “An Empirical Analysis of the Confirmation Hearings of the Justices of the Rehnquist Natural Court.” Then again, maybe not...
Three Strikes Laws - The Golden State Experience
Posted on May 29, 2008Timing is everything. After the murder of his daughter by a parolee in 1992, California resident Mike Reynolds had been pushing the state legislature to adopt harsher laws on repeat offenders, without success. Then a year later little 12-year-old girl named Polly Klaas was kidnapped, raped, and murdered...
A cry for help
Posted on May 28, 2008Back in January, I did a post about the oral argument in the Ohio Supreme Court that week in the case of State v. Hairston, in which the 10th District had affirmed a 134-year sentence for a defendant convicted of three home robberies. I’d predicted that the Court would have little trouble upholding the sentence, [...
Case Update
Posted on May 27, 2008We’re still on standby for US Supreme Court decisions; if any come out today, we’ll have something on them later this week. Down in Columbus, the Ohio Seven affirmed a 134-year prison sentence for a home robber, but there was an interesting concurrence; we’ll talk about that tomorrow...
Friday Roundup
Posted on May 23, 2008Reason No. 38 why I don’t practice divorce law. There must have been some sweaty palms over on the 3rd floor of the Lakeside courthouse, home to the Cuyahoga County Domestic Relations Division, in the wake of the Ohio Supreme Court’s decision the other day in Disciplinary Counsel v...
When a win isn’t
Posted on May 22, 2008A win is a win is a win. At least, that’s what the appellate attorney in State v. Swann must have figured. The defendant had been convicted of felonious assault, and at trial he’d attempted to present evidence that another person had confessed to the shooting, under the “declaration against interest” exception to the hearsay rule [...
Catching up with the 8th
Posted on May 21, 2008A number of interesting decisions out of the 8th District this past week, vaguely reminiscent of the final scene in Carrie, where Carrie’s hand emerges from the grave to grab the arm of one of the survivors of the prom massacre. Okay, so it wasn’t anything like that...
Supreme Court decisions
Posted on May 20, 2008Several decisions by the US Supreme Court yesterday, although none that are probably of much interest to my legions of faithful readers. In one case, the Court upheld the right of states to exempt their own municipal bonds from taxation, while taxing those of other states...
Case Update
Posted on May 19, 2008As I mentioned last week, it’s that time of year, when from now until the third week of June the US Supreme Court will be rolling out opinions every Monday. There’s still some big ones to come, including the gun rights case out of DC, whether the death penalty can be imposed for child rape, [...
Friday Roundup
Posted on May 16, 2008And yo momma’s fat, too. From the transcript of a Michigan magistrate’s sentencing of a 20-year-old defendant for being a minor in possession of alcohol: “I don’t mean to be offensive, but you have two Operating While Intoxicated convictions and then you blow a ...
Sentencing Reform
Posted on May 15, 2008A year or so ago, I had an oral argument in the 8th District on a sentencing issue, specifically, what the post-Foster standards for sentencing were. In the middle of my argument, one of the judges on the panel interjected, “Wasn’t the real effect of Foster to abolish appellate review of sentences?” Last week, in State [...
Blogiversary: Your lyin’ eyes
Posted on May 14, 2008The single most frequent cause of innocent people being convicted of crimes is mistaken identification. This has been known for the better part of the past century, and it’s not getting any better. The Innocence Project examined 174 cases of wrongful conviction (DNA evidence showed the defendant was innocent), and found that almost three-quarters of [...
Morality Tale
Posted on May 13, 2008You tell me when this started to sound like a bad idea. Back in 2004, Kenneth Daniels was representing a criminal defendant, Erica French, in Hardin County, Kentucky. Erica, it turns out, had some information of value in another case. The prosecutor in that case, Robert Stevens, had approached her about testifying in the other case...
Case Update
Posted on May 12, 2008Down in DC, the Supreme Court’s concluded oral arguments for the term. Between now and the third week of June, expect a raft of decisions, probably the biggest being Heller v. DC, the gun rights case. Down in Columbus, there was another sentencing decision...
Friday Roundup
Posted on May 09, 2008The AG Blues. With Ohio Attorney General Marc Dann rebuffing demands for resignation, Ohio’s pols are contemplating impeachment as a course of action. As the Columbus Dispatch notes, legislators are going to have to read up on the process; Dann would be the first statewide Ohio elected official ever to be impeached and removed...
My expertise
Posted on May 08, 2008I offered the county a deal one time with my appointed criminal cases: I’d forego billing for the stuff I actually did, if they’d take the caps off and I got to charge them for all the time I spent sitting around waiting for something to happen...
What’s on tap in Columbus
Posted on May 07, 2008No, I’m not talking about the Marc “Drag Me Out Kicking and Screaming” Dann Deathwatch, where Vegas has pegged the over/under on his resignation at four days. I’m talking about what’s going on at the Ohio Supreme Court, where eight cases are being argued this week...
Case Update
Posted on May 05, 2008The only case out of DC this past week was the Court’s 6-3 affirmance of Indiana’s voter identification law, in Crawford v. Marion County. Scotusblog has an analysis of the case, if you’re interested. I don’t usually do anything with 6th Circuit cases, although I probably should...
consecutive sentencing
Posted on May 05, 2008There were a couple of decisions on consecutive sentencing last week. One, State v. Caraballo, was pretty straightforward. The defendant had pled guilty to two counts of rape and two counts of gross sexual imposition. He may or may not have had cases pending in Missouri and in Summit County as well — the record [...
Friday Roundup
Posted on May 02, 2008And I thought being a Methodist was complicated. The wonders of the Religious Land Use and Institutionalized Persons Act, Congress’ attempt back in 1997 to protect religious freedom from government interference, was on full display last week in a case out of the 7th Circuit...
Indictments and mens rea
Posted on May 01, 2008I spent a fair amount of time yesterday talking about the Supreme Court’s decision last week in State v. Blackburn. Then again, when do I not spend a fair amount of time talking? Today’s note will be shorter, though; the subject, State v...
Speedy Trial - Carryover prosecutions
Posted on April 30, 2008The Ohio Supreme Court handed down a couple of criminal law decisions in the past few weeks. One has relatively narrow impact; the other could have substantial significance. I’ll talk about the latest speedy trial case today, and a decision on the mens rea requirements in indictments tomorrow...
Arrests and the 4th Amendment
Posted on April 29, 2008A couple months back, I had a case where the police got a call from a gas station saying that my client was annoying customers. The police responded, and saw my client standing by a building across the street. They searched him and found some crack...
Case Update
Posted on April 28, 2008Today’s menu features Virginia v. Gray, a notable US Supreme Court decision on search and seizure, which I’ll discuss in more detail tomorrow. Closer to home, their Ohio counterparts handed down Columbus v. Kim, upholding that city’s noise ordinance against a claim of unconstitutionality, concluding that whatever one’s standards of “unreasonably loud” was, it was met [...
Friday Roundup
Posted on April 25, 2008Russ’ Excellent Adventure. As I told you earlier this week, I spent yesterday morning in Cincinnati in oral argument before the 6th Circuit Court of Appeals. Actually, it wasn’t “the morning”; it was about ten minutes. I was one of ten defendants’ counsel sharing ninety minutes of oral argument about the events of the ten-week trial of [...
Cry me a (burning) river
Posted on April 24, 2008They’s had all they can take in the City of Brotherly Love, and they’s not gonna take no more: Four veteran criminal defense lawyers sued the city and its court system yesterday, contending that fees paid to court-appointed lawyers for indigent defendants were “grossly inadequate” and that, as a result, defendants were being denied their constitutional [...
Road Warrior
Posted on April 23, 2008Travel day for yours truly; I’m off to Cincinnati for an oral argument before the 6th Circuit. I’m representing one of fourteen defendants, members of the Outlaw Motorcycle Club, who were tried back in 2004 on various RICO, drug, and gun charges...
Three from the 8th
Posted on April 22, 2008If you didn’t see the Case Update when you checked here yesterday morning, it’s posted below. I screwed up and set it to show up at 7:40 in the evening instead of 7:40 in the morning, and didn’t catch it until noon. Since most of my readers are from Cuyahoga County (the other one’s in Cincinnati), [...
Case Update
Posted on April 21, 2008Busy time for the Nine in DC. The Supreme Court affirms lethal injection as a method of executing people, which will come in handy if it decides that child rape can be punished by death; it had the argument on that last week. It also had two rulings on the armed career criminal act, which [...
Friday round-up
Posted on April 18, 2008I lied again. Turns out that my 500th post wasn’t last Thursday, like I said, but on Monday. Oh, well, one of the reasons I went to law school is they promised there wouldn’t be any math. Speaking of reasons I went to law school, I recommended my blog to another lawyer who does a good bit of [...
Vindictiveness and resentencing
Posted on April 17, 2008In 1998, Kelli Garrett was convicted of aggravated robbery and kidnapping, with various firearms specifications. The judge gave her 39 years in prison. She caught a break, though; her sentence was eventually vacated because of Foster, and back she went to be resentenced...
Death penalty and child rape
Posted on April 16, 2008As I mentioned on Monday, the US Supreme Court’s holding oral argument this week in Kennedy v. Louisiana, which presents the issue of the constitutionality of imposing the death penalty for child rape. The case would seem to be dictated by precedent: back in 1977, in Coker v...
Rance revisited
Posted on April 15, 2008Fernando Cabrales had plans for the 300 pounds of marijuana he was bringing into the state, but those plans went out the window when the two guys he’d hired to drive it to Cincinnati got busted, and wasted no time in rolling over on him. His woes compounded when he was charged with three separate [...
Case Update
Posted on April 14, 2008Nothing out of Washington this past week, but you’ll want to make space on your calendar for later today, when the Supreme Court is scheduled to hear argument in a case involving the authority of Indian tribal courts. Moving away from my typically smarmy comments for a moment, the argument in Kennedy v...
Friday roundup
Posted on April 11, 2008Make mine a double. Last October, Michigan State University student Amanda Jax decided to celebrate her 21st birthday by going drinking. They wound up carrying her back to her dorm, and discovered her dead the next morning; an autopsy revealed she had a blood-alcohol content of ...
Ivory towers; 500 Milestone
Posted on April 10, 2008Back in March of 2001, Victor Harris got into a car chase with the cops. After they’d pursued him for ten miles (and to give you an idea of the speed involved, this took only six minutes), one of the officers rammed Harris’ car, causing him to lose control; the car ran down an embankment [...
While I was gone…
Posted on April 09, 2008…on vacation, the 8th District wasn’t, and handed down several decisions of significance. A quick summary: First up is State v. Henderson, where the defendant’s charged with murder and having a weapon under disability. Under the law, the defendant can choose to bifurcate the case, and have the judge determine the disability charge...
Searching purses and fleeing the police
Posted on April 08, 2008Every now and then, you come across a case where the only opinion is a dissent. That happened in the Ohio Supreme Court’s decision last week in State v. Mercier. The case was pretty cut and dried: the police had searched the purse of an occupant of a motor vehicle, and the Court’s opinion, in [...
Searching purses and fleeing the police
Posted on April 07, 2008Every now and then, you come across a case where the only opinion is a dissent. That happened in the Ohio Supreme Court’s decision last week in State v. Mercier. The case was pretty cut and dried: the police had searched the purse of an occupant of a motor vehicle, and the Court’s opinion, in [...
Case Update
Posted on April 07, 2008A reminder to be a bit careful about loss of consortium claims in this week’s case of Disciplinary Counsel v. Itta. Itta had taken over a PI case from another lawyer in the firm, and filed suit, including a loss of consortium claim because the notes indicated the client was married...
Friday round-up
Posted on April 04, 2008Got an appellate brief that’s due today — I tell you, if it weren’t for the last minute, I’d never get anything done — so we’ll just skim off the cream from the stuff that’s clogging up the Internet right now...
Acquitted conduct
Posted on April 03, 2008Michael Hurn was in deep trouble. He was on trial for possession with intent to distribute 150 grams of powder cocaine, and 450 grams of crack cocaine base. As anyone who’s familiar with Federal sentencing knows, the powder cocaine was the least of his worries; a conviction on that would have meant a sentence of between [...
Lesser included offenses
Posted on April 02, 2008The facts in State v. Smith are pretty clear. Smith and a friend were shoplifting, with the help of the friend’s children, and when the security guard intervened and things started going south, Smith got a bit porky, knocking over a table and biting the security guard before she was finally subdued...
Lesser included offenses
Posted on April 01, 2008The facts in State v. Smith are pretty clear. Smith and a friend were shoplifting, with the help of the friend’s children, and when the security guard intervened and things started going south, Smith got a bit porky, knocking over a table and biting the security guard before she was finally subdued...
International treaties, and fools for clients
Posted on April 01, 2008According to the Canadian Coalition Against the Death Penalty, Jose Medellin, who’s sitting on death row on Texas, could use a penpal. At least, he could have back then; he was 24 when he wrote that, and he’s 33 now. As you can see, Jose is a little circumspect about exactly how he wound up being [...
Case Update - Tanned, Rested & Ready Edition
Posted on March 31, 2008On Friday morning, I got on an airplane in Phoenix, where it was 79 degrees. I got off in Cleveland, where it was 34. ‘Nuff said about my state of mind. If this keeps up, next week’s Case Update is going to be titled the “Cabin Fever Edition...
Friday wrap-up
Posted on March 21, 2008So much for that. Last Friday, I blogged about the 8th District’s decision in State v. Casalicchio, in which the court decided that the Supreme Court got it wrong in State v. Bezak when it held that a sentence imposed without properly advising the defendant of post-release controls was void...
Of Crime and Race
Posted on March 20, 2008I found interesting the recent firestorm of criticism over the comments of Barack Obama’s pastor, the Reverend Jeremiah Wright. For those who just emerged from a week-long stay in a sensory deprivation tank, YouTube, the Internet, and the talking heads on the cable news shows have regaled us with excerpts from Reverend Wright’s sermons, in [...
Apres la Revolution
Posted on March 19, 2008Last year, the US Court of Appeals for the District of Columbia threw out the District’s gun control law, which essentially banned the possession of handguns. Yesterday, the Supreme Court heard oral argument in the case, and two things are relatively clear: First, the Court is going to confirm that the 2nd Amendment grants an [...
Case Update
Posted on March 18, 2008The big case out of the Supreme Court last week was somewhat timely, in light of the Eliot Spitzer saga. Jackson v. Columbus dealt with an investigation in to the city’s police chief concerning allegations involving gambling, prostitution, and favoritism...
The power of the pen
Posted on March 17, 2008Well, I guess I told them, huh? Within mere hours after I’d blogged last week about the New Haven 8th-grader who’d been suspended for buying a bag of Skittles at school, the district, per this story, came to its senses, reinstated him, and cleared his record...
Legal writing 101
Posted on March 14, 2008Actually, an advanced course. LawProse.org is a web site run by Bryan Garner and dedicated to the better legal writing, and on getting you to pay Bryan Garner money to tell you how to do better legal writing. Nothing wrong with that. One of the interesting features of the site, is the Educational Videos, which [...
Mailing it in
Posted on March 13, 2008Got work to do, so let’s throw out some stuff I ran across: Well, no, it doesn’t always stay in Vegas. With a hat tip to Overlawyered comes this story of Arelia Taveras, an up-and-coming New York lawyer — she’d worked on the 9/11 lawsuits — whose career crashed upon revelations that she’d stolen about $100,000 [...
Upcoming Supreme Court Arguments
Posted on March 12, 2008The Columbus Seven heard oral arguments yesterday and today on nine cases, several of which could be significant. (I mean, if they weren’t, the Supreme Court wouldn’t hear them, right?) A rundown: Howard v. Miami Township Fire Division. (Links are to court of appeals decision...
Arbitration clauses: sorting through the clutter
Posted on March 11, 2008What a difference a quarter-century makes. A few months back, I wrote about Fortune v. Castle Nursing, the 9th District decision upholding an arbitration provision in a nursing home contract. The 70-year-old resident in that case had filed an action against the nursing home for negligence in allowing her to fall, but the court decided she hadn’t submitted sufficient [...
Case Update, Cabin Fever Edition
Posted on March 10, 2008It’s Sunday morning, our house is buried in 18 inches of snow, and it’s a race as to what’s going to get to the sidestreet we live on first: a snowplow, or summer. To top it off, a pipe under our bathroom sink broke, and we’ve got as much chance of getting a plumber here [...
Friday’s grab-bag
Posted on March 07, 2008Goofiness abounds. From the Overlawyered comes the story of two private school teachers in Seattle who filed a complaint against the school for hostile workplace environment. Whatever the merits of their other claims in that regard, they were substantially diluted by this one: Among the plaintiffs’ complaints was [the school’s] invitation to conservative commentator Dinesh D’Souza to [...
Car searches, Round 2
Posted on March 06, 2008As Justice Frankfurter put it in a concurring opinion back in 1961, “the course of true law pertaining to searches and seizures has not — to put it mildly — run smooth.” That’s been particularly true of vehicle searches...
A defense point of view
Posted on March 05, 2008The 2nd District came down with an interesting, and somewhat gutsy, decision the other day in State v. Russell. Whether it was the right one is pretty much a matter of perspective. Actually, this was the second time the case had been up before the appellate court...
Forfeiture by wrongdoing and temporal limits on searches
Posted on March 04, 2008Sometimes when doing the Case Update I come across decisions which require, as they say in the law biz, “more extended treatment.” Come to think of it, they probably say that in the plastic surgery biz, too. Anyway, a little bit more on some recent decisions: Confrontation and forfeiture...
Case Update
Posted on March 03, 2008Nothing going on in Columbus, but the US Supreme Court this week granted cert in two criminal cases. Pulido v. Crones is a 9th Circuit habeas decision, and might afford the Court an opportunity to decide whether a defective jury instruction is a “structural error,” which of course always necessitates reversal, or whether it can be [...
Stare decisis
Posted on February 29, 2008Should the Ohio Supreme Court overrule its decision setting forth the standards by which the Ohio Supreme Court should determine whether to overrule its decisions? That was the subtext of a decision by the Court last week in a workers compensation case, that could have major ramifications in criminal law...
My day off
Posted on February 28, 2008Didn’t feel like doing much blogging today, so instead I surfed the web for legal stories, and this is what I came up with: The War on Liquor? I’ve blogged on numerous occasions about how the War on Drugs has largely involved a War on the Fourth Amendment as well, as demonstrated most recently by the [...
Talk dirty to me
Posted on February 27, 2008A couple weeks back, Dick Feagler, the Cleveland Plain Dealer’s resident scold, penned his latest installment on why America is going to hell in a handbasket. For those unfamiliar with his ouevre, Feagler’s columns typically cast a covetous eye back to those days of yore when men were men and women weren’t, and then focus despairingly on [...
We have a winner…
Posted on February 26, 2008A mere two days after the Oscars, we can safely hand out the Award for the Worst Fourth Amendment Decision of the Year. The envelope, please… Ladies and gentlemen, let’s give it up for the 9th District’s decision in State v. White. The protagonists of our story are Steven Barrett and Cynthia White, whom the [...
Case Update
Posted on February 25, 2008An interesting decision from the US Supreme Court this past week on retroactivity in criminal cases. In Danforth v. Minnesota, the Court held that states are free to determine whether to grant retroactivity to US Supreme Court decisions, regardless of how the Court itself treats the issue...
Stuff that cheeses me off
Posted on February 22, 2008I couldn’t get into the blog all day yesterday — but why I am telling you this, because you couldn’t, either — and so I come home last night to find an email from the hosting service telling me that they were “having issues” with their “upstream DNS Servers” and that my account “has probably [...
Still more on sex offender residency restrictions
Posted on February 21, 2008I’ve written numerous times about the goofiness of sex offender residency restrictions (like I did here), in which legislatures and city councils enact ever-more restrictive laws on where sex offenders can live, despite a dearth of evidence that the laws do any good, and some evidence they’re actually harmful...
Uncounseled misdemeanor convictions, Vol. 38; Speedy trial, Vol. 49
Posted on February 20, 2008Back in 2004, the legislature passed a new drunk-driving statute with a 20-year ”lookback” provision: if a defendant has five or more OVI convictions in the past 20 years, the next one becomes a fourth-degree felony (punishable, oddly enough, by up to five years in prison)...
With a little help from my friends… Court costs & Intervention in Lieu
Posted on February 19, 2008Every now and then, an attorney will give me a tip about a case that he thinks would be good for the blog. The other day, for example, one of the habitués over at the Justice Center told me about State v. Stanovich, a decision out of the 3rd District last year on treatment in lieu of [...
Case Update
Posted on February 18, 2008Nothing of significance in the US Supreme Court this week. Down in Columbus, in addition to State v. Sarkozy, which I discussed on Friday, the Ohio Supreme Court decided Pruszynski v. Reeves, a decision significantly clarifying the law on prejudgment interest...
Pleas and Post-Release Controls
Posted on February 15, 2008The law on post-release controls vis-a-vis sentencing has become pretty settled, especially following the Supreme Court’s decision last summer in State v. Bezak: the trial judge has to advise the defendant orally of PRC at the time of sentencing, and also include that in the journal entry...
Girls just wanna have fun
Posted on February 14, 2008You know that old Woody Allen line about how 90% of life is just showing up? That’s particularly true if the place you’re supposed to show up is the Probation Department. I had the sentencing this morning of a client we’ll call Sharon, who’d been convicted back in July of running a scam on some [...
After the Revolution
Posted on February 13, 2008In January of 2005, the US Supreme Court revolutionized Federal sentencing law with its decision in US v. Booker, which held that the Federal Sentencing Guidelines were no longer mandatory, but merely advisory. Thirteen months later, in State v. Foster, the Ohio Supreme Court revolutionized Ohio sentencing law by holding that there wasn’t any...
8th District Roundup - Massacre on Lakeside
Posted on February 12, 2008A summary of the criminal cases handed down by the Cuyahoga County Court of Appeals last week. (Trust me, OBAR’s headnotes will not read the same way: State v. Hamilton: Defendant files motion to vacate plea two years after sentencing, primarily because he finds out he?s being deported...
Case Update
Posted on February 11, 2008No news out of Washington, except that Dick “Darth” Cheney filed his own brief in the gun rights case pending in the Supreme Court, differing with the administration’s position. Well, that’s not quite accurate, even though the boys over at ScotusBlog phrase it that way...
“Jamie” gets paper
Posted on February 08, 2008A month ago, I blogged about the the two days I spent in trial defending “Jamie,” a 46-year-old transvestite accused of possessing a crackpipe, the nadir of what most observers had already concluded was an otherwise undistinguished legal career...
This and that…
Posted on February 07, 2008McCain’s Judges. One of the critical factors in anticipating future Supreme Court trends anymore is the demographics of the Court. When the next president is inaugurated, four of them will be over 70; two members of the liberal wing, John Paul Stevens and Ruth Bader Ginsberg, who will turn 89 and 76, respectively, within a few months after [...
Magic Bus
Posted on February 06, 2008A few months back, Clevelanders were shocked to learn that the county’s Regional Transit Authority had won the award for being the best public transportation system in North America. This was no mean feat, considering that the city’s previous awards had been limited to Place Where You’re Most Likely to Be Shot for No Reason, or [...
News from the (drug) war front
Posted on February 05, 2008I’m not big on the idea of drug legalization. I don’t buy into claims like this one, that we could get $31 billion in additional revenue simply by legalizing marijuana and taxing it. I don’t buy into the idea that decriminalizing drugs will make them safer, or that it will get rid of the criminal [...
Case Update
Posted on February 04, 2008The big news about the US Supreme Court came out of Oregon this past week. I’d previously blogged about the Phillip Morris case, in which an Oregon jury had nailed the company with $80 million in punitive damages in a smoker’s suit, and about how the Supreme Court had reversed the verdict...
Illegal arrests
Posted on February 01, 2008The cops see your client standing on a street corner drinking a bottle of beer. They arrest him for having an open container, and a search reveals several rocks of crack in his pocket. You file a motion to suppress, pointing out at the hearing that open container is a minor misdemeanor, which, except in [...
Crawford and forfeiture
Posted on January 31, 2008Yesterday, I talked about Crawford v. Washington, the US Supreme Court decision back in 2004 which held that if a statement is “testimonial,” it can’t be admitted, even if it falls within one of exceptions to the hearsay rule. I also mentioned one of the exceptions to Crawford itself: even if a statement is testimonial, [...
Getting Crawford right
Posted on January 30, 2008Just about every criminal defense lawyer knows that Crawford v. Washington, the 2004 Supreme Court decision holding that the defendant’s confrontation rights barred admission of a ”testimonial” statement, was one of the most unexpected and sweeping changes in criminal law in the past decade or so...
Some stuff for the blogroll
Posted on January 29, 2008As I mentioned a couple weeks back, Cleveland Mayor Frank “Sleepy-Time” Jackson has announced a campaign to get guns off the streets of the city, acknowledging that this could result in more shootouts between the police and private citizens...
Case Update
Posted on January 28, 2008Nothing happening in Columbus. I’ll have a post on some key cases in the US Supreme Court on Thursday. Meanwhile, on to the courts of appeals: Criminal. Good case on protective sweeps: defendant was holed up in house, held police at bay for three hours before surrendering, cops do a sweep after that, 2nd District reverses [...
DC and Columbus - Oral Arguments
Posted on January 25, 2008Just a short note today. I spent most of the week working on a petition for certiorari in the Supreme Court, trying desperately to keep my efforts from flagging because of the near-certainty that my chances of success are two, slim and none, and Slim rode out of town a while back...
Gone surfing
Posted on January 24, 2008This is going to be one of those days when I just take a look around the Web and see if there’s anything interesting in the legal field. Sometimes what I find is depressing, like this commentary from the San Francisco Chronicle, highlighted over at Sentencing Law & Policy: To many in the United States, the country of Somalia [...
Privileges and Immunities
Posted on January 23, 2008As I’ve mentioned before, doing this blog is somewhat of a humbling experience, because I’m constantly reminded of how much I don’t know. I got another reminder of that last week, when one of the lawyers here walks into my office and tells me that he’s got a case where the prosecution wants to call his [...
Laches and child support
Posted on January 22, 2008The joys of fatherhood are somewhat tempered when you first find out about it when the kid’s headed off to her senior prom and the mother is asking you to shell out seventeen years of back child support. Laches is one of those defenses that you may remember from law school and have never seen since, but it [...
Case Update
Posted on January 21, 2008Probably the biggest news out of the US Supreme Court this past week was its refusal to hear an appeal by Cleveland’s former Boy Mayor, Dennis Kucinich. Kucinich was asking the court to order the Texas Democratic party to put him on the primary ballot, despite his refusal to sign a declaration that he would support the [...
Annie got her gun
Posted on January 18, 2008One of the easiest predictions for the new year is that we will see the first substantive Supreme Court case ever on the 2nd Amendment. As I’ve mentioned before, the Court has accepted review in District of Columbia v. Heller, the decision by the DC Court of Appeals which tossed out the District’s gun control [...
Throwing away the key
Posted on January 17, 2008There’s not much question that Marquis Hairston was a bad guy. Over a four-week period during the fall of 2005, he and some pals conducted three home invasion in the Germantown section of Columbus, terrorizing the inhabitants at gunpoint. His spree started just seven days after he’d been released from prison for another crime...
Odds and Ends
Posted on January 16, 2008Catching up with some stuff… Let’s hope Judge Kline doesn’t read this. Last week I did a post on the Ohio Supreme Court’s decision in State v. Crager, where it upheld the admission of DNA testimony by an analyst, other than the one who’d performed the actual tests, against a Crawford challenge...
Morality tale
Posted on January 15, 2008Almost a year ago, I highlighted the case of Burdge v. Supervalu Holdings. Burdge had shopped at one of the defendant’s stores, paid by credit card, and received a receipt which — the horror, the horror — contained the card’s expiration date, in violation of Ohio’s “credit card truncation” statute...
Case Update
Posted on January 14, 2008Speaking of a updates, I’ll be doing a one-hour seminar on Thursday night for the Cuyahoga Criminal Defense Lawyers Association, on major case developments in criminal law over the past year. It’s at 6:00 PM at John Q’s, so drop by if you’d like...
Going after guns
Posted on January 11, 2008Last year, 134 people were murdered in the City of Cleveland. That was the highest number in thirteen years. So yesterday, Mayor Frank “Rip Van Winkle” Jackson woke up long enough to announce a new policy to combat that. As this article notes, the centerpiece to the policy is “to unleash aggressive police officers for [...
A Day in the Life
Posted on January 10, 2008If you happen to need advice on how to prepare a jury in voir dire for the fact that you’re client’s a transvestite, I’m the go-to guy there. I spent the last two days trying a crackpipe case involving a 46-year-old transvestite — we’ll call her Jamie — with twenty-seven prior convictions, almost all of them for [...
Speedy trial with a vengeance
Posted on January 09, 2008Portage County Judge John Plough made news last year by holding Brian Jones, a public defender, in contempt for refusing to go forward with a trial in a misdemeanor assault case. Jones felt he had a pretty good reason for refusing: he’d been appointed to represent the defendant only the day before the trial...
Anticipatory search warrants, and some puzzlers from the 8th
Posted on January 08, 2008Every now and then doing this blog makes me feel dumb. I like to think of myself as fairly knowledgeable about search and seizure law, but last week I’m preparing the case update and I run across State v. Blevins, a case out of the 3rd District on anticipatory search warrants...
Case Update - Party Edition
Posted on January 07, 2008Apparently, opinion-writing took second place to some hard partying in the courthouses across the state. The Columbus Gang handed down an affirmance in a death penalty case, and issued one other case announcement, and there’s fairly slim pickings in the court of appeals, too...
Scientific tests and Crawford
Posted on January 04, 2008The state sends blood samples out to the Bureau of Criminal Investigation – Ohio’s counterpart to CSI – for DNA analysis. The tests determine that the victim’s blood is on the defendant’s shirt, and based largely on those results, the defendant is convicted of aggravated murder...
Fourth time’s the charm
Posted on January 03, 2008When the Ohio legislature enacted its latest batch of tort reforms in 2005, it must have had in mind Einstein’s definition of insanity: repeatedly performing the same act with the expectation of different results. Thirty years before, and then again in 1987 and 1997, the General Assembly had passed a variety of supposed “reforms,” only [...
Case Update - Survivor Edition
Posted on January 02, 2008You’d think that if I’m going to take a week-long break from blogging, the courts of Ohio would have the common decency to take a vacation from handing down opinions, too. Not so much; my buddy Lexis advises me that no fewer than 438 decisions have come down since my last case update...
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