Ohio

90% of life

Posted on December 02, 2009
Mark looked up from the folder of the case that he was set to try against me that morning.  “New look?”  he asked as I sat down at the table.  I hadn’t shaved since I came back from Vegas five weeks ago, although I got a nice little trimmer (with seven attachments, $19...

What’s up in the 8th

Posted on December 01, 2009
There are competing theories among appellate lawyers, with one group arguing that you should assign every possible error, and the other that you should only argue those that you have a reasonable chance of winning.  There are pros and cons of each approach, and, as usual, the best answer is probably somewhere in the middle...

Case Update

Posted on November 30, 2009
As you’re reading this, there might be an opinion coming down from the US Supreme Court; only twice since 1968 has the court started a term without issuing a decision before December.   The Court has issued three per curiam reversals, one of which we’ll talk about on Wednesday...

Second chances

Posted on November 24, 2009
Back on December 17, 1999, 76-year-old Dorothy Brown was discovered dead in her apartment in Shaker Heights.  She’d sustained a fractured skull as well as about two dozen other injuries, some defensive.  Although she was nude from the waist down, there were no signs of a sexual assault...

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Holiday Schedule

Posted on November 23, 2009
If you’re looking for the Case Update, it’s right below this post.  Since I’m going to be off, like everybody else, on Thursday and Friday (no Briefcase), I’m going to hold off the normal discussion of 8th District cases until next Tuesday...

Case Update

Posted on November 23, 2009
While there are several big cases waiting down the road in DC, this week did not see any of them; the biggest was the Court’s decision not to review a challenge by an American Indian group to the Washington Redskins mascot.   Down in Columbus, four decisions of consequence (to me, anyway), though none of them earthshaking...

Friday Roundup

Posted on November 20, 2009
Guess 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, 2009
Last 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 [...

Go Directly to Jail

Posted on September 30, 2009
The 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, 2009
One 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, 2009
Okay, 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, 2009
The “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, 2009
That 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, 2009
To 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, 2009
The 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, 2009
Demon 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, 2009
It’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, 2009
Romell 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, 2009
They 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, 2009
Some 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, 2009
People 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, 2009
SORNA 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, 2009
The 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, 2009
With 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, 2009
In 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, 2009
In 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, 2009
Kids 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, 2009
I 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, 2009
Case 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, 2009
This 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...

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