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  • What's Up in the 8th - Catching Up at The Briefcase by Russ Bensing
    attorney by dispensing with one on the third day of trial he announces that he wants to represent himself This should ve been easy there s loads of case law which says that a defendant s request for self representation must be timely and where the defendant waits until trial let alone the third day of one to assert his right the judge has the discretion to refuse it Not so here the judge grants it but that leads to a reversal Although the trial judge told Hardman about the possibility of standby counsel he didn t ask whether he wanted one and told Hardman that standby counsel wouldn t assist him in complying with the applicable legal requirements rules of evidence and rules of procedure which is precisely what standby counsel does After granting Hardman the right to represent himself the judge excused his lawyer who left What probably had more to do with the result was that the judge wouldn t grant Hardman a continuance to review the discovery he d just been given instead requiring him to continue with the cross examination of a key witness Oh one more thing we learn that where the defendant fails to make a Rule 29 motion it doesn t really matter as far as asserting a claim for insufficient evidence Failure to make a motion doesn t waive the claim it simply requires it to be reviewed for plain error And if the defendant is convicted on legally insufficient evidence that s going to meet the manifest injustice requirement for plain error every time Oh and one more thing that only applies in a jury trial In a bench trial the not guilty plea preserves the argument as to insufficiency The law on joinder is very bad for defendants and it doesn t get any better in State v Echols Echols was charged with two rapes one in 1994 and the other five years later The judge denied the motion for separate trials finding no prejudice other than human nature and that the jury would be presumed to follow his instructions to treat them separately The panel agrees concluding that joinder was unnecessary because the evidence of each crime was simple and direct I m sure it was given that there wouldn t be any overlap in events occurring five years apart But jury confusion isn t the issue prejudice is Human nature was indeed the key here if you don t believe the fact that Echols was on trial for two rapes made it more likely the jury would convict him of both you don t understand human nature The case law generally holds that joinder isn t required where the crimes are intertwined for example several robberies conducted over a short period of time or where evidence of one crime would be admissible under EvidR 404 B in the trial of the other Beyond that severance should be allowed especially where the crimes are similar Joinder is preferred

    Original URL path: http://briefcase8.com/2016/01/whats-up-in-the-8th---catching-up.html (2016-04-27)
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  • Case Update at The Briefcase by Russ Bensing
    a Federal habeas is one year from the date Johnson was decided June 26 2015 Nothing happening in Columbus either so we ll talk about what might happen A couple of death penalty cases are on the docket for oral argument this month and State v Montgomery might prove the more interesting Not the direct appeal on Thanksgiving Day in 2010 Montgomery found out that his girlfriend Tia Hendricks had had an affair with another man and so not only slit her throat but the throats of her 10 year old daughter and 2 year old son for good measure None of this alleged stuff Montgomery pled guilty to all the charges and specifications and was sentenced to death by a three judge panel The only significant argument in the appeal is that Montgomery s plea was invalid because he was taking psychotropic medication Where it gets interesting though is that in the meantime the 10th District has ruled that Montgomery was entitled to a hearing on his petition for post conviction relief The appellate court apparently believing that it had been teleported to Texas held in a split decision that Hendricks infidelity might have provided reasonable provocation for a charge down to manslaughter and that counsel might have been ineffective for failing to raise the issue and instead advising Montgomery to plead guilty Cheesing the State off even more was the fact that the provocation issue was raised by the court sua sponte in its decision without briefing or argument The State has appealed that too and I m betting that a summary reversal of the 10th District s decision is in the works as well as an affirmance in the direct appeal The defendant in State v Belton also pled out no contest this time to the indictment and specifications and also had the death penalty imposed by a three judge panel That provides the central point in Belton s appeal he argues that he should have been entitled to a jury determination of punishment His more ambitious claim is that HB 86 by including as a principle of sentencing that the court should use the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources implicitly repealed Ohio s death penalty because of the exorbitant cost of capital cases Ambitious is one way of putting it But the defense might have a point Why the State is going to go to the trouble and expense of trying to execute Belton isn t entirely clear He robbed a convenient store and killed the clerk He says the gun went off by accident but that s somewhat undercut by the surveillance video He doesn t seem to merit the criminal background though that would earn him a date with the needle more than anyone else who robs a store and shoots the clerk an event which is sadly not uncommon Somewhere in the twenty propositions of law contained in

    Original URL path: http://briefcase8.com/2016/01/case-update-127.html (2016-04-27)
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  • Jonesing at The Briefcase by Russ Bensing
    The judge decides that prejudices him and dismisses the case for undue pre indictment delay The 8th District affirms No I m not repeating myself If you click the links you ll see that they re totally different cases The first is an en banc decision this past summer The other is a decision the 8th released just last week And yes it s the same Demetrius Jones There are some differences between the cases In Jones I here s what the police did Drove past the victim s house twice knocked on the door and didn t get an answer Here s what the police didn t do Anything else Even though they had Jones name and address they not only didn t go out to the place they never made any effort to contact Jones or his mother In Jones II they were more industrious they did visit the house and interviewed Jones and his mother taking statements from both denying that any rape had occurred The case was even presented to the grand jury which no billed it by that time the alleged victim had moved to Maryland and was no longer cooperating with the police The biggest difference though is that Jones I is pending in the Ohio Supreme Court I m handling Jones I and I wasn t happy to see Jones II I know the State s going to appeal the latter if only to get across to the court that there s more to Demetrius than they might think It s sort of the appellate version of EvidR 404 B At the very least they ll get across the idea that someone who thinks the place to score with chicks is his mother s bed might have some issues And it s not like I was looking at a stroll on the beach in any event The issue in Jones is what the defendant has to show in order to demonstrate that he s been prejudiced by the delay The State s claiming and the courts have generally held that a defendant has to show actual non speculative prejudice In the State s view that means I d have to show what the mother would have testified to I think that s pretty ridiculous but one of the reasons for that is we have a sneaking suspicion as to what the mother would have testified to that Demetrius didn t do it The problem though is that the Supreme Court likes to come up with rules of law that have broad application and a rule that if the mother dies that s proof of prejudicial pre indictment delay isn t going to cut it And what is going to cut it in the wake of the Supreme Court s decision last year in State v Adams isn t clear Adams was indicted in 2007 for a murder committed in 1985 and was convicted and sentenced to death The death penalty was vacated see

    Original URL path: http://briefcase8.com/2016/01/jonesing.html (2016-04-27)
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  • Don't think of a pink elephant at The Briefcase by Russ Bensing
    fact those same appellate courts will reject an argument that counsel was ineffective for not requesting a curative instruction Why Because not requesting a curative instruction might be a tactical gambit in the belief that such an instruction will only remind the jury of what they re supposed to forget We all know that such instructions are a waste of time Don t we Maybe not it turns out at least according to a law review article by a law professor at Berkeley one of the things I ran across during my wanderings in the desert these last six weeks It s a preliminary draft and the author says not to cite quote or circulate without permission I checked and one of my jobs isn t to sit down and write a letter asking for permission to do something nor is it in my character so we ll just talk about it instead One of the things we learn is that the empirical evidence on the effect of curative instructions are decidedly mixed There are some serious methodological and bias flaws in a number of studies that have been done but even discounting that several show that juries do take such instructions seriously After all there s a difference between telling someone to forget something and telling him to disregard it At the least there s a decent chance that if a juror brings up the tainted evidence in deliberations somebody else will say But the judge said we re not supposed to consider that On the other hand that s for curative instructions which tell the jury to disregard the evidence There are also limiting instructions which tell the jury to use the evidence only in a certain way For example if a defendant with prior convictions testifies the jury will be told to consider those convictions only in assessing his credibility not for gauging his propensity to commit a crime If prior acts testimony is introduced the judge will instruct the jury to consider this only in proving absence of mistake identity motive or one of the other exceptions to propensity under EvidR 404 B Bad news on this the empirical evidence indicates that these types of instructions are almost always ineffectual and sometimes counterproductive That s because they re largely incoherent The 404 B instruction for example essentially tells the jury not to consider the evidence in deciding whether the defendant is the type of person who would commit the crime but to consider it in deciding whether he committed the crime The prior conviction instruction is little better basically the jury is told that they can use the prior convictions to determine whether the defendant is telling the truth when he denied he committed the crime but not to determine whether he committed the crime So what to do One thing to keep in mind is that the studies reveal that jurors were much more likely to discount evidence if given a reason for doing so

    Original URL path: http://briefcase8.com/2016/01/dont-think-of-a-pink-elephant.html (2016-04-27)
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  • Just make the damned findings at The Briefcase by Russ Bensing
    to protect the public from future crime But there was nary a word about the third factor whether consecutive sentences are disproportionate and nothing that could reasonably be construed as such so back it went Josue Vasquez wasn t nearly as lucky He too was charged for separate instances of criminal conduct in this case burglary and robbery in the one felonious assault in the other Despite the fact that these were apparently Vazquez s first cases the judge imposed consecutive sentences totaling 12 years finding that the harm was so great that it justified consecutive sentences and that they were necessary to protect the public What about disproportionality Nary a word about that here either No matter According to Judge Sean Gallagher the author of the unanimous opinion affirming the sentence Taken together these findings reflect the court s reasoning and its implicit finding that consecutive sentences were not disproportionate to the seriousness of the offender s conduct and to the danger the offender poses to the public even in the absence of the court expressly using the term disproportionate This is a shortened version of Gallagher s dissent three months back in State v Santiago where he argued that if no single term adequately reflects the seriousness of the offender s conduct then logically the consecutive service of prison sentences is not disproportionate to the offender s conduct There s some merit to that argument but I ve got a couple of problems with it First you can apply that to other findings if the judge decides that consecutive sentences are necessary to punish the offender and protect the public he s implicitly found that consecutive sentences aren t disproportionate to the seriousness of the offender s conduct or the danger he poses to the public Or the other way around In fact since all of the findings focus on the seriousness of the conduct and the danger the offender poses to the public you can make a decent argument that any one finding implicitly means the other two were found Second Vazquez and to a lesser extent Blalog mark another waypoint in the court s headlong retreat from its en banc decision last year in State v Nia which held that the 8th would require strict adherence to the findings The reason given for Nia s abandonment is the Supreme Court s subsequent decision in State v Bonnell and its holding that a word for word recitation of the language of the statute on consecutive sentences is not required But that had been the law before Bonnell courts routinely held that no talismanic language was necessary to make the findings In reading the 8th s post Bonnell decisions one would be forgiven for forgetting that in Bonnell the court vacated his sentence because the judge had failed to make the finding of you guessed it disproportionality It s hard to get too worked up over this Vazquez s crimes were particularly nasty one was a home invasion

    Original URL path: http://briefcase8.com/2016/01/just-make-the-damned-findings.html (2016-04-27)
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  • Technical difficulties at The Briefcase by Russ Bensing
    Oct Nov Dec 2010 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec 2009 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec 2008 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec 2007 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec 2006 May Jun Jul Aug Sep Oct Nov Dec Legal Blogs Sentencing Law and Policy The Volokh Conspiracy CrimLaw Grits for Breakfast Concurring Opinions Simple Justice A Public Defender Defending People CrimProf Blog How Appealing Lowering the Bar Crime and Consequences Drug WarRant Snitching Blog Overlawyered Balkinization Legal Blog Watch SCOTUSblog Gamso For The Defense Technical difficulties January 5 2016 by Russ Bensing Dropbox is acting up Today s post will appear tomorrow tomorrow s post will appear Thursday and you get the idea Permalink Print Search Search Recent Entries April 19 2016 What s Up in the 8th New sentencing cases and a really crazy drunk defendant April 18 2016 On the road again Time to pull out the travel mix CD One more radar lover gone April 14 2016 Money changes everything Cyndi Lauper was right especially when you re charged with a crime April 13 2016 Ruminations of an old lawyer Gray hair has its benefits April 12 2016 What s Up in the 8th Reversals of a denial of a motion to continue and a of a motion to withdraw a plea Plus a new and probably unintended look at the failure to comply statute April 11 2016 Case Update SCOTUS hands down a summary reversal of the 6th Circuit in a habeas case and appellate decisions on protective sweeps and excited utterances April 7 2016 What I learned in Columbus Part II On June 27 2013 the Cuyahoga County Grand

    Original URL path: http://briefcase8.com/2016/01/technical-difficulties.html (2016-04-27)
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  • Case Update - While I was gone at The Briefcase by Russ Bensing
    District affirmed her conviction nonetheless on the theory that when one hides evidence of an unmistakable crime she commits tampering because they have constructive knowledge of an impending investigation But constructive knowledge means only knowledge that one using reasonable care or diligence should have which is largely a negligence standard knowingly under the statute requires that a person subjectively believes that there is a high probability that a certain fact exists In short mere constructive knowledge doesn t cut it That sounds broader than it might be While Barry was pending the 4th District narrowed Barry so that it applied only in situations where the defendant committed a crime like murder arson or rape where the victim was likely to complain to the police or investigation is almost certain to occur because of the death or severe injury to the victim We ll see how that shakes out in the future In the courts of appeals It s not uncommon at trial for a state s witness to back off the statements he s made prior to trial implicating the defendant and it s not uncommon for the prosecutor to counter this by impeaching the witness with those very statements The 2nd District s decision in State v Johnson imposes some limits on that tactic Devon Garrett was to be the State s star witness in Johnson s trial for allegedly serving as the getaway driver in a home invasion that turned into a felony murder Instead despite giving a statement incriminating Johnson that very morning Garrett took the stand and professed to not even know Johnson The judge declared Garrett a court s witness and the prosecutor proceeded to ask him over 80 questions about his prior statements Too much said the panel this went far beyond impeachment to the point where the prosecutor was attempting to get his theory of the case across What s it take to establish judicial bias You can start by giving the defendant who s pled to involuntary manslaughter in the death of his child the maximum eleven years and you finish up with a radio interview two days before the sentencing where you misstate the evidence and say that the defendant s character he d served in the Marines and was wounded in Afghanistan played no part in sentencing you would have maxed out anyone who was responsible for the death of a child The 1st District decides that s enough in State v Hamberg An interesting aspect of Hamberg is its procedural posture The defendant had been convicted of aggravated murder and filed a motion for new trial Problem Hamberg had pled guilty and you can t ask for a new trial if there wasn t an old one So the appellate court treated it as a petition for post conviction relief Although there s a Supreme Court case allowing that the dissent ventures into Scalian territory in lambasting the majority for doing so And in turn is rebuffed by the

    Original URL path: http://briefcase8.com/2016/01/case-update---while-i-was-gone.html (2016-04-27)
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  • Case Update at The Briefcase by Russ Bensing
    both went to prison McCafferty for 14 months and Terry for 63 McCafferty had lied to FBI agents while Terry had actually rigged a case denying a motion for summary judgment in a mortgage dispute at the direction of his political benefactor Frank Russo McCafferty wound up with an indefinite suspension but Terry wasn t as lucky he was disbarred Aaron Brockler s case was also resolved A few years ago Brockler an assistant prosecutor was handling a murder case and learned from listening to the defendant s jail calls that he was having trouble with an alibi witnesse who was upset that he had a child with another woman Taisha Brockler created a fake Facebook page using Taisha s name and then used that to communicate with the witness apparently attempting to fan the flames of jealousy Brockler was fired and last week the Supreme Court handed down a stayed six month suspension His career was saved by the narrowest of margins the three dissenters would have indefinitely suspended him I handled the appeal in the murder case and one of the arguments obviously was prosecutorial misconduct The problem was that the judge a fairly defense friendly one couldn t find any harm from Brockler s actions and damned if I could either the witness Brockler tried to sabotage testified for the defendant anyway I had the feeling then though and still do that if it was a defense attorney setting up a fake Facebook page in attempt to affect the testimony of a witness we wouldn t be talking about disciplinary action we d be talking about an indictment In the courts of appeals If any further evidence was needed as to the mindlessly rote formality of imposing consecutive sentences it s provided by this portion of the sentencing transcript quoted in the 6th District s decision in State v Tea THE COURT The sentence that you ll be serving is 12 months on each of the felony nonsupport cases They are run consecutive and the consecutive finding I I do need to have something in my hand for that Jay I have to make special findings because those sentences are being run consecutive Will you get that THE BAILIFF Is that in your book THE COURT Yeah it s in my book Apparently the judge needs a new book the sentence is vacated and the case remanded because he didn t make the finding that consecutive sentences weren t disproportionate The limitations of what can happen on remand are shown in the 9th District s decision in State v Henderson Henderson was convicted of felonious assault and aggravated robbery with the judge imposing seven years on the robbery and eight years on the assault and running them consecutively The case got reversed for failure to make the necessary findings and at resentencing the judge shaved a year off of the sentence on each offense Henderson appealed again and not only did the 9th District affirm it remanded

    Original URL path: http://briefcase8.com/2016/02/case-update-132.html (2016-04-27)
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