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  • Friday Roundup at The Briefcase by Russ Bensing
    the Supreme Court decided Planned Parenthood v Casey the decision which affirmed Roe v Wade but said that there could be reasonable restrictions on abortion as long as it did not unduly burden the right to one Sandra Day O Connor was the only woman on the Court She was a conservative but she signed on with the majority There were three women on the bench on Wednesday morning to hear the oral argument in Whole Woman s Health v Hellerstedt The case involves Texas new law outlining restrictions on abortion The three women weren t conservatives And they spent most of the hour of argument beating up the Texas Solicitor General Dahlia Lithwick one of my favorite Supreme Court reporters has a nice piece on it in Slate if you re so inclined Johnny gets his gun Speaking of Supreme Court arguments Clarence Thomas asked a question in one the other day and I won a decision in the 8th District yesterday Don t pay attention to the wag who suggests that those events happen with the same frequency But Thomas question and my case were on the same subject matter so let s talk about it First in the It s All About Me category I was representing a guy who d been convicted of trafficking in marijuana a 4th degree felony back in 1987 He d had nothing more than a traffic ticket since He d gone to school been a chef at the Cleveland Clinic for the past five years and wanted to get a job as a security guard One problem he needs to be able to carry a gun for the job and his 1987 conviction disqualifies him from owning one So he applied for relief from that disability The State opposed it because it doesn t think anybody should have guns Neither did the judge a former prosecutor After asking questions at the hearing like whether my client would be able to get a job that didn t require him to get a gun she wrote an opinion which denied the request without giving any reason for doing so It was an easy win just a few months earlier the court handed down State v Dozanti reversing a denial on the same grounds So what s that have to do with Thomas I d made a constitutional argument in my case the Supreme Court held in DC v Heller and McDonald v Chicago that I have an individual constitutional right to own a gun The State cannot deny me that right unless they can show a compelling state interest in doing so A 27 year old conviction of a 4th degree felony drug case is not a compelling state interest Thomas comment came in Voisine v US a case involving the Federal law which bars people who are convicted of domestic violence from owning a gun Thomas questions were to the point Can you give me another area of law where a misdemeanor

    Original URL path: http://briefcase8.com/2016/03/friday-roundup-20.html (2016-04-27)
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  • SCOTUS enters the real world at The Briefcase by Russ Bensing
    as 15 of them might be there s nothing false about five kilos of cocaine sitting in the trunk of a car The Court has been whittling down the exclusionary rule for years first with US v Leon the 1984 decision which created a good faith exception for searches conducted with a warrant A few years back in Herring v US the Court extended that rule to an arrest based on a warrant that turned out to be invalid In Davis v Arizona the Court applied the good faith exception to a search conducted pursuant to a Supreme Court decision which was subsequently overruled And in Herring and Michigan v Hudson the majority opinions spent no little time on screeds bemoaning the heavy societal cost of excluding evidence because the constable blundered Strieff presents the next step in that argument Essentially the state contends that the good faith exception should be applied to all searches including warrantless ones only where police engage in flagrant misconduct should the evidence be suppressed This isn t a novel idea In fact it s become the life s work of the Ohio Attorney General s office their enthusiasm for the proposition leading them several years ago to argue that Ohio shouldn t have an exclusionary rule because it was rejected in a 1936 Ohio Supreme Court decision There are certainly a number of legal arguments one can advance pro and con To be sure whether suppressing highly relevant evidence deters police misconduct in obtaining it is open to some debate especially since the line where police conduct crosses over into a violation of the 4th Amendment is a decidedly blurry one Then again how the vagaries of search and seizure jurisprudence are going to be resolved by adding another variable into the mix not only whether the police decision on whether probable cause or reasonable suspicion existed but whether their incorrect decision that it did was flagrant isn t at all clear But what was especially interesting about the argument in Strieff is that it wasn t conducted in stratosphere of abstract legal principles That happens too often especially in the Supreme Court Whren v US the 1996 decision which held that the ulterior motives of a police officer conducting a traffic stop were irrelevant was completely divorced from the reality of how it would be applied with officers driving around minority neighborhoods looking for the most minor traffic infraction to justify pulling a car over and finding a way to search it for drugs or guns But not here A large part of that was the steps Ferguson had taken which resulted in the vast majority of the population having arrest warrants out for them It was a revenue measure police vigorously enforced even minor traffic violations and if the defendant did not appear in court or was late in paying his fine a warrant was issued for his arrest leading to the collection of even more fines and costs While Ferguson had

    Original URL path: http://briefcase8.com/2016/03/scotus-enters-the-real-world.html (2016-04-27)
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  • What's Up in the 8th at The Briefcase by Russ Bensing
    examination when the prosecutor produced a photograph from Garcia s Facebook page showing him holding a gun and flashing a gang sign Helpfully Garcia posted under the name Pistol Papa Pete His claim that this was improper is easily rejected and provides a lesson for lawyers when you open that door don t be surprised at what comes ambling in State v Durham represents about the sixth time in the past two years that the 8th District has reduced an aggravated murder conviction to simple murder because it found insufficient evidence of prior calculation and design Here are the relevant facts distilled from the 35 pages devoted to that in the court s 55 page opus Durham and the victim Coleman were having a feud over some property Coleman called Durham to let him know that he was coming to the property and intended to tell Durham he had to leave it When Coleman arrived he and Durham walked behind the building and Durham pulled out a gun he was carrying and shot Coleman Enjoy it while it lasts the Supreme Court has taken in about three cases on this and I m not too sanguine about the ultimate outcome In State v Jackson Jackson is convicted of aggravated robbery but the jury hangs on two kidnapping counts Since those would probably merge anyway the State foregoes a retrial on them and dismisses those counts Jackson takes it up on appeal only to have the appeal dismissed Why Because the State never asked that the charges be dismissed with prejudice and since the dismissal without prejudice the charges can be brought again and there s no final appealable order I think this is wrong for a couple of reasons First it misconstrues the concept of a final judgment As the 5th District pointed out in in State v Manns a nolle by the prosecution terminates the proceedings True the State could subsequently pursue the charges but that would require a new indictment and a new case This one is over and thus provides a final appealable order To be sure the rule in civil cases is that a dismissal without prejudice can t be appealed but this brings us to the second problem with Jackson If a plaintiff has his civil case dismissed without prejudice he has a simple remedy refile the case But what does Jackson do now What s the mechanism by which he forces the State back into court to dismiss the charges with prejudice so he can appeal In the meantime does this mean that when the prosecution dismisses charges as part of a plea bargain without specifying that it s with prejudice the defendant is foreclosed from appealing You could certainly make the argument that the charges can t be brought again because doing so would be barred by the plea bargain but at least under Jackson that doesn t necessarily affect the finality of the order The 8th District used to be very good

    Original URL path: http://briefcase8.com/2016/03/whats-up-in-the-8th-145.html (2016-04-27)
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  • Not crazy after all these years at The Briefcase by Russ Bensing
    the facts of the case that was a pretty easy call and it s questionable whether the decision will have much broader application There are two basic situations where a defendant can be compelled to submit to a psychiatric examination The first is where he raises the issue of insanity obviously in those circumstances it would be unfair to allow the defense to present experts on the issue without allowing the State to have its experts examine the defendant The second is where incompetency is raised Note that this can be raised by the court or the prosecution not just the defendant Can the statements he makes be used by the prosecution against him The lead case on this is the Supreme Court s 1981 decision in Estelle v Smith In that case the trial court ordered Smith who was on trial for capital murder to undergo a psychiatric examination to determine his competency The doctor Texas famed Dr Death found him competent but then took the stand for the state and told the jury that Smith was a very severe sociopath and would be forever a danger to society Smith was accordingly sentenced to death but the Supreme Court reversed holding that Smith should have been advised that the statements could be used against him and thus violated his right against self incrimination On the other hand six years later in Buchanan v Kentucky the Court held that when the defendant presents a claim of a mental issue in that case extreme emotional disturbance the state can rebut it with evidence of their expert s evaluation Then of course there s the Ohio statute in this case RC 2945 371 J That section prohibits the use of any statement made by a defendant in an evaluation for competency or sanity from being used on the issue of guilt and prohibits any evidence of the evaluation if the defendant didn t initiate it or attempt to introduce any psychiatric evidence Harris entry of the NGRI plea would seem to allow the evidence and its admission certainly would have been upheld if he d pursued that defense but he didn t The criminal rules specify how an NGRI plea has to be made it has to be in writing but don t specify how it can be withdrawn The court decides that Harris had implicitly withdrawn the defense by subsequently filing a notice of alibi kinda hard to argue that I was crazy when I killed the guy but I was someplace else when he got killed and explicitly withdrew the defense at trial by telling the judge that he was doing so and wouldn t present any psychological testimony on that issue or anything else Interestingly at trial Harris primary argument was self defense which had he kept the NGRI plea would have presented an interesting potpourri of defenses I wasn t there but if I was and shot the guy it was because he was threatening me or if

    Original URL path: http://briefcase8.com/2015/01/not-crazy-after-all-these-years.html (2016-04-27)
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  • Dog sniffs - again! at The Briefcase by Russ Bensing
    been happening around here would you It takes twenty minutes to ask you this and get your driver s license information and just before the officer gives you the ticket the drug dog arrives Same question That s the question the Supreme Court has to answer in Rodriguez v US From the looks and sounds of the oral argument last week it may already have Rodriguez s lawyer was up first and was immediately peppered with questions about what exactly constitutes a traffic stop The lawyer quickly dug himself into a hole telling the justices that the formal rule he was proposing was that once the cop gave the driver a ticket the traffic stop was over You can t possible mean that said Scalia and questioning by Alito and Ginsburg provided the reason for Scalia s astonishment the lawyer s proposal would allow the officer to sequence the events so that he did everything he wanted to dog sniff whatever before handing over the ticket As Alito put it only the uninformed and incompetent officers wouldn t do that But if Rodriguez s attorney had problems defining a rule the assistant solicitor general ran into the problem of arguing against the rule Breyer posed If you re going to do a stop you can t reasonably extend or pass the time it takes to deal with a ticket it cannot be prolonged more than the time reasonably required to complete the mission which happens to be giving a traffic ticket Or we could say it cannot last longer than is necessary to effectuate the purpose of the stop The problem for the assistant SG was that as Breyer noted this was pretty much the precise rule that the Court had already laid down in two prior dog sniff cases back in the 80 s Illinois v Caballes and US v Place And it s one that the courts have been consistently applying In fact it s a little surprising that the case made it to the Supreme Court Rodriguez and his passenger Pollman had been stopped for drifting onto the shoulder of the road Rodriguez s car had an overwhelming odor of air freshener and the officer found Pollman was unusually nervous especially when he was questioned There s ample case law that a police officer can prolong the stop if events occurring after the stop create reasonable suspicion that something more is afoot The government relied on that in Rodriguez in its brief to the Supreme Court but that argument seems like a loser given what happened in the trial court the judge found that there was no reasonable suspicion but upheld the search anyway in reliance on prior 8th Circuit decisions which had held that a de minimis delay didn t raise any 4th Amendment problems The 8th Circuit affirmed on that basis so that would seem to preclude further examination of whether there was reasonable suspicion to prolong the stop The 8th Circuit s concept of

    Original URL path: http://briefcase8.com/2015/01/dog-sniffs---again.html (2016-04-27)
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  • What's Up in the 8th at The Briefcase by Russ Bensing
    to show the victim s losses with reasonable certainty as required for restitution The court had taken a stronger stance against the flight instruction last year in State v Johnson holding that more than mere departure from the scene was required to warrant the instruction We learn in State v Williams that mere departure might be enough at least when nobody else in the crowd of about 50 people at the scene departs And the defendant in State v Westfall finds it s a tough sell to claim that you didn t have the intent to kill because you stopped choking the victim when she lost consciousness Back in October I wrote about the 8th s decision in State v Strong which represented the rare reversal for a Batson violation The prosecutor in that case had used a peremptory on a black juror and when challenged gave as his reason that the juror had a thousand yard stare I have concerns he will be able to pay attention Although the judge indicated she hadn t observed anything along those lines and the prosecutor hadn t even questioned the juror she excused him The 8th reversed Last week s decision was on reconsideration Usually when a court vacates a previous opinion and issues a new one on reconsideration you have to do some digging to find out what changed Not here the State s motion was prompted by the fact that the juror at issue was an alternate and the person who replaced him was never called to deliberate No matter it turns out even discrimination against an alternate so taints the process that it requires reversal State v Davis involves a reversal and remand for resentencing because the judge didn t make the findings necessary to impose consecutive sentences The interesting aspect of the case is the partial dissent by Judge Stewart which argues that when the judge fails to make the findings the sentence automatically defaults to concurrent sentences with no remand necessary She cites language in Bonnell which supports that view although I m not sure it s as ironclad as all that Still if you re appealing a consecutive sentence this is an issue you need to raise It used to be that you couldn t have any other offenses to get a conviction expunged but a few years ago the legislature expanded expungement to include those who had one felony and one misdemeanor conviction or two misdemeanor convictions as long as they weren t for the same offense J S seeks to have his felony conviction expunged but the State argues that he has three misdemeanors possession of marijuana possession of drug paraphernalia notice a theme emerging and disorderly conduct The marijuana charge was a minor misdemeanor and that doesn t count and neither would the disorderly conduct if he d been convicted under the state ordinance But he was convicted under the Cleveland Heights ordinance which makes it a fourth degree misdemeanor The ability of

    Original URL path: http://briefcase8.com/2015/01/whats-up-in-the-8th-104.html (2016-04-27)
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  • Case Update at The Briefcase by Russ Bensing
    violation and placed under arrest for marijuana possession He invokes his Miranda rights for further questioning but when the officer asks if he has any other contraband on him and explains the consequences of conveying drugs into a jail Brown relents and admits he has heroin hidden in his underwear So the Miranda violation gets those drugs suppressed right Wrong the 2nd District agrees with the trial judge in applying the inevitable discovery doctrine the drugs would ve been found anyway during the booking search at the jail A nice search case out of the 9th District in State v Love Police stopped Love s car to arrest his passenger who had outstanding warrants and then began to question Love about whether he used drugs and had any in the car For reasons known only to him and his god Love invited them to search the car and sure enough they found drugs The 9th tosses the search though finding that the cops had no reason to further detain Love to ask him questions and for that reason his consent wasn t freely given In State v Frymire the 12th District holds that to be convicted of complicity in an offense involving a deadly weapon the jury has to find that the defendant had foreknowledge that a weapon would be used The panel relies on the Supreme Court s decision in Rosemond v US discussed here and the 8th District s decision in State v Shabazz discussed here Shabazz is in front of the Ohio Supreme Court so we ll see how that goes Another blood from stone experiment is rejected by the 6th District in State v Jennings where the trial court had ordered the defendant to pay costs of confinement and appointed counsel fees The panel found this to be error noting that the Jennings hadn t graduated from high school and had never held gainful employment And then there was the little matter of him not being eligible for release from prison for forty years A rare grant of an application to reopen an appeal comes in the 8th District s decision in State v Eaton where the court holds that the judge should have inquired whether the offenses of aggravated robbery and involuntary manslaughter should have merged that trial counsel was ineffective for not raising the issue and that appellate counsel who d filed an Anders brief was ineffective for not raising the issue of trial counsel s ineffectiveness This comes just a week after the 8th had decided in State v Velez discussed here that the two offenses didn t merge in that case Those aren t inconsistent results though whether the offenses are allied depends upon the facts Meanwhile what s up with all the Anders briefs The 12th District handed down fourteen decisions last week Eight of them were resolved on Anders briefs One of the cases I reviewed for the update this week was the 6th District s decision in State v

    Original URL path: http://briefcase8.com/2015/01/case-update-96.html (2016-04-27)
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  • Forfeiture reform (?) at The Briefcase by Russ Bensing
    had the money the Feds did That s where equitable sharing comes in the Feds will return about 80 of the money seized in that fashion to the state and local agencies So the City of Mayfield Heights police department which couldn t have taken a dime of Harris money under state law got about 12 000 of it Last week Attorney General Eric Holder put an end to that Maybe It s difficult to understate the significance of the two policies to state and local police Last year police agencies received 600 million through equitable sharing arrangements And keep in mind that money goes into the police department s budget money seized by forfeiture under Ohio law goes into the state s general fund The Camden County Ga sheriff used money he got from the program to buy a 90 000 sports car and a 79 000 boat for the department The Miami police raked in 19 3 million over just three years which according to the Miami Herald they used for parties trips and fancy equipment such as a 35 foot boat powered by three Mercury outboards and a mobile command truck equipped with satellite and flat screen TVs It s also difficult to overstate the abuses of the system many of which are chronicled in Policing for Profit a 2010 report by the Institute for Justice Or you can look at what happened to Russ Caswell the owner of a motel in Lowell Mass The Federal government sought forfeiture of the hotel worth 1 5 million because 15 drug related crimes had occurred on the property in the past 14 years During which time the judge who heard the case noted the motel had rented out 196 000 rooms After a four day trial the judge ruled against the government faulting the government for engaging in gross exaggeration and misstatements of fact Of course by that time Caswell had spent 100 000 of his own money on attorney fees The Institute of Justice represented him for free after that So what did Holder do He announced that henceforth Federal agencies would no longer accept adoptive forfeitures of cash cars and other property There are limited exceptions including firearms ammunition explosives and property associated with child pornography But drugs isn t one of the exceptions But there may be another exception which isn t nearly so limited it doesn t apply to any joint enterprise between the Feds and state or local authorities like joint task forces or seizures by state and local authorities that are the result of federal state investigations or that are coordinated with the federal authorities as part of ongoing federal investigation Critics claim that this threatens to swallow the rule There are hundreds of multijurisdictional task forces that involve the Feds and Eapen Thampy the executive director of Americans for Forfeiture reform noted that virtually every drug task force I know of has a federal liaison on call Radley Balko of Reason on

    Original URL path: http://briefcase8.com/2015/01/forfeiture-reform.html (2016-04-27)
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