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  • What's Up in the 8th at The Briefcase by Russ Bensing
    didn t order the transcript Normally that would be bad thing for Bradford because in the absence of the transcript the court will presume the regularity of the proceedings below that the judge said what she was supposed to and the JE can be fixed with a nunc pro tunc entry The problem Bradford has since been released from prison and once that happens you can t fix PRC The sexual predator classification was part of Megan s Law It s the functional equivalent of Tier III under the Adam Walsh Act lifetime registration every ninety days but the Supreme Court held in State v Bodyke that the AWA couldn t be applied retroactively for crimes occurring before its passage in July of 2007 it didn t become effective until six months later but I m milking this July meme for all it s worth So if the State wants the lifetime registration the court has to conduct the sexual predator hearing where the State has to provide clear and convincing evidence that the defendant is likely to reoffend And that s what State v Malone is all about The offenses Malone committed were nasty ones indeed three separate rapes at knifepoint The only thing Malone has going for him on the reoffend score is that he s 68 years old and has emphysema That s assuming having to use an oxygen tank to breathe can be viewed as a positive But the standard for review of the sexual predator classification uses the civil manifest weight standard which is that the judge s decision is upheld so long as there is some competent credible evidence to support it The fact that Malone committed a sexual offense in 2001 at age 55 and was arrested on a parole violation in connection with a gross sexual imposition charge at age 63 is enough to clear that hurdle It doesn t help that Malone also has convictions for murder felonious assault and armed robbery The whole thing s pretty much academic since Malone s sentenced to 10 to 25 years in prison for this Oddly enough despite fact that the 8th District held six months ago that pre SB 2 sentences can t be imposed where sentencing occurs after the effective date of HB 86 and has consistently held that in subsequent cases that issue isn t raised on appeal We jump about fifteen years ahead in South Euclid v Fayne where the prosecution takes a minimalist view of the recently adopted rules of open discovery In response to a request from the defendant for relevant documents names and addresses of witnesses and any exculpatory evidence four days before trial the prosecutor faxes over the police reports and essentially says You figure it out The trial judge deems that an insufficient response and dismisses the case without prejudice Appellate courts love to develop lists of factors which trial judges are supposed to consider in making their rulings and so it is here Once

    Original URL path: http://briefcase8.com/2015/04/whats-up-in-the-8th-115.html (2016-04-27)
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  • Case Update at The Briefcase by Russ Bensing
    virtually all the states hold or whether the defendant must also show that had he gone to trial he would have been acquitted as the Indiana Supreme Court persists in holding Think somebody s pissed No decisions from the Ohio Supreme Court and no oral arguments until May Not much on the criminal docket then either One case of parochial interest is the disciplinary matter involving former Cuyahoga County judge Stephen Terry who did five years in Federal prison for denying summary judgment motions in two foreclosure cases at the behest of county political majordomo Frank Russo Terry s contesting the recommendation of disbarment arguing that an indefinite suspension would be appropriate It doesn t help that when the FBI tapped Russo s phone it caught Terry calling him with the greeting Hey it s your favorite judge In the courts of appeals We all know that hearsay is something somebody said out of court but is it also something somebody didn t say That s the situation in State v Flannery where Flannery appeals his conviction for aggravated menacing arguing that the judge erred in not allowing him to elicit testimony from a witness that he didn t hear Flannery making a threat The judge concluded that this was hearsay but the 1st District reverses noting that the witness wasn t asked about a statement but rather that the question called for testimony about not hearing something The differences between a criminal trial and a probation revocation hearing are the subject of the 5th District s decision in State v Boykins And differences abound The minimum requirements are a Written notice of the claimed violations b disclosure of evidence against him or her c the opportunity to be heard in person and to present witnesses and documentary evidence d the right to confront and cross examine adverse witnesses e a neutral and detached hearing body and f a written statement by the fact finders as to the evidence relied on and reasons for revocation But while the State has to prove guilt beyond a reasonable doubt it only has to present substantial evidence less than a preponderance to prove a violation And the defendant doesn t have a right to allocution One more thing as the 4th District notes in State v Johnson the rules of evidence don t apply so the court can allow otherwise inadmissible evidence The police arrive at the door of an apartment to investigate a complaint of drug activity When the door is opened they can smell burning marijuana Can they enter without a warrant That s the subject of the 2nd District s decision in State v Striks and it begins with the Supreme Court s decision in Welsh v Wisconsin where the Court found that exigent circumstances didn t exist for the pursuit of the defendant into his house for suspicion of driving while intoxicated holding that the exigent circumstances exception in the context of a home entry should rarely be sanctioned

    Original URL path: http://briefcase8.com/2015/04/case-update-105.html (2016-04-27)
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  • The perils of snitching at The Briefcase by Russ Bensing
    he d been kicked off the CJA list because he wouldn t allow his clients to give information make proffers to the Feds Got a killer brief due tomorrow so no post See you on Monday My initial reaction was that he should ve been kicked off the list Most Federal cases anymore have the following characteristics a your client is charged with a drug offense b the Feds have wiretaps surveillance videos undercover agents and evidence out the wazoo against your client c the penalties your client is facing are Draconian especially if he s got prior felonies and especially prior drug felonies a third drug case can make him a career offender where he s looking a 25 year plus sentence and d the only chance to get out from under all that is for your client to give the Feds information on his co conspirators especially ones higher up the food chain than he is Removing d from your palette leaves you with the other three and that can wind up as a horrible painting Then again maybe he has a point There are certain risks to giving information against drug dealers as Rachel Hoffman and Andrew Sadek might tell you If they were still alive Sadek was a North Dakota college student His body was found a year ago in a river with a bullet in his head Investigators haven t decided whether Sadek was killed or committed suicide if the latter he apparently came up with a posthumous method of disposing of the gun because one wasn t found A more likely scenario emerged when it came out that Sadek had agreed to work as a confidential informant for the police after being caught selling marijuana While there s not a definitive answer as to how Sadek met his end that s not the situation with Rachel Hoffman Back in 2008 she was 23 years old just a year out of Florida State and was on probation for possessing an ounce of marijuana when the cops found another five ounces in her apartment The cops told her that because of the probation violation she was looking at prison time and pressured her to work as an informant in a sting operation involving 1 500 ecstasy pills two ounces of cocaine and a handgun In a little over her head do you think The narcotics detectives arranged for the buy at a specific location but the two suspects changed it and Rachel s handlers lost track of her Her body was recovered two days later she d been killed by the gun she was supposed to buy I ve said before that if a law is named after you chances are you came to a very bad end and that s true here a year after her death Rachel s Law went into effect in Florida imposing a number of requirements on police use of informants Rachel s killers were caught convicted and sentenced to life

    Original URL path: http://briefcase8.com/2015/04/the-perils-of-snitching.html (2016-04-27)
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  • What's Up in the 8th at The Briefcase by Russ Bensing
    burden of proof of provocation and that comprises two steps the first objective and the second subjective The defendant has to show that the victim did some act which a reasonable person would regard as sufficient to incite rage Which sort of translates to what it would take to make a reasonable person act unreasonably But stick with me here Then the defendant has to show that he was indeed acting in a fit of rage or passion The opinion sort of flubs this last one noting that Balish did not report feeling threatened That s relevant to self defense not provocation Still this again shows the perils of trying the case to a judge If this were a jury trial and the judge refused to instruct the jury on the lesser included offense you d at least have an argument But here you re essentially contending that the judge s decision not to convict on the lesser offense was against the manifest weight of the evidence That s a long uphill slog in any event and given the facts of this case you re not going to get anywhere near the top We get a tour of burglary law in State v Bell Bell breaks into the home of a dead woman and steals a bunch of stuff and complains on appeal that the house wasn t an occupied structure nor was any person present or likely to be present the latter of which elevates it to a second degree felony The definition of when a structure is an occupied one is rather elastic it need only be maintained as a permanent or temporary dwelling even if it s temporarily unoccupied The second issue whether a person would be present doesn t depend upon the expectation of the burglar but on whether it s objectively likely Likely though has nothing to do with probability as Bell makes clear The homeowner s daughter stopped in from time to time to check on things at first daily and then every week or so According to the panel if the evidence demonstrates that the caretaker in possession of the former occupant s key has the right of access to the home regularly then there will be sufficient evidence that a person is likely to be present Oddly that s a more relaxed standard than if the homeowner is alive at least if he s working There are a number of 8th District decisions the most recent of which is State v Richardson which holds that when a person is at work unless he occasionally goes home during working hours he s not likely to be present for the burglary I ve had my share of dead end appeals so I m feeling the pain of the appellate lawyer in State v Rivera Rivera took her child into an emergency room for treatment the child had been beaten by Rivera that day suffering a perforated bowel a lacerated spleen and a fractured rib

    Original URL path: http://briefcase8.com/2015/04/whats-up-in-the-8th-114.html (2016-04-27)
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  • Case Update at The Briefcase by Russ Bensing
    be directed to the case the day before Obergefell v Hodges on whether bans on gay marriage are unconstitutional There s not a criminal case for oral argument on the Ohio Supreme Court s calendar until May 20 so let s go take a look at the decisions in the courts of appeals What happens to a State s peremptory challenge if the defense objects on Batson grounds and the court upholds the challenge Not something you have to spend a lot of time contemplating since those challenges are granted so rarely but it does come up in State v Moore The State used its final peremptory challenge on a black juror the defense objected and the court sustained it So does the State lose its final challenge or can it exercise it on another juror The 2nd District takes a look at cases from other jurisdictions there s nothing in Ohio on this and decides that the best course of action is to punt it s up to the discretion of the trial judge State v Jones provides an interesting twist on mandatory probation Jones was charged with leaving the scene of an accident which is normally a misdemeanor but was elevated to a fifth degree felony because the other person in the accident was seriously injured Originally under HB 86 a person charged with a fourth or fifth degree felony has to be given probation unless she s been previously convicted of a felony or a misdemeanor offense of violence within the past two years That was broadened a year later to allow the judge to impose a prison sentence if he found that the crime caused physical harm and that s what the judge did here he gave Jones a 12 month sentence because of the injuries suffered by the victim The 1st District reverses though finding that the harm was caused in the accident not in Jones fleeing from the scene In Toledo v Jenkins the victim of a domestic violence complaint doesn t appear for trial but the court permits the police officers to testify as to what the victim told them when they responded to her 911 calls as well as allowing the introduction of the calls themselves The latter obviously comes in as the primary purpose of the call was to summon help to an emergency The 6th District also upholds admission of the woman s statements to the police once they arrived also under the theory that the police were responding to an emergency at that point What emergency The opinion notes that the police didn t know the suspect s whereabouts but so what To be sure that was largely the basis for the Supreme Court s allowing the admission of the dying victim s statements in Michigan v Bryant discussed here and here but there the police encountered a situation where a gunman was at large which posed a threat to the public Here the only threat the defendant posed

    Original URL path: http://briefcase8.com/2015/04/case-update-104.html (2016-04-27)
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  • Exoneration at The Briefcase by Russ Bensing
    might be expected from a PC opinion the case wasn t even argued there s no big question of law to be resolved here but it s an interesting read nonetheless Hinton was on trial for capital murder and one of the key issues was ballistics evidence according to the police the bullets they recovered from the scene of the robbery murders Hinton was charged with matched the gun found in a search of Hinton s house There was no other evidence linking Hinton to the crime The issue in the case was ineffective assistance of counsel the defense attorney thought there was a 500 cap for experts in death penalty cases in Alabama The judge gave him 1 000 because there were two cases and invited the defense to file a motion asking for more The attorney didn t do that and unknown to both him and the judge the cap had been eliminated the year before and the expenses could be reimbursed if they were reasonably incurred and approved in advance by the trial judge So what was the damage Believing he was limited to 1 000 the only expert the lawyer could find willing to work at that price was Andrew Payne The attorney had some trepidation about it he d found only one other lawyer who knew the Payne and the lawyer didn t recommend him The trepidation was warranted on cross examination the prosecutor got Payne to acknowledge that he d only testified twice in the past eight years with one of the cases involving a shotgun not a handgun as had been used in the robberies Hinton was charged with Payne admitted that he d had difficulty operating the microscope at the forensic laboratory to the point where he d had to ask for help from one of the state s experts The coup de grace was administered by the closing colloquy Q Mr Payne do you have some problem with your vision A Why yes Q How many eyes do you have A One The Court found that the expert was badly discredited ya think and that if the lawyer had known of the raised cap he could ve gotten a better one The case was sent back for retrial Yesterday we have this An Alabama inmate who spent nearly 30 years on death row will go free Friday after prosecutors told a judge there is not enough evidence to link him to the 1985 murders he was convicted of committing Jefferson County Circuit Judge Laura Petro on Thursday dismissed the case against Anthony Ray Hinton The district attorney s office in a Wednesday court filing said that forensic experts couldn t determine if six crime scene bullets which were the crux of the evidence against Hinton came from a gun investigators took from his home Something to keep in mind the next time someone starts whining about how it takes so long to execute people Permalink Print Search Search Recent Entries April

    Original URL path: http://briefcase8.com/2015/04/exoneration.html (2016-04-27)
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  • Friday Roundup at The Briefcase by Russ Bensing
    holding a steady job more challenging you don t have to worry about spending your end days coughing up chunks of your lung The largest study ever done on the subject which included people who d smoked more than 22 000 joints over their lifetime found that there was no association between Mary Jane and getting lung cancer In fact not only is there no indication of correlation between the two but smoking an occasional doobie might actually have a protective effect Just think toking away so you can engage in those pointless hours long debates about which was the worst rock group of the 1980 s will also protect you from the Big C So here s the head of the National Institutes of Health which runs the Biotech Information database speaking at a dinner last week We don t know a lot about the things we wish we did with respect to marijuana I ve been asked repeatedly does regular marijuana smoking because you inhale deeply increase your risk of lung cancer We don t know Nobody s done that study My cup runneth over After weeks of trying to make a blog post out of yet another appellate decision on post release control or consecutive sentencing I hit the jackpot a SCOTUS decision on complicity law and four decisions from the Ohio Supreme Court on the child enticement statute pre sentence reports modification of lifetime driving suspensions and wrongful imprisonment There was one other SCOTUS decision that came beneath the radar the per curiam opinion in Hinton v Alabama As might be expected from a PC opinion the case wasn t even argued there s no big question of law to be resolved here but it s an interesting read nonetheless Hinton was on trial for capital murder and one of the key issues was ballistics evidence according to the police the bullets they recovered from the scene of the robbery murders Hinton was charged with matched the gun found in a search of Hinton s house There was no other evidence linking Hinton to the crime The issue in the case was ineffective assistance of counsel the defense attorney thought there was a 500 cap for experts in death penalty cases in Alabama The judge gave him 1 000 because there were two cases and invited the defense to file a motion asking for more The attorney didn t do that and unknown to both him and the judge the cap had been eliminated the year before and the expenses could be reimbursed if they were reasonably incurred and approved in advance by the trial judge So what was the damage Believing he was limited to 1 000 the only expert the lawyer could find willing to work at that price was Andrew Payne The attorney had some trepidation about it he d found only one other lawyer who knew the Payne and the lawyer didn t recommend him The trepidation was warranted on cross examination

    Original URL path: http://briefcase8.com/2014/03/friday-roundup-9.html (2016-04-27)
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  • Thursday Roundup at The Briefcase by Russ Bensing
    will create the death drugs because the pharmaceutical companies won t sell them to us anymore Once that s done Ohio can get back to reducing its inventory of condemned prisoners something it s proved efficient at doing Only one state north of the Mason Dixon line Missouri has executed more people than Ohio since capital punishment was reinstated in 1977 and in the last five years the comparative tally is Ohio 20 California zip Makes you proud Ask and ye shall be answered I never prepare any notes for oral argument I develop a theme a general idea of the arguments I need to make and then use the time to respond to the judge s questions trying to draw them back to the theme That works pretty well Except sometimes like the oral argument I had yesterday they don t ask any questions At one point one judge cleared her throat and I looked eagerly toward her hoping she d ask me something to interrupt my soliloquy No luck but it turned out they had a lot of questions for the prosecutor Good thing or bad thing Good thing I decided after coming across this post on the SCOTUSnow blog As opposed to SCOTUSblog Not the same thing The post refers to two law review articles in which the authors promote the idea that the party that receives the most questions from the Justices during oral argument is more likely to lose So should I don the party hat Probably not so quickly the author of the post applied that methodology to the 2014 term and so far he s correctly predicted 14 of the 26 cases one better than he could have gotten from a coin flip Trash pulls gone wrong A couple months back I wrote about the Supreme Court s decision in State v Jones in which the court held that evidence found in a trash pull combined with other information corroborating the presence of drugs in a house was sufficient probable cause for the issuance of a search warrant Most interesting about the case was the Attorney General s insistence as an amicus to the prosecutor s office that corroborating evidence wasn t necessary the trash pull itself was sufficient Thankfully the court found it unnecessary to even consider that argument Thankfully The Cambridge Maryland police had nothing more than an anonymous tip and two plastic bags found in a trash pull each containing marijuana residue to get a search warrant and have a SWAT team raid the apartment of Andrew Cornish at 4 30 AM on May 6 2005 Cornish emerged from his bedroom carrying a sheathed knife and the police shot him dead The cops found a small amount of marijuana in the apartment Cornish s father sued the cops and seven years later a jury awarded him 250 000 Last month the Fourth Circuit reversed by a 2 1 vote Radley Balko does a terrific job of pointing out how absurd

    Original URL path: http://briefcase8.com/2015/04/thursday-roundup-9.html (2016-04-27)
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