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  • Case Update - SCOTUS edition at The Briefcase by Russ Bensing
    Ayala demonstrates the hurdle that habeas corpus petitioners must overcome Ayala s lawyer at trial raised a Batson challenge to the exclusion of black jurors so the judge held a hearing on it without Ayala or his lawyer being present The California courts had found the exclusion to be error but a harmless one but the 9th Circuit disagreed and granted relief The Court by a 5 4 vote reversed holding that when a state appellate court finds that an error was harmless the federal courts in habeas review can overturn that holding only if they find that the harmless error determination not the error itself was contrary to or involved an unreasonable application of clearly established federal law It s not unusual for justices on opposite sides to make acerbic comments about each other s views Scalia has elevated that to an art form but in Ayala we have sparring between two justices in the majority Ayala had been convicted of killing several people and had been kept in solitary confinement in prison There s a wealth of recent research indicating the mental effects of being kept in solitary for extended periods of time and Kennedy used his concurring opinion to raised concerns about the increased use of that punishment Thomas in a one paragraph opinion responded tartly that the accommodations in which Ayala is housed are a far sight more spacious than those in which his victims now rest and that Ayala will soon have had as much or more time to enjoy those accommodations as his victims had time to enjoy this Earth First there was the demon weed then the crack cocaine epidemic now heroin use is on the rise again and bath salts The question in McFadden v US was the mens rea requirement for violation of the federal narcotics statute A federal statute defines numerous controlled substances but in an effort to keep up with the intersection of chemistry and ingenuity in creating substances will produce a high Congress passed the analogue statute which prohibits substances which are substantially similar in chemical structure to one of the banned drugs The federal drug statute prohibits from knowingly possessing a controlled substance The McFadden Court in a unanimous decision authored by Thomas and he had a busy week didn t he held that the knowing element in the federal drug statute went to both the verb and the noun in other words the government had to prove that the defendant knew that the substance was prohibited either because it was expressly defined as a controlled substance or because he knew that the substance was a prohibited analogue How to do that I ve read the opinion twice and I m still trying to figure that out It gives two examples a defendant can be convicted if it s shown that he knew that the substance with which he was dealing is some controlled substance that is one treated as such by the Analogue Act Being told

    Original URL path: http://briefcase8.com/2015/06/case-update---scotus-edition.html (2016-04-27)
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  • Another look at Ruff at The Briefcase by Russ Bensing
    Justice Eric Brown s opinion detailing how the defendant s conduct was pretty much the be all and end all for allied offense analysis And that should pretty much be the end of it But it s not because there have been several Supreme Court decisions since Johnson and two in particular bear upon the resolution of Anthony The first is State v Miranda which presented the question of whether a conviction under Ohio s Corrupt Practices Act merged with the two predicate acts required for conviction of the OCPA count The court decided that they didn t and rightly so as the majority the legislature clearly intended to punish both How clear that was is well unclear as I pointed out at the time you don t find anything in the statute to that effect but the majority opinion cites a bunch of other cases where courts said the majority clearly intended that so that s good enough for government work But three judges concurred only in judgment and Justice Lanzberger s opinion for the three focused not on the question of whether the offenses were of similar import but whether they were of dissimilar import That s a question she echoed in writing the majority opinion in State v Ruff the court s latest pronouncement on allied offenses There s some basis for that The A section of the statute says that a person can t be convicted of both offenses if they re of similar import and the B section says that the person can be convicted of both if his conduct constitutes two or more offenses of dissimilar import But what does dissimilar import mean In Ruff the court concluded that it meant whether the harm that results from each offense is separate and identifiable When I discussed Ruff I criticized it for not offering a clue as to how anyone is supposed to make that determination a failure made all the more troublesome by the court s decision not to determine it in Ruff s case but to kick the whole thing back to the 1st District Why the court chose this route when it had all the facts the 1st District did is a mystery The Anthony majority notes that it would have been helpful had the Supreme Court provided more guidance then essentially dispenses with the whole issue deciding that Ruff really directs that r ather than compare the elements of two offenses to determine whether they are allied offenses of similar import we must focus on Anthony s conduct I think that s a rather strained interpretation of Ruff but the result the majority comes to that the offenses merge here is probably the correct one at least in keeping with Johnson There s really no distinction between the two cases on the facts if Johnson s child endangering should have merged with the felony murder it s hard to see why Anthony s felonious assault shouldn t merge with the involuntary

    Original URL path: http://briefcase8.com/2015/06/another-look-at-ruff.html (2016-04-27)
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  • What's Up in the 8th at The Briefcase by Russ Bensing
    a year of community control sanctions For what would ve happened if I d been the judge see above If I d been the judge I would have granted Danny Dozanti s application to have his disability to own firearms removed He d been convicted of one count of felony drug trafficking back in 1990 did eighteen months in prison and hadn t been in trouble since He filed for relief from disability in 2010 and again in 2013 the judge held a hearing on it in 2014 then denied it without explanation eight months later The court reverses in State v Dozanti despite the panel noting that the judge is a seasoned and thoughtful jurist an opinion with which I concur But that s not enough Although findings and reasons are not required by the statute the record must in some form support the trial court s denial and this record didn t If I d been the judge I probably wouldn t have imposed 20 000 in mandatory fines on Darien Smith on top of the 11 years he was going to do as a major drug offender But the judge in State v Smith did and the panel comes to the Seinfeldian conclusion that there s nothing wrong with that To be sure Smith had filed an affidavit of indigency which is step One to avoiding the fine In Step Two Smith has to show the offender has to show that he s unable to pay the fine But the affidavit only establishes the present inability the court has to consider the future ability as well The panel concludes that the judge didn t abuse his discretion had the future ability to pay the fine Smith was only 30 years old at the time of sentencing The record shows that Smith is intelligent physically healthy and capable of performing honest work if he were so motivated That last phrase is the operative one especially in light of the fact that when the Feds arrested Smith they found 290 000 in cash lying around his house I m guessing that since Smith didn t even get his GED until he did a previous prison stint there weren t a whole lot of ways he could have accumulated north of a quarter million bucks through honest work and I doubt when he gets out that his motivation will change much The judge gave Bobby Thompson twenty eight years in prison and I probably would have gone under that a bit Thompson is the name that appears in the court docket but it s anybody s guess what his real name is although he s supposed to be John Donald Cody when he was arrested he had no fewer than seven different ID s on him In any event Thompson aka Whatever ran a fake charity for naval veterans and used it to scam millions of dollars from people around the country The focus of his appeal is his claim

    Original URL path: http://briefcase8.com/2015/06/whats-up-in-the-8th-122.html (2016-04-27)
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  • Case Update at The Briefcase by Russ Bensing
    s apparent definition of competence at least in terms of standing trial is the ability to distinguish the judge from a cabbage The cupboard down in Columbus was equally barren with not even a disciplinary or tax decision The only thing worth writing about there is two oral arguments coming up next week The first features State Shabazz and 8th District decision discussed here which held that to convict someone of complicity in a gun crime the State had to show that the defendant had some foreknowledge that a gun would be used It s based on the Supreme Court s decision to the same effect in Rosemond v US discussed here and its potential effects are huge The second is State v Klembus another 8th District decision discussed here concerning a statute which provides that a sixth drunk driving offense within 20 years fourth degree felony with a minimum sixty day sentence unless the prosecutor includes a specification in that case it s still a fourth degree felony but now with a minimum sentence of one to five years The 8th tossed it for the due process violation so we ll see how that goes In the courts of appeals A defendant is entitled to counsel at all critical stages of the proceedings and one would certainly think that hearing to determine whether he should be allowed to withdraw his plea falls into that category Unfortunately most courts allow the attorney to sit that one out if he feels that it s not in his client s best interests The 8th is particularly bad at this I once had a case where they gave a pass to the attorney s arguing against the client s motion The 1st District s decision in State v Foreman then comes as a surprise One of Foreman s reasons for seeking withdrawal was his contention that his clients had not been honest with him As the panel noted this created a conflict of interest for his lawyers The State argued that Foreman wasn t even entitled to counsel at the hearing and the panel dodges that issue instead holding that Foreman was represented and that because of the conflict the ineffectiveness of counsel is presumed The defendant breaks into a house and robs four people at gunpoint Four convictions for aggravated burglary or just one The 7th District gives the correct answer one in State v Burton The State relied upon the Supreme Court s recent decision in State v Ruff discussed here and argued that offenses weren t of similar import if they caused separate identifiable harms Numerous courts had held that a burglary was an offense directed at the dwelling not the individual and that the defendant could be convicted of only one count regardless of how many occupants there were The panel holds that despite the harm to multiple occupants the theory that at the heart of an aggravated burglary is the trespass survives Ruff The defendant in State v

    Original URL path: http://briefcase8.com/2015/06/case-update-111.html (2016-04-27)
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  • Complicity and gun crimes at The Briefcase by Russ Bensing
    a gun during a drug trafficking crime but the Court reversed his conviction because the trial court didn t instruct the jury that it had to find Rosemond had advance knowledge that his co defendant had a gun When I discussed the case I pointed out that the Court s opinion wasn t based on its interpretation of the Federal statute but on common law principles of intent and aiding and abetting and suggested it might have some application to Ohio law The 8th District came to the same conclusion last week in State v Shabazz Shabazz was charged along with Dajhon Walker and Otis Johnson with aggravated murder in the killing of Antwon Shannon during an altercation in a nightclub Johnson pled out to felonious assault and was given community control sanctions Walker was the shooter and as I mentioned yesterday last week another panel vacated his conviction for aggravated murder finding no evidence of prior calculation and design That decision benefited Shabazz or course but that still left him with a conviction of felony murder based on the underlying offense of felonious assault shooting Shannon with a firearm In deciding that issue the court looks extensively at Rosemond The judge there had instructed the jury that it could convict Rosemond if it found that he knew the co defendant had used a firearm in the drug trafficking crime and that Rosemond had knowingly and actively participated in the drug trafficking crime Not enough said SCOTUS it held that the jury should have been instructed that it had to find that Rosemond had knowledge that his co defendant had a gun in sufficient time to withdraw from the crime In short defendant s knowledge of a firearm must be advance knowledge In a 2 1 decision the court in Shabazz finds the evidence didn t support the theory that Shabazz had knowledge that Walker had a gun That call was made much easier by the fact that the entire incident was captured by the club s video surveillance system it showed the trio being patted down when entering the club lending credence to a claim that Shabazz wouldn t have known about the gun and Walker retreating behind a pillar on the floor and shooting Shannon while Shabazz is walking away from the altercation The opinion says that a review of Ohio case law shows that foreknowledge of the gun has generally been applied in cases in which a defendant is found to be complicit in felony murder with a firearm True that but all of the cases involve cases in which the conviction was upheld the majority is left with the task of distinguishing them which it does for the most part successfully As I said when discussing Rosemond the case and Shabazz aren t a universal get out of jail free card for anyone accused of complicity with a gun crime in fact it may be of limited value because many crimes especially aggravated robbery contemplate the

    Original URL path: http://briefcase8.com/2014/05/complicity-and-gun-crimes.html (2016-04-27)
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  • A new look at aiding and abetting at The Briefcase by Russ Bensing
    one but Kagan s opinion for the Court raises some possibilities for the first Because she doesn t decide the case on the basis of statutory interpretation but rather on an analysis of the common law principles of aiding and abetting As you remember from law school sure you do every crime consists of the actus reus and the mens rea the criminal act and the intent to commit it There s no problem with Rosemond s culpability of the act The common law has long held that a defendant can be convicted of aiding and abetting without participating in every element of the crime You can be convicted of mail fraud even if you only prepared the documents and somebody else mailed them Rosemond unquestionably satisfied 924 c s element of participating in a drug transaction the government did not need to establish that he assisted in the possession or use of a firearm But that s when we come to intent and as Kagan notes the common law requires that a person actively participates in a criminal venture with full knowledge of the circumstances constituting the charged offense When an accomplice knows beforehand of a confederate s design to carry a gun he can attempt to alter that plan or if unsuccessful withdraw from the enterprise it is deciding instead to go ahead with his role in the venture that shows his intent to aid an armed offense But when an accomplice knows nothing of a gun until it appears at the scene he may already have completed his acts of assistance or even if not he may at that late point have no realistic opportunity to quit the crime And when that is so the defendant has not shown the requisite intent to assist a crime involving a gun Obviously Rosemond is good news for lawyers defending clients on 924 c charges But does it extend farther Can it be applied to Ohio crimes involving the use of a gun like aggravated robbery with a deadly weapon or to firearm specifications There s some potential here As I said this isn t about statutory interpretation Kagan s opinion contains no parsing of the words of the statute no exposition on congressional intent It s all based on common law principles and those apply just as easily to Ohio statutes as to Federal ones No we don t have common law crimes in Ohio but we do use common law principles of aiding and abetting and intent There are problems too First the use of a gun is virtually inherent in some crimes Arguing that your client didn t know that any of his accomplices in a bank robbery would be carrying a gun is very probably a forlorn endeavor And in the example above evidence that Larry knew Joe usually carried a gun would probably go a long way toward establishing Larry s foreknowledge that Joe would bring it to a drug deal and use it if

    Original URL path: http://briefcase8.com/2014/03/a-new-look-at-aiding-and-abetting.html (2016-04-27)
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  • What's Up in the 8th at The Briefcase by Russ Bensing
    attempt statute making it a 4th degree felony and the State also dismissed the firearm specs the prosecutor telling the court that actually there is some possibility that it was not an operable weapon and also this defendant was not in possession of that weapon and that it s the State s understanding that it was not a real gun Well yes that would make a difference When V D applied for expungement the judge reluctantly turned him down because robbery is a crime of violence and you can t have that expunged The panel s path to reversal isn t a smooth one Thecourt begins by noting that offense of violence is not defined in the expungement statute but in the general definitional section RC 2901 01 Relying on its decision two years ago in State v J K the panel decides to review the record to determine whether the facts clearly reveal that the defendant committed a disqualifying offense of violence Then it pretty much ignores the record deciding instead that V D is entitled to expungement because robbery itself includes attempt the crime includes either committing or attempting to commit a theft offense and when the underlying offense itself contemplates attempt and the defendant was charged with an attempt of that offense the element of violence is simply too removed for the defendant to be automatically precluded from expungement The State sought appeal to the Supreme Court in J K but was turned down I m figuring they ll try again We ll see how this one goes While they do the Memorandum in Support of Jurisdiction in V D they ll also probably work up one in State v Klembus Under R C 4511 19 G 1 if you re convicted of drunk driving and have five or more prior convictions of the offense within the past twenty years it s a fourth degree felony and the judge has to give you a minimum of sixty days in jail or prison If the prosecutor includes a specification under RC 2941 143 though it s also a fourth degree felony but now the judge can give you a mandatory sentence of anywhere from one to five years So what does the specification in RC 2941 143 allege The same thing that s required for conviction under RC 4511 19 G 1 That you ve had five or more prior convictions of the offense within the past twenty years In other words you can spend two months in jail or sixty months in prison depending solely upon whether the prosecutor decides to include the specification And if you re a prosecutor reading this and you want to say But it s the grand jury that decides to include the specification please don t because we ll all start laughing really hard Kembus alleges that this violates the Equal Protection Clause and that appears to be an uphill climb normally abuse of prosecutorial discretion in this respect requires a

    Original URL path: http://briefcase8.com/2014/05/whats-up-in-the-8th-74.html (2016-04-27)
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  • Revisiting Elonis at The Briefcase by Russ Bensing
    impose strict liability so recklessness it was the defendant had to be reckless in knowing that he was under indictment State v Johnson came just two years later Johnson was charged with weapons disability based on two prior drug convictions and stipulated to those convictions at trial He took it up on appeal though arguing that he didn t stipulate to any mens rea element regarding those convictions The 8th District bought it based upon Clay after all the under indictment subsection is the same as the has been convicted subsection and Clay held that the subsection required recklessness so the omission of that element in Johnson doomed the conviction BZZZZT Wrong answer said the Supreme Court After an exhaustive recitation of Ohio case law on the subject the court came to the bewildering conclusion that since the section provided a knowing intent but the subsection provided none no mens rea was required for the subsection without even getting into whether the legislature intended strict liability And of course this overruled Clay without expressly overruling Clay Now there was a way of distinguishing Johnson from Clay The court could have held that Clay s situation was a mistake of fact he didn t know he was under indictment while Johnson s was a mistake of law he didn t realize that his convictions a misdemeanor drug offense and selling counterfeit drugs created the disability Mistake of fact can be excused mistake of law cannot The End Instead what we have a situation where a defendant can be charged with having a weapon under disability if he s charged in a secret indictment that he knows nothing about Does that square with Elonis While the decision was based to a certain extent on statutory interpretation it was also based on the concept that due process demands an interpretation which requires a mens rea Take a look at this language The fact that the statute does not specify any required mental state however does not mean that none exists We have repeatedly held that mere omission from a criminal enactment of any mention of criminal intent should not be read as dispensing with it This rule of construction reflects the basic principle that wrongdoing must be conscious to be criminal This principle is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil The central thought is that a defendant must be blameworthy in mind before he can be found guilty a concept courts have expressed over time through various terms such as mens rea scienter malice aforethought guilty knowledge and the like Although there are exceptions the general rule is that a guilty mind is a necessary element in the indictment and proof of every crime We therefore generally interpret criminal statutes to include broadly applicable scienter requirements even where the statute by its terms does not contain

    Original URL path: http://briefcase8.com/2015/06/revisiting-elonis.html (2016-04-27)
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