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  • Case Update at The Briefcase by Russ Bensing
    Ohio Supreme Court s been on a roll lately In addition to affirming the death sentences of Calvin Neyland and Anthony Kirkland in the past couple of weeks it added James Mammone to the list I m opposed to the death penalty but if Mammone ever gets his date with the gurney I doubt you ll find me protesting his demise outside the prison walls he murdered his mother in law then stabbed his five year old daughter and three year old sons in the throat as they sat in their car seats the girl had defensive wounds on her hands and arms The court did hand down one decision on non life and death matters For those not convinced that the Drug War is paying substantial benefits I give you State v Stevens Stevens and his co defendant Bondurant were two of nine individuals engaged in trafficking drugs in Highland County Both were indicted not only for the drug sales but were also charged and convicted of Ohio s corrupt practices act the counterpart to the Federal RICO statute those convictions earned them nine and seven year sentences To be convicted of an OCPA violation the State has to prove two predicate offenses in this case that required the predicate offense to involve an amount of 500 now 1 000 or more The State showed that the enterprise earned approximately 35 000 from drug trafficking but could only show that Stevens and Bondurant had made 250 and 460 respectively The question before the court was whether the amounts could be conglomerated but the statute was ambiguous on that point at best and in criminal law ties go to the defendant The question before the rest of us is whether the fuss over a total of 710 in drug sales was worth it In the courts of appeals The 8th District provides the quick and dirty on post release controls in State v Elliott 1 The judge has to notify the defendant at the sentencing hearing of the consequences of violating PRC 2 This notification also has to be included in the journal entry 3 If the court fails to include this in the journal entry it can correct it nunc pro tunc but 4 it can t correct it after the defendant has served his sentence That s what happened in Elliott s case and his conviction for escape is vacated The expungement statute last year was expanded to include as eligible offenders those convicted of a felony and a misdemeanor or two misdemeanors The defendant in Bedford v Bradberry is caught up in an exception to the latter the misdemeanors can t be of the same type He was convicted of two petty thefts within four months but the 8th District concludes that he can t get rid of either Help may be on the way though the opinion notes that the legislature is currently considering a bill which would delete the same offense language from the statute

    Original URL path: http://briefcase8.com/2014/05/case-update-74.html (2016-04-27)
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  • Case Update at The Briefcase by Russ Bensing
    programs but once you adopt a permissive attitude toward expansion of government powers you find them expanding in areas you didn t anticipate The Federalization of criminal law has long been a concern and It would be nice if Bond s case presented that single issue It doesn t the central question is how far Congress can go in implementing a treaty Still the decision to prosecute the case as a Federal matter was a moronic one and if Congress powers of implementation are curtailed as a result that s fine by me Whoever gave the green light for this prosecution needs to learn what all prosecutors who are vested with far more discretion than any actor in the criminal justice system should you don t do something just because you can No decisions out of the Ohio Supreme Court but there were oral arguments in a few and the court accepted some new cases so we ll talk about that later this week too Let s head over to the courts of appeals and see what happened there In State v Brown the police officer makes a valid traffic stop and then has his drug sniffing dog walk around the vehicle as was his policy to do for every stop The 6th District upholds the search finding that the stop was not unnecessarily prolonged the sniff occurred about five minutes after the stop Hard to quarrel with the result given that the courts have consistently held that a drug sniff is not a search within meaning of the 4th Amendment Earlier this year in Florida v Jardines discussed here the Supreme Court threw out a search where the police had taken a dog up on the defendant s porch but that was because in the majority s view the porch was part of the curtilage There s no curtilage in a car The 10th District confronts another recurring 4th Amendment issue in State v Goodloe specifically when does a consensual encounter become a stop When the police drove past Goodloe as he was waiting to cross the street they noticed two bulges in his pockets They turned around got out of the car and went over and questioned him eventually seizing a handgun he was carrying The trial court and the appellate panel relied heavily on the fact that one officer blocked Goodloe s path and the other came up to his side this the opinion concludes would communicate to a reasonable person that he was not at liberty to ignore the police and walk away and would constitute a seizure There s currently a debate as to whether defense counsel has to object to the trial court s failure to make the statutory findings required to impose consecutive sentences there s an argument that this means that the failure to make the findings can be reviewed for plain error That would be a problem because plain error requires a showing of manifest injustice and it might be a

    Original URL path: http://briefcase8.com/2013/11/case-update-53.html (2016-04-27)
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  • Happy Birthday! at The Briefcase by Russ Bensing
    m going to do a blog It will be written with elegance and style providing deep and provocative insights into Ohio criminal law maybe with a special section for prosecutors where I ll tread lightly on the case analysis in favor of more pictures and some nifty word puzzles I m not sure anything after eight years ago in that sentence was true In any event I ve been doing this for exactly eight years now I don t see me doing it for another eight to be sure Hell for all I know eight years from now the highlight of my week might be the day they serve sloppy joes in the dining hall at the nursing home because I don t have to put in my teeth to eat it But I ll be doing it for a while I enjoy it and it keeps me sharp I m only going to be doing it four days a week though Monday through Thursday I ve got a lot of stuff on my plate anymore what with appeals and trials and moonlighting as a hand model Take that George Costanza True I ve been able to get more done since I went to a 30 hour day and eight day week but time to do four posts a week is about all I can really manage comfortably So I m off to the party I ll be back with the Case Update tomorrow What s Up in the 8th on Wednesday and whatever comes to mind on Thursday Permalink Print Comment Jeff Gamso May 19 2014 8 53 AM Happy Blogiversary Mine actually turned 5 yesterday And I m feeling old Wait that s because I am old The hell with the age of the blog Search Search Recent

    Original URL path: http://briefcase8.com/2014/05/happy-birthday-1.html (2016-04-27)
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  • A blank check for misconduct at The Briefcase by Russ Bensing
    Kirkland the Supreme Court easily affirmed his conviction All seven justices agreed not only on Kirkland s guilt but agreed that the prosecutor had engaged in numerous instances of misconduct in the penalty phase which prejudicially affected Kirkland s substantial rights That s where the unanimity ended Four justices decided that Kirkland should die nonetheless Murder cases arouse passions and the prosecutor in Kirkland was highly aroused His closing argument in the penalty phase was a What Not To Do list for prosecutors Tell the jury that anything less than a death sentence isn t punishment at all Check He told the jury that since Kirkland would spend the rest of his life in prison for the murders of the women unless he was sentenced to death the murders of the girls would be a freebie Make up stuff about what the last minutes of the victims would have been like Check Make up stuff about the victims Check He gave a detailed accounting of the tough childhood experienced by one of the victims drug abuse by her mother father in prison none of which had made its way into the record Argue that the circumstances surrounding the killings are sufficient aggravating circumstances in themselves that they outweigh any mitigating factors Check The court agrees that the state s closing remarks in the penalty phase were improper and substantially prejudicial and thus finds well taken Kirkland s proposition of law alleging prosecutorial misconduct And that s where the train goes off the rails In capital cases the court conducts an independent review of the death sentence weighing the aggravating and mitigating factors itself to determine whether the sentence is warranted The majority decides that its independent evaluation of the capital sentence can cure the ills in Kirkland s case Lanziger O Neill and Pfeifer waste no time pointing out the problem with this This is not a situation where a prosecutor made a few improper comments and they were harmless in the broad context of the argument and the case Here the court had just held that the jury may well have come back with a life sentence if not for the prosecutor s improper comment that s what prejudicially affected Kirkland s substantial rights means How is that remedied by four justices deciding that they would have voted for death if they d been on the jury They weren t In fact if the jury had returned a life sentence like the court just got done saying they could very well have the court wouldn t be reviewing the case at all But the outcome is much worse than that We all know that prosecutorial misconduct is a problem in death penalty cases and others as well We all know that where a prosecutor is found to have engaged in misconduct even hiding evidence there are rarely any consequences You think there might be some connection between those two statements Of course there is And you ve just had

    Original URL path: http://briefcase8.com/2014/05/a-blank-check-for-misconduct.html (2016-04-27)
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  • "May I see your ID"? at The Briefcase by Russ Bensing
    a parked car and decided that one of them taking something from the trunk and carrying it into the house was worthy of further investigation In both cases the court decides that there s no reasonable suspicion of criminal activity so there s no grounds for a stop but that the cops approaching somebody on a public street is a consensual encounter and thus doesn t implicate the 4th Amendment So far so good In both cases the cops ask for identification Neither court found a problem with this and there s not much room for disagreement if a cop is free to walk up to you on the street and he is he s also free to ask you anything he wants You of course have the right to walk away and there are a number of cases holding that if you do that doesn t give the cops any basis for detaining you further Given the vagaries of the totality of the circumstances test though you can find cases where this coupled with signs of nervousness are sufficient to cross that murky line between Inchoate Hunch and Reasonable Suspicion The same thing happens next in both cases the cop takes the ID and goes back to the car and runs a warrant check How the courts treat that explains the different outcomes As the Westover panel puts it We conclude that no reasonable person would have felt free to terminate the encounter and go about their business where an officer is holding that individual s identification and is using it to run a warrants check At that point in short the individual is detained and the consensual encounter becomes a stop That means the police need reasonable suspicion to do that Despite the State s urging that the officer had a reasonable basis to investigate the visibly nervous group of people waiting outside the known drug house on a cold winter night the court wasn t buying The Houser court should have come to the same conclusion and almost did it noted its misgivings with the officers in running the identification observed that probable cause to arrest or even a reasonable suspicion of any criminal activity was absent and branded as specious the claim that Houser could walk away but nonetheless affirmed finding that since the evidence was discovered after he was arrested on the warrant the discovery was valid As I explained at the time this missed a step that the 10th District caught if taking the ID illegally prolongs the detention then the discovery of the warrant the arrest and the search incident to that arrest all go away to live in that fabled land where the trees sprout poisonous fruit So what s the upshot of Westover The court considered several other factors such as the presence of the two other police officers on the scene but it s hard to read the opinion as holding that anytime the police run a person s ID

    Original URL path: http://briefcase8.com/2014/05/may-i-see-your-id.html (2016-04-27)
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  • Close encounters of the consensual kind at The Briefcase by Russ Bensing
    an officer asks only for identification Florida v Bostick states that the police may ask for identification of a citizen so long as they do not convey the message that compliance with their request is required The court then looked to one of its prior decisions which contained seven factors to be used in determining whether compliance with a police request was voluntary e g there was the threatening presence of several officers there was a show of force by the officer and decided that the balance lay with the finding that the encounter was a consensual one There are a number of problems with the court s opinion though First the case law is a bit more muddled than the opinion gives on Hiibel involved an arrest under a Nevada statute which required a person lawfully detained to identify himself even Hiibel acknowledged that the officer had a reasonable basis for stopping him something that s lacking here Bostick involved a Florida police tactic of boarding buses just before departure and asking certain passengers for permission to search their luggage The Florida Supreme Court held that this implied that the person couldn t leave the bus unless he complied with the request but SCOTUS disagreed To their eternal credit after remand the Florida court threw out the search on state constitutional grounds Critical to Bostick though was the fact that the police there had specifically advised Bostick that he had a right to refuse consent here Houser had not been informed of his right to not to comply Second the court gives undue deference to the trial judge s decision After citing the law requiring an appellate court to accept findings of fact if they are supported by competent credible evidence the court noted that it is apparent that the trial court accepted the testimony of the officers and not Houser But it s not clear what the factual disputes were other than Houser s subjective beliefs which don t really play into the result It wasn t as though he was claiming that the officers had their guns drawn and the officers claimed they didn t Of the seven factors that play into the calculus of determining whether the encounter is consensual three counted against and four counted in favor The trial court was entitled to deference on she resolved the factual disputes on each of those factors but she wasn t entitled to deference on how she weighed them The appellate court can do that on its own Finally the court almost completely overlooks the fact that the police did not simply request Houser s ID they took it and ran a record check The opinion doesn t say how but this would certainly have required Houser s further detention for at least several minutes I say almost because the court does admit that it has misgivings about that and that the contention that Houser was free to leave when the officer walked away with his identification

    Original URL path: http://briefcase8.com/2010/09/close-encounters-of-the-consensual-kind.html (2016-04-27)
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  • What's Up in the 8th at The Briefcase by Russ Bensing
    gross sexual imposition and unlawful sexual conduct with a minor and three of contributing to the delinquency of a minor The jury convicted Buzanowski of one count of contributing hung on the GSI and the unlawful conduct and acquitted him of everything else At the retrial the jury convicted him of the two remaining counts GSI and unlawful conduct And that s where things get interesting Remember Buzanowski s conviction of contributing in his first trial The panel tackles that first Buzanowski had to wait until the retrial on the other charges to appeal the conviction in the first trial Simple issue the judge didn t tell the jury that the mens rea requirement for conviction was recklessness That wasn t objected to which takes us into plain error territory and what s more failure to instruct on an element of a crime isn t automatically reversible Here it is though the testimony of Megan that Heather looked 19 or 20 plus the dispute about whether Heather told Buzanowski her real age meant that the failure to instruct on recklessness created a manifest injustice So the contributing conviction goes away And so does the GSI for a different reason The Double Jeopardy Clause bars a defendant from being retried for the same offense but also from being retried if the second prosecution requires a relitigation of factual issues resolved by the first trial That s the concept of collateral estoppel carried over from civil law basically if the jury decided a critical issue of ultimate fact in favor of the defendant he s protected from further prosecution for any charge for which that fact was an essential element And that gets Buzanowski off the hook here The rape sexual battery and gross sexual imposition charges were based on different conduct but all had the common element of substantial incapacity By acquitting Buzanowski of the rapes and sexual batteries the jury obviously found against the State on that issue which foreclosed conviction for gross sexual imposition From there though it s pretty much downhill Buzanowski claims that the judge erred in allowing the SANE nurse to read the entire statement that Heather gave when she came to the hospital That came in under EvidR 803 4 which allows hearsay statements made for purposes of medical treatment or diagnosis As the court notes that limits it to statements made by the patient which are reasonably pertinent to an accurate diagnosis and should not be a conduit through which matters of no medical significance would be admitted The narrative here had no medical significance it was simply a recounting of the events leading up to the incident and didn t even mention any sexual conduct Because the statement is basically the same thing the victim testified to at trial there s a tendency to shrug any error off as harmless That s not necessarily the case knowing that the alleged victim told essentially the same story to the nurse as she s telling

    Original URL path: http://briefcase8.com/2014/05/as-wojciech-buzanowski-can-tell.html (2016-04-27)
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  • Case Update at The Briefcase by Russ Bensing
    but after the fiasco with the executions of Dennis McGuire here in Ohio and Clayton Lockett in Oklahoma the smart money is that by the time Neyland finally has a definite date with the gurney in another couple of decades there won t be one Prosecutors are increasingly unwilling to seek the death penalty and juries are increasingly unwilling to impose it Regardless of whether you believe that someone like Lockett deserves to die he raped a 16 year old girl then helped bury her alive the prospect of having executions play out like the climactic scene in Braveheart is a bit much for a society that deems itself civilized In the courts of appeals The purpose of HB 86 was to reduce Ohio s prison overcrowding it supposedly made it harder for judges to send people to prison in the first place and to make it harder for them to impose consecutive sentences The 6th District s decision in State v Mathis shows the illusory nature of that supposed achievement The judge had imposed consecutive prison sentences of 11 months for Mathis two fifth degree felony drug convictions Mathis first claimed that he shouldn t have been sent to prison at all since he hadn t been convicted of a felony in the past two years That was the law at the time of Mathis sentencing the statute has been subsequently amended to permit the judge to send a defendant to prison on a 4th or 5th degree felony if he s got a prior felony conviction regardless of the date But Mathis had showed up a half hour late for his trial on two days so that was a violation of his bond which took him out of the mandatory probation feature Much worse was the court s treatment of the consecutive sentencing issue The explanation the trial court gave for imposing consecutive sentences was Mathis record he d had 11 previous convictions of misdemeanors and felonies only one since 2006 was this Based on his past record based on the type of drugs and the event this Court runs finds that it s necessary to protect the public from future crimes by this individual The 6th District found this to be enough the trial court found that the type of drugs involved and the event itself posed danger to the community it found that there was a need to protect the public from Mathis behavior Notably absent from anything the judge said was the second finding required by the statute that consecutive sentences are not disproportionate to the seriousness of the offender s conduct and to the danger the offender poses to the public Oh and the type of drugs involved that posed such danger to the community that it required consecutive sentences The total haul was 51 oxycode pills and seven of buprenorphine Not to pick on the 6th District but its decision in State v Gaines is equally puzzling The day before trial the State

    Original URL path: http://briefcase8.com/2014/05/no-oral-arguments-anymore-in.html (2016-04-27)
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