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  • Chilling advocacy at The Briefcase by Russ Bensing
    deal Evans refused stating we re not going to play games and set the case for trial After Bright and the prosecutor met with Evans in his chambers three days later to persuade him to accept the plea to no avail Bright filed a Motion to Accept Plea He criticized several other policies of Evans like his blanket policy of a drop dead date concerning plea agreements his refusal to accept Alford or no contest pleas and argued that the refusal to accept the plea in this case was an abuse of discretion because it was arbitrary and unreasonable While the language was forceful he called Evans acts unconscionable he made no charges of ethical impropriety Evans response was immediate Two days after Bright filed the motion Evans filed a grievance against him with Disciplinary Counsel But he didn t stop there He removed Bright from the case And he didn t stop there The following day Evans filed journal entries in the other sixty three felony cases Bright was handling removing him from those as well because Bright by filing the motion had created a conflict of interest with the Court So what do you do if you re a corporation that has hired a lawyer to appear for indigent defendants who can no longer appear for indigent defendants You fire him And that s what the corporation did Bright s advocacy for his client cost him his job But you re saying surely there s something wrong with that And you ll be buoyed to know that there is Bright filed a grievance against Evans with the Ohio State Bar Association Evans and the Association submitted a consent to discipline agreement stipulating to a public reprimand Not good enough said the Board of Commissioners on Grievances and Discipline and sent it back for hearing That resulted in a jointly recommended six month stayed suspension which the Board approved Not good enough said the Supreme Court citing the harm caused to Bright let alone to his clients the justices issued a per curiam opinion the legal equivalent of phoning it in anonymously imposing a one year suspension on Evans All of it stayed It still wasn t over Bright filed a Federal lawsuit against Evans and the corporation and while the district judge dismissed the corporation he rejected Evans claim that he was entitled to absolute judicial immunity But last June the 6th Circuit reversed The opinion began by noting that there is no debate that Judge David Dean Evans failed to meet the minimum expectations for members of the judiciary and found his conduct worthy of censure petty unethical and unworthy of his office and unprofessional and misguided and that by operating in such an unreasonable manner Judge Evans has brought dishonor on himself and his position It nonetheless found that finding for Evans was necessary because it preserves the independent judiciary There s talk about this going up to the Supreme Court and that may be wise

    Original URL path: http://briefcase8.com/2014/10/chilling-advocacy.html (2016-04-27)
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  • What's Up in the 8th at The Briefcase by Russ Bensing
    generally a trial court complies with this requirement when it considers a presentence investigation report that contains information about the offender s financial situation and his ability to pay the financial sanction In other words as long as the judge has information about the defendant s ability to pay he ll be deemed to have considered it and his decision is essentially immune from appellate review One feels some sympathy for the defendant in State v Becker he befriends a young lady on Facebook who professes to be 21 the two get their freak on and when the police find her performing oral sex on him in a car she responds to their questions about her age by telling them she s 15 But not much he s thirty and their several assignations began with him picking her up at a gas station and ended with them smoking marijuana and having sex in a motel The real issue is whether the State proved that Becker was reckless with regard to her age the mens rea required for conviction of unlawful sexual conduct with a minor Unfortunately for Becker that s an argument you win in front of a jury or not at all A bit of a perplexing result in Cleveland v Evans Evans was stopped for erratic driving and deciding confession is good for the soul told the officer that he was driving on a suspended license had been drinking and felt buzzed He blew a 179 and pled to driving under suspension Four months later the City charged him with DUI Evans raises two main arguments one that this violates his speedy trial rights and the second that it s a violation of his due process rights The second is based on court cases holding that a plea agreement is a contract and that if a defendant has a reasonable expectation that his plea will terminate the case against him that becomes a binding contract The court finds that he didn t have a reasonable expectation because he d had previous DUI s and that had been referred over to common pleas court In fact it had a case number and was being submitted to the grand jury What about the speedy trial argument The law is that if new charges arise out of same facts as original charge time on new charge runs from original charge But here the court decides that the criminal case against Evans terminated with his plea to the DUS No case no speedy trial time running But wait didn t we just say that the case had been referred to common pleas court And there was a case number assigned to it And there were grand jury proceedings pending Wouldn t that constitute a pending case Sentencing and allied offenses get a workout in State v Crockett He pleads guilty to murder with a gun spec and felonious assault and agrees to an 18 to life sentence for the murder plus five

    Original URL path: http://briefcase8.com/2014/10/whats-up-in-the-8th-93.html (2016-04-27)
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