Supreme Court Update
I mentioned the other day that you can view Ohio Supreme Court arguments via streaming video on their website. It's not exactly edge of your seat entertainment, but it can sometimes be interesting, and it's a great learning resource if by some chance you have to go down to Columbus and pitch a spiel on your case to the Seven Robed Ones.
I discussed the argument on a civil appeal the other day, but there were arguments on several criminal cases this week that bear mention. The first is State v. Lomax, a case out of the 1st District which threw out a murder conviction because it found the jury waiver invalid. The critical question in the case is whether the court had to engage in a colloquy with the defendant concerning the waiver, or could simply rely upon the defendant's execution of the written waiver. Judge Painter did his usual good job of analyzing the case law on the subject, concluding that because Ohio's statute requires the waiver to be done in "open court," some sort of dialogue was required. In this case, the only mention of the waiver in open court was this statement by the judge at the outset of the trial: "Okay. I understand we are finally ready on the Lomax case. Since there's going to be a jury waiver, does the state care to make an opening statement at this time?"
Actually, I was somewhat surprised to see that the law is so undemanding in this area, even on the Federal level. Criminal Rule 11 requires a court to engage in an extensive colloquy with the defendant when accepting a plea, in order to comply with the Supreme Court's dictate in Boykin v. Alabama that the record must demonstrate that any waiver of constitutional rights is "knowing, intelligent, and voluntary." Yet even the majority in Lomax concludes that just a solitary question by the trial judge -- "you signed this waiver, right?" -- would be sufficient to satisfy the requirement that the waiver be done in open court.
I think the Supreme Court's likely to uphold the decision in Lomax, but it will be interesting to see how far they go in specifying exactly what the judge has to do. From my viewing of the oral argument, it's likely that the requirement will be minimal. That's unfortunate. Judges are required to go to some lengths to make sure that a defendant understands that a guilty plea involves relinquishing his constitutional rights to confrontation of witnesses, self-incrimination, and the like. Given that we're talking about one of the four boxes that form the basis of American liberty (jury, ballot, soap, and ammo), something more than a judge's off-hand reference to it should be required to find a valid waiver.
Another case that was argued this week was the 3rd District's decision in State v. Geeslin, which I discussed here when it first came down in June. It involves the issue of whether the destruction of evidence -- in this case, the videotape of an arrest -- requires dismissal of the charges. The Geeslin court concluded that it didn't, because the defendant hadn't requested the evidence before it was destroyed.
As I mentioned in my note, the general rule that's been adopted by the courts is that if the defendant had made a request for the the evidence before it was destroyed, the state would then have the burden of proving that the evidence wasn't exculpatory. A more logical approach would be to require the state in that circumstance to show that there was no bad faith in the destruction. The current approach is more beneficial to defendants, of course -- it's a lot easier for the state to prove lack of bad faith than it is for them to prove that the evidence wasn't exculpatory, for the simple fact that since the evidence no longer exists it's almost impossible to prove what it shows.
There's an interesting aspect to Geeslin, though, and Justice Pfeiffer touched on it in the oral argument. The case involved a DWI arrest, and the defendant was stopped for crossing the white lane on the roadway several times; the videotape would presumably have determined whether that had actually happened. But this raises a question: since the destroyed evidence went only to the legality of the stop, was it truly exculpatory? The defendant's guilt of DWI was fairly clear: he blew a .176 on the breathalyzer. "Exculpatory" evidence is arguably concerned with the question of defendant's guilt or innocence, not evidence which goes to a motion to suppress.