Yesterday, I talked about Crawford v. Washington, the US Supreme Court decision back in 2004 which held that if a statement is “testimonial,” it can’t be admitted, even if it falls within one of exceptions to the hearsay rule.  I also mentioned one of the exceptions to Crawford itself:  even if a statement is testimonial, it can be admitted if the person who made it takes the stand.  (In that case, of course, it would still have to qualify as an exception to the hearsay rule.) 

The Supreme Court granted certiorari a week or so back in Giles v. California to consider another exception.  That exception is aptly summarized by this line from the opinion of the California Supreme Court which it will be reviewing:

As explained below, we conclude that defendant forfeited his right to confront his ex-girlfriend when he killed her.

The facts in Giles are fairly straightforward:  the defendant was on trial for murdering his girlfriend, but claimed self-defense.  That was rendered problematic by the fact that the girl had been shot six times, at least one of which occurred while she was lying on the ground.  His claim to being afraid of her became even more difficult to maintain when the trial judge permitted a couple police officers to testify that they’d responded to a domestic violence call from Giles’ girlfriend just two weeks before the killing, in which she’d told them that Giles had just punched her, choked her, and held a knife to her throat and threatened to kill her.

The testimony came in under a weird California hearsay exception.  (Something about a statement regarding the suffering of personal injury, if “otherwise trustworthy.”)  Back in Davis v. Washington, a post-Crawford case from 2006, Justice Scalia had written that a defendant might forfeit his right to confront his accusers if he had been responsible for the accuser not showing up at trial.  Giles argued that this required the state to prove that the motive for killing his girlfriend was to keep her from testifying, but the California court didn’t buy it:  they held that as long as the defendant’s actions prevented the witness from testifying, his motives for those actions were irrelevant.

Giles is an extreme factual situation, but it’s somewhat surprising that the forfeiture issue hasn’t come up in any Ohio cases so far; it’s not uncommon in domestic violence situations.  And it raises some intriguing questions on that score.  Say, for example, the victim makes a detailed statement to the police about the abuse, but refuses to testify when the case comes to trial.  It could be that the victim is afraid to testify because the perpetrator threatened her, or it could be that the victim simply doesn’t want the defendant to go to jail.  In the first situation, forfeiture would obviously apply, and the statement would be allowed.  In the second it wouldn’t.  But how do you tell which is which?  What’s the state’s burden there? 

And let’s throw another log on the fire:  what if the victim is afraid to testify, but that’s due to just a general fear of the defendant, rather than anything he’s done or said?  Logically, it seems that it would be the defendant’s actions, not the witness’s fears, which would determine that question; all the talk about forfeiture has revolved around some definitive act by the defendant, and the very nature of the term (“forfeit”) implies that.  Again, who has the burden of proof, and what is that burden?

Those are some questions that are bound to come up in the future.  And if you’re interested in the subject, you can check out the case on ScotusWiki; you can find linkds to all the opinions and briefs there.

Meanwhile, “throw another log on the fire”?  When did I start talking like Andy Rooney?

Just about every criminal defense lawyer knows that Crawford v. Washington, the 2004 Supreme Court decision holding that the defendant’s confrontation rights barred admission of a ”testimonial” statement, was one of the most unexpected and sweeping changes in criminal law in the past decade or so.  As might be expected, courts have grappled with the meaning and effect of Crawford.  While the exact definition of “testimonial” is still subject to debate, by early last year, the 8th District had at least gotten the basics right:  Judge Gallagher’s opinion in City of Cleveland v. Colon (discussed here), contains one of the clearest expositions out there on how Crawford works, specifically the interplay between a testimonial statement and the hearsay rule.  

It’s been pretty much downhill for the 8th District on Crawford issues since, and that slide continued with last week’s decision in In re DD, which involved a juvenile accused of raping a 6-year-old.  The trial court had allowed a nurse to testify about the statements the victim made to her, and the defendant argued that the admission of those statements violated Crawford.

The court could have resolved that issue by simply saying that it didn’t apply, because in this case, the victim testified.  That’s one of the exceptions to Crawford:  even if an out-of-court statement is testimonial, its admission isn’t barred if the person who made it testifies in court.  After all, you can hardly claim that your right to confront and cross-examine your accuser has been violated if you get to confront and cross-examine your accuser.  So all the court had to say was, hey, the kid testified, end of discussion.

Which it did, but not until after it had discussed Crawford in some detail, and made pretty much of a hash of it.  Taking language from Crawford that indicates non-testimonial hearsay doesn’t implicate the Confrontation Clause, the court somehow concludes that “Crawford only applies to hearsay statements that are not subject to any hearsay exceptions.”  (The court came to the same conclusion a month ago in State v. Goza; the same judge authored both opinions.)

In other words, if a statement does fall within a hearsay exception, then Crawford doesn’t apply.  For example, if a statement qualifies as a declaration against interest, you don’t even have to bother with determining whether it’s testimonial or not.

Unfortunately, that’s wrong:  indeed, the fact pattern I just gave you is the one from Crawford.  The state had attempted to introduce a statement under the declaration against interest exception to the hearsay rule, and the Court held it couldn’t do that, because the statement was testimonial. 

While the definition of what constitutes testimonial statement gets a bit tricky, the basic Crawford analysis couldn’t be simpler.  

• First, you decide if the statement is testimonial; if it is, it doesn’t come in, unless the declarant testifies. 
• If it isn’t testimonial, then you proceed to the hearsay analysis;  if it falls within an exception, it’s admitted, if it doesn’t, it isn’t. 

It’s that simple.

It may be that the court still came to the right conclusion in DD, but it’s hard to tell.  One of the proposed definitions of a testimonial statement is “a statement about a past act or event which a declarant would reasonably expect to be used later in a criminal prosecution.”  The court in DD doesn’t specifically mention this definition, but obviously has it in mind, and dismissed it with the observation that “it is extremely unlikely that a six-year-old child was thinking about trial or criminal charges when he spoke to the nurse.” 

That’s quite true; as I’ve mentioned before, one of the problems with the “reasonable expectation” test is that it doesn’t work for young children:  they have no concept of what a trial is, let alone the likelihood of whether their statements will be used at one.  That’s why the Ohio Supreme Court last year in State v. Siler (discussed here) held that in interrogations of young children, it was the intent of the person conducting the interrogation, not the expectations of the child, which should control.  While Siler involved the police interrogation of the child, the opinion cited numerous cases which held that an interrogation by a social worker or a nurse, as happened in DD, could be held to be testimonial.  DD, of course, never mentions Siler, and the facts really aren’t developed sufficiently in the opinion to determine whether the questioning by the nurse might have produced a statement that should have been regarded as testimonial.

So there’s certainly a possibility that DD came up with the right result.  But if the process is skewed, as it was here, that significantly undermines the confidence in the result.  That becomes a particular problem a few years down the road if this case goes into Federal court on a habeas petition.  (And while a juvenile case isn’t likely to, a case like Goza, where the defendant got 31 years for rape and kidnapping, is.)  As most criminal defense lawyers also know, the 1996 changes to the habeas law substantially restricted its availability.  Instead of allowing Federal changes to second-guess state court determinations of Federal law, a Federal court isn’t allowed to grant relief unless the state court’s decision was based on a “misapplication of clearly established Federal law.”

Well, guess what?  You don’t get much more of a misapplication of clearly established Federal law than a decision which states that Crawford only applies to statements which don’t fall under a hearsay exception.  With DD and Goza, we have four judges signing off on two opinions in the past month which establish, for the largest county in Ohio, a precedent on Crawford issues that is plainly wrong. 

So if you’re practicing in Cuyahoga County, get a copy of Judge Gallagher’s decision and take it along with you when you have a trial where you expect Crawford issues to arise.  And hope that the judge hasn’t read DD or Goza.

Tomorrow, I’ll talk about a forthcoming US Supreme Court case on another exception as to what constitutes a testimonial statement.

As I mentioned a couple weeks back, Cleveland Mayor Frank “Sleepy-Time” Jackson has announced a campaign to get guns off the streets of the city, acknowledging that this could result in more shootouts between the police and private citizens.  So I was somewhat intrigued the other day when I ran across a 9th Circuit decision reported by the Decision of the Day blog.  The case was a civil lawsuit involving a police shooting of an unarmed man, within seconds after he’d been stopped while driving a luxury sedan in a “high-drug activity” neighborhood.  The legal issue revolved around the arcane question of whether there was a difference between “reasonable belief” and “probable cause,” but what caught my eye was the dissent’s summary of the testimony of the plaintiff’s expert’s testimony:

[The city used] a so-called “slumper” scenario in its training regimen, in which officers encounter a sleeping suspect in a car who, upon being awakened, immediately pulls out a hidden gun and fires at the officer. [In addition,] officers are trained on a computer simulation system in which suspects invariably attempt to kill the officer being trained. [The plaintiff’s expert] ultimately concluded that the City’s training program “creat[ed] a mindset for Portland officers that every citizen encountered may have a gun, and there is nothing the police officer can do to avoid being killed by a ‘bad guy’ unless the officer shoots first.”

I’d never thought of it like that, but yes, if you do train police officers to believe that a certain situation is always dangerous, they will treat it that way, even if it isn’t. 

So I decided to stick Decision of the Day on my blogroll, the list of links on the right.  In fact, I’ve revamped the blogroll a bit, adding some new ones.  One of them is the Confrontation Blog, which, despite its title, is not a respository of “in-your-face” legal arguments, but instead focuses on the evolving case law since Crawford v. Washington came down.  It’s a handy resource if you’ve got that as an issue.

In fact, while checking to see what blogs I might want to add, I came to the conclusion that we’re perilously close to a parallel to Andy Warhol’s observation that, in the future, everyone will be famous for fifteen minutes; instead, in the future, everyone will have their own blog.  There’s Indefensible, by a public defender, which has this take on the top 10 legal stories of the past year.  There’s a blog called Boston Criminal Lawyer run by a firm in that city; Friday’s post features a news story about a man recently charged with raping an unconscious woman in a men’s bathroom, and then brightly announces that “our law firm would be happy to discuss your rape case with you during a free consultation.”  And that’s for a run-of-the-mill rape.  Imagine their excitement at discussing your child molestation case with them. 

There’s even a blog called Angry Pregnant Lawyer.  Be afraid.  Be very afraid.

I was also going to add Above the Law, which bills itself as a legal tabloid, because they do have some interesting stories from time to time.  But mostly, they feature a lot of stories on what the big firms are paying to their associates, and after reading that the going rate for someone fresh out of law school is $160,000 a year, plus a $35,000 bonus if they meet their target of 2000 billable hours, I felt like opening a vein.  Our former docket runner just got hired for a summer associate’s position at a big firm here in Cleveland, which means she’ll get hired the following year after she graduates.  So I guess she’s not going to be crawling back to us for her old job anytime soon. 

Maybe she’ll loan me some money…

Tomorrow I’ll throw a tantrum about yet another foray by the 8th District in to the Crawford thicket, in which no one emerges unscathed.  See you then.

Nothing happening in Columbus.  I’ll have a post on some key cases in the US Supreme Court on Thursday.  Meanwhile, on to the courts of appeals:  (keep reading…)

Just a short note today.  I spent most of the week working on a petition for certiorari in the Supreme Court, trying desperately to keep my efforts from flagging because of the near-certainty that my chances of success are two, slim and none, and Slim rode out of town a while back.

While I was doing that, I had background music on in the form of the oral argument in the Ohio Supreme Court this past week in State v. Gardner (RealPlayer required), which involved the somewhat esoteric issue of jury verdicts in burglary cases.  As you may remember, burglary requires that a defendant make an entry for some purpose; in the aggravated variety, as was the case in Gardner, “to commit a criminal offense.”  The question is, does the jury have to find what particular offense that was, and does that have to be reflected in its verdict?

The thinking behind this is the unanimity requirement for a jury verdict.  Let’s say, for example, that a defendant breaks into his girlfriend’s house and beats her up.  One might argue that the offense is at least an assault, might be a domestic violence if they live together, and might even be a felonious assault if the injuries are severe enough.  But if the offense isn’t defined in the instructions or the verdict form, then it’s entirely possible that six jurors could have concluded it was an assault, three a domestic violence, and three others a felonious assault.  If that happens, can it be said that the jury “unanimously” concluded that the defendant was guilty?

The 2nd District didn’t think so, and reversed Gardner’s conviction.  (You can read the opinion here.)  From listening to the argument, what the Supreme Court’s going to do with it is anybody’s guess.  Chief Justice Moyer seemed to feel that it was a simple requirement of due process, but several other judges didn’t seem to be buying into that.  For somewhat understandable reasons; the burglary statute requires that the defendant have used “force, stealth, or deception” to gain entry to the premises, and there’s never been a case holding that the jury has to unanimously agree which one of those applies in the particular case.  And let’s say there were three possible offenses that the defendant might have committed, as I outlined above; does that mean that the judge would have to instruct the jury on the elements of each of those offenses?

Toss on top of that the fact that no one objected to the instructions at trial; the 2nd District reversed on a plain error theory, which the courts, and this one in particular, have been increasingly reluctant to use.  My crystal ball doesn’t see the 2nd District being affirmed here.

By the way, lest you think I am a complete goofball, no, I don’t normally use Supreme Court oral arguments as background music.  In fact, as a service to my legions of readers, I’ll turn you on to something I’ve mentioned before:  a web site called Wolfgang’s Vault.  You have to sign up for it — an email address is all you need — and in return you get live concerts from the 60’s, 70’s, and 80’s by the Allman Brothers, Eric Clapton, the Who, Jefferson Airplane, you name it, they’ve probably got it, all streamed right to your computer.  This afternoon, as I put the finishing touches on my brief, I’ll be listening to the performance Derek and the Dominoes put on at the Fillmore East back in October of 1970.  You listen to Clapton and the boys do a 14-minute version of “Got to Get Better in a Little While,” and trust me, it will.

Catch you on Monday.

This is going to be one of those days when I just take a look around the Web and see if there’s anything interesting in the legal field.  Sometimes what I find is depressing, like this commentary from the San Francisco Chronicle, highlighted over at Sentencing Law & Policy:

To many in the United States, the country of Somalia conjures up images of a primitive Third World country. So it may come as a surprise to learn that Somalia and the United States share an unfortunate commonality – they are the only countries in the world that refuse to sign the U.N. Convention on the Rights of the Child because of its ban on sentencing children to die in prison.

According to Amnesty International and Human Rights Watch, there are now about a dozen people outside the United States and Somalia who were sentenced to permanent imprisonment as children: South Africa has four, Tanzania has one, and Israel has seven. In contrast, the United States has 2,270 children serving such a sentence, including 227 in California.

Sometimes, though, you come across some really cool stuff, which can help you with your practice.  Like, courtesy of Grits for Breakfast, a link to the University of Texas El Paso (UTEP) Eyewitness Identification Research Laboratory.  I’d figured it for just a bunch of barely comprehensible research papers, but it’s got things like a basic information on how to construct a lineup, and “a Do-It-Yourself Kit for assessing the fairness of an eyewitness identification lineup.”  Given the well-documented problems with eyewitness identification, something like this could come in handy in preparing for cross-examination of a witness or the police.

In the same vein, there’s another website, run by Gary Wells, a psychology professor from the University of Iowa.  The website’s design is not exactly user-friendly, but if you look for it, you’ll probably find something on eyewitness ID that might help you.  Dr. Wells even offers a video where you can try out your own identification skills:  you view a two-minute clip where you see somebody attempting to plant a bomb, then you’re shown a lineup of the potential subjects and are asked to identify the person you saw.  When I did it, I didn’t think any of them looked like the guy, but there wasn’t an option for that.  I selected the first person, was told that I’d identified an innocent person, and advised to go to the web site to do additional reading on the problems of eyewitness identification.  I then picked the remaining five suspects in turn, and got the same response each time.  Oh, well.

And sometimes when you surf the web, what you come across is just plain weird, like this story:

Lindsay Lohan is about to see dead people. The 21-year-old actress will soon be working at a morgue as part of her punishment for misdemeanor drunken driving, her attorney, Blair Berk, told a judge Thursday.

As I’ve mentioned before, doing this blog is somewhat of a humbling experience, because I’m constantly reminded of how much I don’t know. I got another reminder of that last week, when one of the lawyers here walks into my office and tells me that he’s got a case where the prosecution wants to call his client’s wife to testify that the defendant gave her a forged check.  “Can she testify about that?” he asks.

My first instinct is to tell him she can, because as I recall Ohio’s rule prohibits a spouse from testifying only if the spouse doesn’t want to.  In fact, that’s what the prosecutor and a couple of other lawyers hanging around at the last pretrial had told him.  “That doesn’t sound right, though,” he complained to me.  “What about the marital privilege?”

If you’re thinking, “Isn’t that what we were talking about?” the answer is no, it’s not.  Turns out there’s too separate concepts at work here:  spousal privilege and spousal competency.  Spousal competency is governed by Evidence Rule 601(B); it provides generally that all witnesses are deemed competent, then makes several exceptions, one of them being a spouse testifying against the other unless it involves a crime against the testifying spouse or any of the children, or if the spouse elects to testify.

Well, that takes care of that, right?  Wrong.  There’s also the concept of spousal privilege, which is provided by Revised Code 2945.42.  (The statute also provides for a definition of competency, but that’s superseded by Rule 601).  As you can see, the privilege extends to communications and acts between the spouses:  neither spouse can testify about them unless a third party witnesses them.  Of course, there’s also the exception for crimes committed by one spouse against the other, or the children of either.

The case that does the best job of explaining all this is the Ohio Supreme Court’s decision in State v. Adamson.  That case represented the flip side of my friend’s situation:  the wife could testify about the husband’s acts (killing someone) because there were other people present, but the conviction was reversed because the court never explained to her that she could refuse to testify under 601(B). 

While the concepts of privilege and competency do overlap to a degree, the overlap is by no means complete.  If the parties are no longer married, the ex-spouse is certainly competent to testify, but the privilege still applies:  she can’t testify to any acts or communications that occurred during the marriage.  On the other hand, the privilege only keeps her from testifying to certain things; competency keeps her from testifying at all if she doesn’t want to.  And the privilege only applies to those acts or communications that occurred during the marriage; the competency rule prevents a spouse from testifying about anything, even if it occurred prior to the marriage.

So, armed with this information, my friend went off to do battle with the Forces of Darkness, and wound up getting a nolle.  The interesting part of this story is that he didn’t find out that the witness was his client’s wife until his client casually mentioned it a day or two before the trial.  So from now on I guess I’ll go over the state’s witness with my client, name by name, to make sure he’s not married to any of them.

The joys of fatherhood are somewhat tempered when you first find out about it when the kid’s headed off to her senior prom and the mother is asking you to shell out seventeen years of back child support.  Laches is one of those defenses that you may remember from law school and have never seen since, but it could come in handy in these situations, as demonstrated by the divergent results from a couple of 9th District decisions in the past few weeks. 

First up was Barker v. Jarrell, where the mother became pregnant in 1987.  The father offered to marry her, but she declined, and the two (soon to become three) had no further contact until the mother filed a paternity suit in 2005, seeking back child support.

The father’s defense of laches ran into problems.  First was the Supreme Court decision back in 1988 in Wright v. Oliver, holding that laches was available in that situation, but only if the father could show “material prejudice”; more problematically, lack of witnesses and the unfairness of suddenly incurring a multi-year retroactive obligation didn’t make the cut in showing that prejudice.  Moreover, while a number of courts had held that the father’s inability to form a relationship with his child might constitute such prejudice, the 9th District had previously rejected that argument.

Not this time, though; the trial court had accepted the defense of laches, and the 9th District affirmed that by a 2-1 vote.  The appellate court noted that the father had wanted a relationship with the child, offering to provide financial support when his marriage offer was rejected.  The mother declined that, too, insisting he have no contact with the child because her own parents had threatened to cut her off if she did.  In fact, the mother had married someone else, and raised the child to believe that the husband was the father, waiting until she’d released custody of the child to the maternal grandmother and the child was almost emancipated before filing for child support.  This was too much for the court, which quoted a 4th District opinion in a case with similar facts:

The non-custodial parent is more than a mere money machine. Each parent can contribute to the well-being of a child, regardless of which one has custody. The prejudice to the custodial parent who receives no support is obvious. The prejudice to the non-custodial parent who is denied any input to the child’s rearing is just as obvious.

The flip side of Barker was presented in Post v. Caycedo, where the parties’ liaison in Puerta Vallarta in 1992 resulted in the birth of a baby girl.  When CSEA filed a motion against Caycedo in 2001, seeking back child support, he asserted laches, too.  Somewhat surprisingly, given that two of the judges in Post were the ones who formed the majority in Barker, the court never even discusses the argument about whether the father had been denied the opportunity to have a relationship with his daughter. 

That could be, though, because the father was pretty much of a jerk:  he insisted that the two had had separate rooms, and that the only sexual congress consisted of the woman’s performing oral sex upon him.  The court found this hard to swallow (pun fully intended), particularly since the genetic testing showed a one-in-53 million chance that he wasn’t the father.  Noting that, “to paraphrase the principle contained in Occam’s Razor, all things being equal, the simplest explanation is usually the correct one,” the court observed

In order to find Caycedo credible, this Court would  have to find the following facts to be true. Post met Caycedo and decided almost instantly to have a child with him against his wishes. The two flew to Mexico together and Post obtained the receipt for Caycedo’s room to later support a claim that the two had sexual intercourse. Post then performed oral sex on Caycedo and somehow impregnated herself with Caycedo’s sperm.

Snaps to the opinion’s author for citing to Occam’s Razor.

One other thing to note about these cases:  RC 3111.13(F)(3)(a) provides that a father can’t be ordered to pay back child support if at the time of the request the child is more than three, and the father did not know and had no reason to know of the pregnancy.  Keep in mind, though, that in Smith v. Smith the Supreme Court held that the statute couldn’t constitutionally be applied where the child was born before the statute took effect in 2000. 

Ain’t love grand?

Probably the biggest news out of the US Supreme Court this past week was its refusal to hear an appeal by Cleveland’s former Boy Mayor, Dennis Kucinich.  Kucinich was asking the court to order the Texas Democratic party to put him on the primary ballot, despite his refusal to sign a declaration that he would support the party’s eventual nominee who, barring a catastrophe of Biblical proportions, will not be him.  The Court’s ruling unfortunately deprives the eight people in Texas who were thinking of voting for him the opportunity of doing so.

Last September, when we were vacationing in Maui, I stopped off in a bar to watch a ballgame while my wife was shopping.  On one TV was the announcement (threat?) that Dennis Kucinich would shortly be giving a press conference.  (For some inexplicable reason, Hawaii seems to be a favorite campaign stop for Dennis’ quadrennial Quixotian quests for the presidency.)  “Would you believe that goofball is my Congressman?” I said to the bartender.  She looked at me in surprise, and chirped, “I love the guy!”  I chalked it up to the thought that if I lived in Maui year round, I’d probably love everybody, too.

Down in Columbus, the Robed Seven churned out a number of decisions, though not any of epochal significance:  when a plaintiff moves for summary judgment, he doesn’t have the burden of negating the defendant’s affirmative defenses; a statute imposing a mandatory prison sentence for an offense (rape, in this case) does not require imposition of consecutive sentences for mulitiple violations of that offense; and equitable estoppel could not be used to rescue a 40-year-old claim against a diocese based upon sexual abuse by a priest, where while the diocese may have tried to prevent the plaintiff’s resulting pregnancy from becoming public, but there was no evidence it tried to prevent a lawsuit. 

In the courts of appeals:

Civil.  1st District holds that court records don’t have to be sealed just because the parties want them to be; statutory requirements for sealing records must be met… Where mother agrees to journal entry acknowledging paternity and setting child support, her later motion seeking back child support is barred by res judicata, because it could have been addressed in the original entry, says 10th District… 8th District reverses summary judgment in slip and fall, says attendant circumstances raise jury question as to whether hazard (floor mat) was open and obvious… 4th District reverses lower court’s dismissal on basis of motion alleging res judicata, because defendant failed to raise defense in his responsive pleading…

Criminal.  If you and one of your law firm partners are representing co-defendants, you need to read this 10th District decision on potential conflicts of interest; both attorneys wound up off the case… 8th District reverses denial of post-sentence motion to vacate plea, says defendant’s assertion that attorney incorrectly told her she’d get 3 for 1 credit against her prison sentence for time she’d spent in jail, and that she’d be eligible for judicial release after one year on eight-year sentence, required a hearing… 8th also holds that robbery under 2911.02(A)(2) (attempting to cause serious physical harm) is not lesser included offense of aggravated robbery under 2911.01(A)(1) (using firearm)… 4th District points out that state law does not permit order of restitution to third party (in this case, insurance company and Victims of Crime fund)… 4th District holds that extension of statute of limitations for sexual battery from 6 to 20 years wasn’t ex post facto violation when applied to defendant against whom 6-year statute hadn’t run at time extension was enacted…

That’s one tough broad.  From the facts in the 8th District’s decision last week in State v. Evans, picking up after the defendant tried to grab the victim’s purse:

The victim found herself facing a man, whom she later identified as Evans. Evans demanded that she give him her purse. When she resisted, he stated, “I’ve got a gun.” The victim indicated that she saw no weapon, but Evans moved his free hand toward his belt area. Rather than frightening the victim, the gesture served to embolden her. She told him, “Well, you know what? You’re going to have to use it,” and began to kick and fight.

Evans ran away.

One of the easiest predictions for the new year is that we will see the first substantive Supreme Court case ever on the 2nd Amendment.  As I’ve mentioned before, the Court has accepted review in District of Columbia v. Heller, the decision by the DC Court of Appeals which tossed out the District’s gun control statute.  The central question in the case is whether the 2nd Amendment provides for a collective or an individual right to bear arms.

What’s surprising about this argument is the fact that there’s a question about that at all.  For most of the past two centuries, it has been almost universally accepted that the right is a collective one, its sole purpose being to ensure a ready militia.  To be sure, gun rights advocates have argued the individual position, but for every quote from the Founding Fathers supposedly supporting that argument, opponents could trot out ten cases from various courts around the country holding that the right was merely collective, and did not in any way restrict the passage of regulations on individual gun ownership, possession, and use. 

Over the last ten years, that has changed dramatically.  Harvard Law Professor Laurence Tribe, indisputably liberal and perhaps the most recognized authority on the Constitution in the country, switched over and advocated the individual rights theory in his latest textbook on constitutional law.  It is now widely anticipated that the Court will indeed adopt the individual rights position.  (If you’re interested enough in the subject, you might want to take a look at the case’s entry at ScotusWiki; you’ll find an analysis of the arguments, links to all the pleadings, and links to newspaper articles and blogs discussing the case in endless detail.)

That’s not to suggest the decision in Heller will settle the issue, by any stretch.  There’s an excellent post over at Balkinization on the subject; the post and the comments below it pose observations about the issues Heller would raise if it comes down as expected.  Who gets to possess guns?  What “arms” are covered?  What regulations can be imposed on carrying them?  What test is used in determining that:  rational basis?  Compelling interest?  Something in between?

And getting away from the abstract legal questions, this may impact some of the cases we handle.  I recently had a client charged with having a weapon under disability, based on a twenty-year-old drug conviction.  If there’s an individual constitutional right to own weapons, does the age of the conviction and the nature of the crime preclude imposing a disability on that basis?  Can you argue that there’s no “compelling interest” in imposing a disability in those circumstances?

I’ve also mentioned before that under Federal law, penalty enhancements for having a gun require that the prosecution prove that the gun was “used in” the commission of the crime; under Ohio law, on the other hand, the gun only has to be “possessed” at the time the crime was committed.  You’ll find Ohio cases where people have been convicted of firearm specifications because drugs were found in the defendant’s bedroom and a gun was found in his car parked out on the street.  Again, if the state is required to show a compelling interest in infringing upon an individual constitutional right to possess guns, does that mean they’re required to show some connection between having the gun and committing the crime?

Most of us probably have views on gun control and regulation.  (Full disclosure:  I used to be a strong advocate of gun control laws, but came to the conclusion a number of years back that gun control for liberals is what capital punishment is for conservatives:  an issue central to their views on crime, but which really has no effect on it.)  Whatever those views, the fact is that Heller will herald the beginning of the development of a significant, and up to now neglected, area of constitutional law.