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.