Indictments and mens rea
I spent a fair amount of time yesterday talking about the Supreme Court's decision last week in State v. Blackburn. Then again, when do I not spend a fair amount of time talking? Today's note will be shorter, though; the subject, State v. Colon, handed down a couple of weeks back, is a good bit more straightforward. Its impact is also much more significant.
It doesn't take much more than a couple of paragraphs to describe what happened in Colon. The defendant was charged with a single count of robbery, in words virtually identical to those found in the statute:
[I]n attempting or committing a theft offense, as defined in Section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense upon [the victim, the defendant did] inflict, attempt to inflict, or threaten to inflict physical harm on [the victim].
Major problem: nowhere does it allege a mens rea requirement. Prior case law says that when a statute doesn't provide an intent requirement, and doesn't plainly indicate a legistative desire to create a strict liability offense, a reckless intent is the minimum required. But that intent has to be alleged in the indictment: in Colon, everybody agreed that the failure of the indictment to do this made it defective.
What to do about that was the question. After all, the defendant hadn't raised the defect, either before or at trial. That normally would have required analysis under the plain error standard, but the Court decided that the omission of an intent element in the indictment (and, or course, in the instructions to the jury) was so damaging to the overall integrity of the trial that it constituted structural error. Which means that it requires reversal; there's no such thing as a "harmless" structural error.
As the three dissenters -- Lundberg Stratton, Lanzinger, and O'Donnell -- point out, that's a pretty broad reading of the term "structural error"; the dissent cites several cases that have gone the other way. There's merit to that argument. Traditionally, structural error has been limited to those situations in which the error so infects the proceedings that one can have no confidence in the integrity of the outcome; denial of the right to counsel is perhaps the clearest example.
Be that as it may, for now at least, Colon has some major ramifications. First, it casts into question a goodly number of indictments: any count that doesn't include a mens rea requirement is no good. What's more, that's not something that can be cured by amendment, at least over objection by the defendant: adding an element would certainly "change the identity of the crime," and thus would not be a permissible amendment under Rule 7(D). Finally, since structural errors can't be waived, they can theoretically be raised at any time, and since the error is one of constitutional dimensions, it can be raised by way of a petition for post-conviction relief. Normally, such petitions have to be filed within about six months of the conviction, but I'm not even going to try to predict how the Supreme Court's going to resolve the time requirement. Given all the people serving void prison sentences because they weren't properly advised of post-release controls, and all the people now serving sentences under defective indictments, it's possible that only about 20% of the Ohio prison population should actually be there.
One more comment: this was another win by the Cuyahoga County Public Defenders' Office, which has one of the best and most successful appellate divisions in the state. Public defenders as a group are paid crap, and on top of that they're treated as second-class lawyers by the public they serve and by a not inconsiderable portion of the bench and bar. Colon was a big win for the defense bar, and my hat's off to the gang over the Cuyahoga County PD's office.
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