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Reconsidering Colon

I know, it's the day for the Case Update, but we'll have to save that for tomorrow.   While I was chillin', the Ohio Supreme Court took another look at its decision a few months back in State v. Colon, in which it reversed a conviction because neither the indictment nor the jury instructions specified a mens rea requirement the defendant's alleged crime of aggravated robbery.  I discussed the case here, and found the opinion problematic in several respects, particularly its holding that the failure to specify the intent element was a "structural error." 

My reaction paled in comparison to that of the various county prosecutors, whose response bordered on the apoplectic:  an emergency meeting was held in Columbus, resulting in a decision to ask the Court to reconsider the case.  The Ashtabula County Prosecutor was so distressed he felt compelled to write a letter to Judge Grendell of the 11th District telling her that "any support that the 11th District could provide would be greatly appreciated."  His plea went unrequited; a check of the docket for Colon fails to reveal the filing of an amicus brief by the 11th District on behalf of the prosecutors.

The Supreme Court doesn't grant motions to reconsider lightly, although it's not unprecedented.  (The most famous example was probably last year's decision in State ex rel. Gross v. Industrial Commission, discussed here, in which the court had denied workers comp benefits to an employee by a 5-2 vote, then turned around a few months later and reversed itself by an identical 5-2 margin.)  Last Thursday, the court decided that Colon warranted some additional treatment

The prosecutors' angst over the original decision was primarily prompted by the court's declaration that the failure to include the mens rea requirement in the indictment was a "structural" error, surviving despite a failure of the defense to object at trial.  This created the possibility that legions of defendants whose convictions had long since been finalized could file delayed appeals or petitions for post-conviction relief seeking to reopen their cases.  In Thursday's decision, the court slammed that door shut:

A new judicial ruling may be applied only to cases that are pending on the announcement date. The new judicial ruling may not be applied retroactively  to a conviction that has become final, i.e., where the accused has exhausted all of his appellate remedies.

Therefore, the rule announced in Colon I is prospective in nature and applies only to those cases pending on the date Colon I was announced.

Indeed, the court seemed to back off the "structural error" analysis.  It was not merely the defective indictment which created the problem, but the fact that "multiple errors at the trial follow the defective indictment":  both sides treated the "serious physical harm" element as being one of strict liability, and the court's jury instructions made no mention of an intent element, either.

Whether this is good law is another matter.  Normally, structural errors are automatic grounds for reversal because they so infect the trial that any confidence in the outcome is undermined.  Denial of the right to counsel, for example, is always structural:  the participation of counsel is so fundamental that it's instrinsic to a fair outcome, and it's impossible to measure the denial under a "harmless error" analysis.  Here, as Justice O'Donnell points out in dissent, the majority seems to be suggesting that something can become structural error depending upon what happens later in the trial.  Nonetheless, the court upheld its initial result, by the same 4-3 result, each justice aligned the same way, as in Colon I. 

So what's the net result of Colon II?  Basically, the effective neutering of Colon I.  The majority falls all over itself stressing the "unique" facts of the case, and in case anyone missed the message, concludes the opinion by emphasizing "that the syllabus in Colon I is confined to the facts in that case."  Bottom line:  unless you have a situation precisely on point with Colon -- the indictment fails to include a mens rea element, both parties proceed through the trial as if there isn't one, and the court doesn't include one in its instructions to the jury -- Colon doesn't apply.  Given that the Ohio Judicial Conference has already issued revised jury instructions to make them Colon-compliant, the case is pretty much relegated to the status of a dead letter.

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