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Raising the white flag?

Not two weeks after I get done with my "Year in Review -- Allied Offenses" post, and here we have another oral argument in the Ohio Supreme Court on allied offenses, another lawyer standing in front of the justices and telling them that "the citizens of Ohio are not well served" by Ohio's jurisprudence on the subject, and urging them to overrule State v. Rance. 

Except this time, it was the prosecutor making those arguments.

The case before the court, State v. Harris, involved a guy who had robbed three people at gunpoint, his accomplice shooting two of them.  Harris wound up being convicted of three counts of aggravated robbery, three counts of robbery, and five counts of felonious assault (three with a gun, two causing serious physical harm).  The 1st District had affirmed that result (and the 99-year prison sentence), but that was before the Supreme Court's latest venture into the allied offenses thicket, in State v. Cabrales and State v. Brown.

Despite it being a case out of Hamilton County, John Martin of the Cuyahoga County PD's office argued it for the defense.  John's about as good an appellate lawyer as you're going to find, spending almost as much time in front of the Supreme Court as Lindsey Lohan does in rehab.   He came up with a well-presented, nuanced argument that the court should use Judge Whiteside's concurring opinion in the 1988 case of State v. Blankenship as the test for allied offenses(I'd argued the same thing in a post I did back in September.  And no, he didn't get it from me.  John has about as much need to read my blog as Warren Buffet has to scour the Internet for stock tips.)   Whiteside's approach would focus on the conduct, rather than the elements of the two crimes.

John probably felt pretty good when he sat down, but he must have felt even better a few minutes later as he listened to the prosecutor one-up him and argue that the court should overrule Rance and go back to Newark v. Vazirani.  Vazirani simply required the trial court to determine whether the elements of the two offenses were such that the commission of one would result in the commission of the other under the facts of the case.  Rance, which overruled Newark, requires the same comparison, but in the abstract; the particular facts are ignored.

There's a possibility that the prosecutor simply went rogue, but that's not likely.  After all, this was an argument in the Ohio Supreme Court, which is videotaped.  You can watch it here, just like his supervisors can, so unless he decided it was a good time to join Ohio's exponentially growing unemployment lines, I have to figure that he had approval from his higher-ups.  And it's not hard to understand why:  as he pointed out, in the ten years he's been a lawyer, the court has enunciated five different tests for allied offenses.  That's not good for anyone.

Of course, this doesn't mean that we should start talking about Rance in the past tense.  Justices Cupp and O'Connor mustered a somewhat pained defense of the decision, and the court hasn't flat-out overruled a prior case since its ill-advised decision five years ago in Westfield v. Galatis, which established an almost insurmountable obstacle to overcoming the effects of stare decisis.  (Discussed here.) 

But the dance with Rance is becoming vaguely reminiscent of Weekend at Bernie's, with the plot focused on increasingly outrageous efforts to fool people into believing that Bernie isn't really dead.  Rance is.  And if four justices don't realize it, at least one prosecutor does.

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