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'Tis no longer the season, and some decisions are starting to trickle out of the Ohio Supreme Court; there were two on Tuesday, which I'll talk about next week.  Today, we'll take a look at some recent oral arguments and see what might be happening down the road.

The issue in State v. Dunlap is the mens rea required for gross sexual imposition involving a child under 13.  The 8th District and most other courts had held that the statute was one of strict liability, but those cases concentrate on the age of the child; i.e., if the child's under 13, it doesn't matter whether the defendant knew that, or was reckless about it.  Dunlap's argument on appeal is while strict liability goes to the age of the child, some other mens rea -- recklessness, in Dunlap's view -- applies to the actual act of touching.  The State concedes that strict liability doesn't apply to that, but argues that another section, which defines sexual contact as touching certain body parts "for the purpose of sexual gratification" supplies a purposeful mens rea element.  John Martin, head of the Cuyahoga PD's appellate division, who represented Dunlap, told me that his oral argument (artist's rendition at right) didn't go so well, an acknowledgment akin to a bulletin from Custer at the Little Bighorn admitting that he'd "encountered a few more Indians than I'd anticipated." 

The case served as a reminder of  how much the legal landscape has changed since State v. Colon was handed down back in July of 2008.  It seems that almost weekly some court is called upon to decide what the mens rea is for a particular crime, and whether it should have been included in the indictment.   (That's not my imagination; according to Lexis, the terms "mens rea" and indictment have appeared in the same paragraph in 242 cases since Colon came down a year and a half ago, versus 41 in the ten years prior to that.)  Justice Lanzinger used the oral argument in Dunlap to again bemoan the havoc that Colon has wraught, but that's not likely to change anything.  Regardless, Dunlap's a win-win for the defense:  regardless of which test the court adopts, it's going to be better than strict liability.

The outcome in State v. Speer is harder to predict, and there's a decent possibility that there won't actually be one.  Speer was operating a boat one night near Put-in-Bay when his passenger fell overboard and drowned.  Speer was charged with murder and aggravated vehicular homicide, and convicted of the latter.  One of the jurors at trial had a hearing impairment, and the judge rejected a defense challenge for cause.  The 2nd District reversed, finding that under the circumstances of the case, the juror should haven't been seated:  the prosecution relied heavily on a 911 tape, arguing that Speer's tone and demeanor during the conversation was inconsistent with the idea that the passenger's falling overboard was an accident, or at least consistent with Speer's being reckless in the operation of the boat.  The 2nd noted that while the juror could read a transcript of the conversation, inflections, tone of voice, and speech patterns would have been lost on her.

That argument seemed to receive a sympathetic reception from at least four of the justices.  The state presented a pure "abuse of discretion" argument -- that the trial judge's decision was immune from criticism unless completely aritrary and irrational.  As Lundberg Stratton pointed out, though, at the time the judge made his ruling, he wasn't aware of the argument the State was going to make about the tapes.  The State responded that the defense could have raised the challenge once the prosecutor's opening statement gave them that awareness, leaving unanswered exactly how a party challenges a juror for cause after voir dire is over. 

More problematic for the defense might be a waiver claim.  O'Donnell argued that the defense waived any error by failing to use one of its peremptory challenges on the juror.  The defense had used all its peremptories, however, and  as O'Connor noted, that solves the waiver problem:  if the defense has a valid challenge for cause, it should not have to "waste" one of its peremptories to get rid of a juror who shouldn't have been seated in the first place.  (For obvious reasons, there is a waiver if the defense doesn't in fact use all their peremptories.)  Moyer's argument on waiver is a slightly better one:  he argued that when the tape was played and it became apparent that the deaf juror's inability to hear it was going to be a problem, the defense could have moved at that time for an alternate to be seated in her place.  I'm not so sure I buy into that.  The purpose for an objection is to make the trial court aware of the problem, which the defense did here by raising the challenge.  I don't see it requiring them to pester the judge throughout the trial and remind him of what he should have done in the first place.

Although I'm sympathetic with the defense position, it takes you places you might not want to go.  Couldn't you construct an argument that a blind juror shouldn't be seated because he'd be incapable of observing "body language" that most people consider essential in determining the credibility of a witness?

For that reason, I wouldn't be surprised if the court decides to dismiss the appeal as improvidently granted.  One thing that becomes very clear from watching oral arguments is that the court is keenly aware of its role as a supreme court:  that it is not simply resolving a case, but making a decision which other courts will have to apply.  Quite frequently, some justice will ask during argument, "What rule do you want us to write in this case?"  The problem is that this case is simply too fact-specific to come up with a broadly applicable rule.

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