Goodbye to Colon
Two years ago, in State v. Colon, the Ohio Supreme Court held that the failure of an indictment to allege the appropriate mens rea was structural error, requiring reversal, even though the defendant never raised the issue at trial. After a tizzy fit by prosecutors throughout the state, the court in State v. Colon II "clarified" Colon I three months later, holding that it was prospective only, and was applicable only when the omission led to "multiple errors" throughout trial, namely, that everybody treated the offense as if it were one of strict liability.
To say that the twin decisions had a substantial impact is to grossly understate the situation: panicked prosecutors tried to figure out how to phrase their indictments, and puzzled appellate judges tried to figure out if they'd done so correctly. In the ten years preceding Colon, there were only 19 Ohio Supreme Court and appellate decisions in Ohio in which the words "mens rea" and "indictment" appeared in the same sentence. In the two years since, there have been 326 such decisions.
So on Friday the Supreme Court said the hell with it, and in State v. Horner overruled Colon. Here's what you need to know.
How dead is Colon? Very. We go back to pre-Colon law that an indictment is not defective so long as it tracks the language of the statute. Which means that if the statute doesn't specify a mental state, the indictment doesn't have to, either. And structural error goes bye-bye, too; if the defendant doesn't object to the indictment (and under the rules he has to do so before trial), all but plain error is waived.
Does this affect how a statute's mens rea is determined? Yes, it does, and that's the most unsettling aspect of the opinion. Exactly how much of an effect can be seen by comparing the statutes involved. In Colon, it was the subsection of the robbery statute which prohibits a person from "inflicting, attempting to inflict, or threatening to inflict physical harm on another"; the court held this required a reckless intent. In Horner, it was the subsection of the aggravated robbery statutue which prohibits a person from "inflicting, or attempting to inflict, serious physical harm on another," and the court held that was strict liability. As Justice Lanzinger writes in her partial dissent (she had no problem with the above two points), "to inflict or attempt to inflict serious physical harm. . . implies action on the part of a defendant that requires a mental state of some degree."
In fact, Lanzinger points to the real concern in Horner: the court appears to be moving toward the view that strict liability, not recklessness, is the default mens rea when the statute doesn't specify one. The court looks at two earlier cases, State v. Wac and State v. Maxwell; in both, the court had held that the specification of a mens rea element in one portion of the statute indicated the General Assembly's intent that other portions be strict liability. Section (B) of the aggravated robbery statute, which prohibits trying to steal a policeman's gun, requires a knowing intent; ergo, the omission of any intent element in the remaining sections "plainly indicates an intent to impose strict liability." The upshot is that it's likely that more offenses will be found to be strict liability.
Was this trip really necessary? I've got mixed feelings about Horner. On the one hand, I'm a defense attorney, and Colon helped us; it confused the hell out of prosecutors and trial and appellate judges, and that usually helps defendants. On the other hand, it was bad law, and sooner or later bad law comes around to bite everybody.
The case might also prompt the Supreme Court to revisit its policy of having appellate judges sit as visiting judges. Colon was a 4-3 decision, with a visiting judge sitting in for Justice Cupp, the most reliably pro-prosecution justice on the bench. (Cupp unsurprisingly sided with the majority in Horner.) Last week I mentioned that the swing vote in State v. Kalish, the most significant decision on appellate review of sentencing since Foster, was provided by a visiting judge.
What about Westfield? The numberless hordes of my regular readers know that I've harped for years about the damage wrought by Westfield v. Galatis, the 2003 decision which purportedly set forth a standard for determining when the Supreme Court should overrule a prior case, and in fact created a standard so strict it was virtually impossible to meet. (Example of one of my previous screeds here.) The court has been edging away from Westfield through a number of artifices: for example, in upholding the tort reform laws that previous courts had quashed, the court pretended that the new laws were really differently worded. The effort reached its apogee this year in State v. Bodyke, when the court declared that stare decisis "was not controlling in cases presenting a constitutional question," only to have Justice O'Donnell point out that Westfield's test was partly derived from US Supreme Court decisions concerning the value of precedent in cases involving — you guessed it — constitutional questions.
So what does the Horner court have to say about Westfield? Nothing. Colon is summarily overruled without so much as a word about the standards to be employed in doing so.
This could be the bigger story than Horner. Everybody knows that allied offense jurisprudence is a mess, but stare decisis keeps the court from overruling State v. Rance. Everybody knows that it's impossible to maintain the fiction that sex offender notification and registration laws are "remedial" instead of punitive, and that ex post facto considerations should apply, but stare decisis keeps the court from overruling State v. Cook and State v. Patterson. Everybody knows that making a judgment "void" when a judge fails to properly impose post-release controls at sentencing is a land mine waiting to go off, but stare decisis keeps the court from overruling State v. Bezak.
If Horner really means that the court feels finally unshackled from Westfield's limitations on overruling precedents, Colon isn't the last decision that's going to be deep-sixed.