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What's Up in the 8th

Criminal appellate work isn't for those with self-esteem issues.  It's a lot tougher on your ego than trial work.  Although stats vary, most show that defendants win at trial around 40% of the time; the rate for successful appeals is closer to 10%.  A criminal case can result in a plea bargain, which renders murky "won-lost" distinctions; you don't bargain in an appeal.  Unless you talk to the jury, you never really know why you lost a criminal trial.  In an appeal, it's right there in black and white:  that argument you spent hours researching and honing until it it was an exemplar of cogency and persuasiveness is dismissed as "devoid of merit."  And sometimes the court will even twist the knife, telling you that your arguments were winners, but you still lose because it didn't matter:  any mistake at trial was "harmless error."

And that's what happened to me two weeks ago in State v. Blazer

Blazer had a very good relationship with his 15-year-old niece.  With the help of a lot of vodka, the relationship became too good during an overnight stay.  Sixty may be the new fifty, but fifteen isn't the new eighteen, and Blazer found himself charged with rape under two theories -- force and substantial impairment.

The impairment was definitely not his, we learn at his trial, when during cross-examination of the victim the defense asked to play a tape of a phone message she had left him after the incident, of the kind most people have to dial a 976 number and pay $4.99 a minute to hear.  The prosecution objected that they hadn't been provided the tape in discovery, and the judge excluded it on that basis and on the ground that, since the girl denied leaving the message, it couldn't be authenticated.  The jury acquitted Blazer of the forcible rape, but convicted him of the substantial impairment account.

And that was the rub.  The appellate court had no problem agreeing that the tape wasn't discoverable, and that authentication didn't require an admission by the girl that she'd made it.  (The standard for voice identification is very low; basically, all you need is somebody to say, "yes, I've heard her voice before, and that's it.")  And it would have had no trouble, it tells us, reversing the conviction if it had been for forcible rape.  But "consent is not an element" of the substantial impairment section, and so the tape message was irrelevant.

The problem is that the unseemly details of the offense affect the analysis.  Substantial impairment cases most often arise in the "date rape" scenario, usually involving a woman who had too much to drink and a man who allegedly chose to take advantage of that situation.  Had this case presented such a scenario, it's hard to imagine that a trial judge would have excluded evidence of a subsequent communication from the alleged victim complimenting the defendant on his physical endowment on the grounds that it was irrelevant.

While the result in Blazer is arguably questionable, several others are downright puzzling.  One is State v. GloverGlover drove past three young ladies on his back early one morning, and asked them if they were interested in getting tattoos.  Since none of them was an Ohio State football player, they responded that they were not, and Glover went on his way.  He returned a short while later with another male, also on a bike, who produced a very impressive handgun and demanded they drop everything they were carrying.  (Meanwhile, a bike?  You're robbing people while you're riding a bike?  Bet that gets you a lot of street cred.)  While this was going on, Glover circled around on his bike as though he were acting as a lookout, and the court has no problem affirming his convictions for kidnapping and robbery, finding that evidence to support the kidnapping conviction was sufficient because "the victims both testified they felt scared to move because they were not sure what the gunman would do."  What's difficult to understand is why nobody argued or raised a merger claim.  Just two years ago in State v. Winn  the Supreme Court held that since every robbery implicitly involves some restraint of liberty, kidnapping and robbery are allied offenses, unless there's a separate animus.

The real headscratcher, though, is State v. Turner, which presents a Crawford issue.  Turner was suspected of selling drugs, so the police arranged a buy-bust operation.  The confidential informant approached Turner; the detective monitoring the transaction saw Turner open his jacket as if to show something to the informant, whereupon the informant retreated to the detective's car and told him that Turner had a gun.  At trial, the detective was permitted to testify as to what the informant told him.

The opinion correctly notes that, under Crawford, "a 'testimonial' statement is one made 'under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.'"  That's the last time Crawford is mentioned; from there the court veers into a lengthy discussion of whether the trial judge correctly admitted the statement under the present sense exception to hearsay rule.  Because the statement here was very close in time to the described event, it bore "a high degree of trustworthiness," and thus was admissible under that exception.

That's nice, but that's not the issue.  As Scalia explained in Crawford, that decision has nothing to do with whether the evidence is trustworthy, it has to do with whether confrontation was provided.  As Scalia put it, "dispensing with confrontation because the evidence is obviously reliable is akin to dispensing with jury trial because the defendant is obviously guilty."  If the statement is testimonial, it's inadmissible, regardless of how trustworthy it is or whether it falls within a hearsay exception.  End of story.  The court makes a final bow to Crawford with the conclusory statement that "the CRI could not have expected his statement to be used as evidence at trial."  What, the guy's an informant, paid by the police to snitch on people, and he doesn't expect that what he tells the police is going to be used as evidence?

One of the reasons I'm cheesed off with the opinion in Turner is that I've got the co-defendant, and his case hasn't been argued yet.  (When I read Turner, I actually thought it for a second that it was my case and I'd missed the oral argument.)  So I guess I should anticipate that my self-esteem is going to take another shellacking in a few weeks...


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