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Right to counsel; Bodyke, continued

Tip O'Neill, the Democratic Speaker of the House during the Reagan administration, once said that his most important job requirement was the ability to count to 218, which, of course, was a majority of the House.  For a lawyer arguing a case before the Ohio Supreme Court, the arithmetical challenge isn't nearly as steep:  you only have to count to four.  When you're a prosecutor, though, and you're standing there playing whack-a-mole with Justice Terry O'Donnell and Chief Justice Maureen O'Connor, two normally reliable conservative votes, and you're the mole, you know you're in trouble.

That's the position one of the appellate attorneys from the Cuyahoga County prosecutors office found himself in last week during the argument on State v. Chambliss.  The case involved, shall we say, an unusual set of facts.  On the day of trial, the attorney for one of the three defendants told the judge that he'd never received the search warrant and affidavit in the case, that this prevented him from determining whether  a motion to suppress was warranted, and that he therefore couldn't represent his client effectively.  Believing that the attorneys were angling to position themselves for an appeal on ineffective assistance grounds, the judge took a simple tack:  he removed the attorneys, who'd been retained, and remanded the defendants to jail.

The 8th District vacated the remand three days later, and on appeal ruled that it was improper, since it required a showing that there'd been a change in circumstances since the original bond was entered, and there wasn't any here.  On the question of whether the judge erred in removing defense counsel, the court punted on the basis of a 1994 Ohio Supreme Court decision holding that removal wasn't a final appealable order:  the defendant couldn't appeal it until he'd gone through a trial with his new attorneys.

As I'd noted when I blogged about the 8th District's decision, this didn't make much legal sense in light of the US Supreme Court's decision in 2006 in US v. Gonzalez-Lopez, where the Court held that denial of retained counsel of choice is "structural error."  As the 8th District noted, the state's argument that removal of counsel was not a final appealable order put the defendant in a no-lose situation:  if he went to trial and was acquitted, that was fine, and if he went to trial and lost, that would result in an automatic reversal.  The prosecutor tried his best to defend the judge's decision, which was a hard sell; as O'Connor pointed out, what happens when the next attorney says he can't adequately represent his client when he doesn't have the information to do so?  The prosecutor finally took refuge in the ultimate sanctuary, arguing that while the judge's decision might have been wrong, it wasn't an abuse of discretion.  That raised the interesting question of what standard is used to review a judge's decision in that regard, but given some of the language in Gonzalez-Lopez about the importance of the right, it's not clear that appellate courts will give trial judges the normal latitude of discretion in those matters.

From a policy standpoint, too, it's difficult to see why the appeal should be deferred until after the defendant's trial with his new attorneys.  As several other justices pointed out, what happens if the defendant gets his conviction reversed, but has exhausted his financial ability to hire private counsel?  How is his right to retain counsel of his choice vindicated?

While the outcome of Chambliss is easy to predict, from the tone of the questioning, the state didn't fare much better in the argument in State v. Williams.  Last year in State v. Bodyke (oral argument discussed here, decision here), the court held that the sexual offender reclassification scheme of the Adam Walsh Act couldn't be applied to offenders who'd been classified under Megan's Law, the AWA's predecessor.  Left unresolved were the other challenges to the AWA, chiefly retroactive and ex post facto arguments.

Those are clearly presented by Williams.  At the time he committed the crime -- sexual conduct with a minor -- in May of 2007, he would have been classified by operation of law as a sexually-oriented offender, with a 10-year registration period.  He wasn't convicted until January of 2008, though, by which time AWA had gone into effect.  The result?  He was classified as a Tier II offender, with a 25-year registration period. 

Whether AWA can be applied retroactively in this manner turns on the issue of whether the Act is deemed to be punishment.  In previous cases involving predecessor registration laws, State v. Cook and State v. Ferguson, the courts held that such laws are merely "remedial," rather than punitive.  But that fiction is increasingly hard to maintain.  While the decision in Cook in 1998 was unanimous, a decade later only four votes, a bare majority, could be mustered to support the retroactive application of a modification of Megan's Law.

Six of the justices who decided Ferguson are still on the court:  O'Connor wrote the majority opinion, joined by Cupp and O'Donnell, while Pfeifer, Lundberg Stratton, and Lanzinger dissented.  The late Chief Justice Moyer, who sided with the majority, has been replaced by the court's lone Democrat, Yvette McGee Brown, and she gave no indication of supporting a retroactive application of the AWA.

Nor did any of the three dissenters in Ferguson indicate that they were experiencing any buyer's remorse over their decision in that case.  One problem with the state's case is that the facts were horrible from their vantage point.  Williams, then 19 years old, was prosecuted for having consensual sex with this 14-year-old girlfriend.  As Lundberg Stratton pointed out, he now faces the possibility of people checking out the sex offender website a couple of decades from now and seeing that he was convicted of having sex with a minor.  That assistant attorney general assured the court that the relevant information -- Williams' date of birth and the date of the offense -- would be found on the web site to place the crime in context.  As Lundberg Stratton pointed out, that might require a bit more math than a lot of people feel constrained to do.

The second problem is that the issue could extend to far more people than simply the few who committed the crime before AWA took effect, but were convicted after.  The Ohio General Assembly is presently considering HB 77 which gets around the separation of powers problem in Bodyke: it requires courts to scour their records to determine the identities of all sex offenders who were classified prior to AWA, hold a hearing, and reclassify them according to the Tier levels. 

I may be overly optimistic, but when I counted up the justices who'd vote for the state in Williams, I didn't get to four.

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