What's Up in the 8th
The 8th District usually hands down anywhere from six to twelve criminal decisions a week. Sometimes, one or more have a significant impact. Sometimes not. This week not. Still, there are some things we learn.
Like maybe drug dealing isn't as remunerative as it's cracked up to be.
Puns aside, Exhibit A for that statement is the defendant in State v. Conway. From this case we learn two things. The first is the relative futility of deciding to keep your home safe from the police by doing all your drug-dealing on the streets. Conway did that, with several of his liaisons with someone who turned out to be a police informant. Unfortunately, the police had him and his house under surveillance during these times, and on each occasion would see him exit the house after the call arranging the deal was made, go do the transaction, and then return to the house. This, the appellant panel concluded, provided sufficient basis for a judge to conclude that Conway had drugs in his house, and to issue a search warrant.
Some good news for Conway, though. During the search, the police seized two television sets and a Playstation console, and the State seeks their forfeiture, contending they were purchases made with drug money. The appellate court found the evidence to support this insufficient, in light of Conway's income as a "rap musician," which, according to his income tax returns, netted him the princely sums of $9,879 in 2008 and $16,685 the following year. Not quite enough to buy the tattoos, let alone the bling, adorning the duo on our right. One wonders what was more damaging to Conway's street cred: the fact that his rewards from drug-dealing were so paltry he had to take up rap as a second source of income, or that he didn't make anything much from that, either. In any event, at least he gets to play with his Playstation when he gets out of prison in four years.
We also learn that one might want to pay a bit more attention before hiring that home contractor. Several people hired Joseph Sparent to do some painting in their houses; he used that opportunity to wander through their houses stealing stuff. Sparent learns something from this experience, too: this constitutes burglary, not merely theft. As the court explains in State v. Sparent, once he started stealing things, his privilege to be on the premises was implicitly revoked, and he became a trespasser, thus satisfying that element of the burglary statute.
Another thing we learn is that the 8th District is still experiencing some difficulties with the interrelationship between medical treatment and serious physical harm as an element of felonious assault. The 8th had ruled in numerous cases that the victim's simply seeking medical treatment is sufficient to prove serious physical harm, leading to an obvious problem, which I'd mentioned in a previous post: "a precautionary emergency room visit for the purpose of ruling out serious injury would have the legal effect of establishing the existence of one." The later decision in State v. Clopton seemed to clear this up, the majority holding that seeking medical treatment alone is not dispositive of the issue. Last week, in State v. Simmons, the court held that "serious physical harm is sufficiently established by evidence demonstrating that a victim required medical attention."
To be sure, the victim in Simmons required medical treatment: Simmons had hit him in the head with a brick, causing a laceration which required a staple to close, and still produced headaches for the victim at the time of trial. But that's the point; as the Clopton majority noted, in all the cases where the court discussed getting medical treatment, the discussion was unnecessary, because the evidence clearly showed that the victim had suffered serious physical harm. Same thing here. What is "medical treatment"? If the victim had suffered a slight cut and gone to the hospital for a tetanus shot, would that have counted? Why don't we just consider what the victim's injuries are, and leave it at that? To be sure, the fact that the victim required medical treatment could be considered, but it shouldn't be the determinative factor.
We learn a little bit, but not much, about Romell Broom's case. Oh, we learn a lot about him. The details about what happened to him are set forth in the 8th District's decision last week in State v. Broom, and just plugging his name into Google will tell you all you need to know. Broom was convicted and sentenced to death in 1985, and was wheeled into the execution room at the correctional facility in Lucasville on September 15, 2009. There's a protocol the State of Ohio follows in killing people, and it requires three assessments to determine where the IV's should be placed in the defendant's arms so he can receive the lethal injection. The third assessment was never done, and the first two were pretty much botched. The result was that the execution team spent 45 minutes making numerous unsuccessful attempts to insert catheters. After taking a break to huddle for a conference, they resumed. After a total of two hours, they gave up. During that time, Broom received approximately 20 puncture wounds, including one from a needle that was pushed into his ankle. He got a week's reprieve from the execution, which was extended because since then he's been in court, arguing that giving the State a second chance at executing him would be cruel and unusual punishment. His latest attempt is rebuffed; by a 2-1 vote, the panel affirms the trial court's denial of Broom's petition for post-conviction relief, both majority and dissenting opinions presenting thoughtful arguments.
It does take quite a bit of digging to find out what happened to Broom's victim, a 14-year-old girl named Tryna Middleton. That's a picture of her on the right. Most of the Google hits make only a passing mention of her. The Supreme Court decision affirming Broom's conviction makes no virtually no mention of the facts of the case, nor do the twenty-some other decisions in the case -- the appeals, the petitions for post-conviction relief, the habeas proceedings... I had to go back to the original appellate decision in 1987 affirming his conviction and sentence to find out exactly what happened to Tryna.
There's a little irony here, because Tryna learned something about puncture wounds in the last seconds of her life. Tryna and two of her friends were walking down the street the night of September 21, 1984, when Broom ran up and tried to grab two of the girls. One was lucky, and got away. Tryna didn't. Broom threw her in his car and took off.
The next morning, the police got a call about a body in a parking lot about a mile away. It was Tryna. She'd been raped, vaginally and anally, then stabbed seven times in the chest, four of them in the heart. There were also two defensive wounds on the inside of her arms; she died fighting her attacker.
That's not to defend what happened to Broom, or condone it. His botched execution goes a long way toward disproving the apparent conservative belief that government can't do anything right except execute people; it can't even do that. The spectacle of state employees stabbing needles into a man for over two hours so that they can kill him is simply repellent in a modern civilized society.
But it's not because Romell Broom deserved any better. He didn't. The rest of us do.