Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

Word play

Perhaps no phrase is more indicative of lawyers' proclivity for engaging in semantical gymnastics than former President Clinton's response in his deposition in the Paula Jones sexual harassment suit: "It depends on what the meaning of the word 'is' is." Well, the gang down in Columbus hasn't solved that riddle, but last week, in State v. Swidas and State v. Dibble, the Ohio Supreme Court did resolve the meaning of two words: "from" and "victim."

According to Michael Swidas, Corty Altizer and and Joe Naples were giving him a hard time at Horvath's Pub, so when they followed him out to his car and charged him, he pulled a gun out from under the front seat and shot them. Their story was quite a bit different, and the jury bought theirs, acquitting Swidas of attempted murder but convicting him of two counts of felonious assault, plus the attendant gun specifications. The latter included the three-year spec for "brandishing" a firearm, plus a five-year spec if the crime "was committed by discharging a firearm from a motor vehicle." (And if you're wondering, no, they don't merge.)

But let's go back to the stories. They diverged widely in many details, but agreed on one: at the time he fired the shots, Swidas was standing outside of his car. The open car door was between him and the other two, Altizer describing Swidas as using the door "like it was a shield." And they all agreed that after the shots were fired, Swidas jumped in the car and drove off.

Whether that consituted "discharging a firearm from a motor vehicle" was the issue, but the courts below seemed to have little trouble with it. The trial court rejected the argument that the shooting didn't meet the definition, holding that if the legislature had intended that the shooter had to occupy the vehicle, or be in or on it, it could have written the statute that way. The 11th District came down a bit more narrowly, asserting that testimony showed that Swidas was leaning on the vehicle while he fired the shots, and concluding that his being in "physical contact" with the car was sufficient to fall within the specification.

The Supreme Court took the case in on a due process void for vagueness challenge, and I'm not particularly enamored of that argument. The doctrine is based on the notion that ordinarily law-abiding people shouldn't have to guess at whether their conduct complies with the law, but it loses much of its force where the conduct isn't law-abiding to begin with; when you shoot at people you're not supposed to shoot at, the argument that it wasn't completely clear whether you were shooting at them "from" a motor vehicle leaves something to be desired. The Supreme Court thought so, too, rejecting analysis of the constitutional issue in favor of a simple pronouncement that "from" means the person has to have at least some part of his body in the car.

When I first read the case, I was tempted to dismiss it as simply a statement of the obvious: "from" means "from" -- wow, what a concept. It's a little more than that, though; there's at least an argument to be made in support of the state's position that the specification contemplates a larger role for the car as simply the location from which the shots were fired. It's not a good argument, though, and there are several noteworthy aspects of the Swidas opinion. It demonstrated that the court was willing to strictly analyze a state criminal statute and apply the rule of lenity -- that any ambiguity has to be resolved in the defendant's favor. And the opinion was unanimous. Of course, it probably didn't hurt that, as O'Donnell drew out from the prosecutor in oral argument, nullification of the specification means that Swidas still has to do 17 years of his original 22-year sentence.

The court's willingness to be strict in definitions didn't carry over to Dibble. Det. Wuertz went to a judge seeking a search warrant for Dibble's home and his computers and cameras. The affidavit relayed that Dibble, a teacher at a private school, had inappropriately touched E.S., one of his students. E.S. was accompanied to the police station by E.K., who related that Dibble had also inappropriately touched her, and taken pictures of it -- after she graduated from high school. This would be the central fact of the case, because Wuertz's affidavit referred to both girls as "victims." The trial court found that since the conduct with E.K. had occurred after graduation, it wasn't illegal, and the reference to her as a "victim" was false and misleading. The Supreme Court's decision in Franks v. Delaware requires that false information in an affidavit must be excluded in determining whether probable cause exists, and since E.K. served as the only basis for the warrant for the home -- E.S. said nothing about pictures being taken -- the warrant was invalid.

The 10th District affirmed in split decision, but the Supreme Court reverses, 6-1. The basis for the decision is that the trial and appellate courts were using a "hypertechnical" definition of "victim"; as the court's syllabus advises, the court should have taken into account "the nontechnical languages used by nonlawyers." Wuertz testified that he considered E.K. a victim because Dibble had used the same "grooming" techniques with her while she was a student -- gaining her trust, designating her as his "aide," becoming a "father figure" -- as he used with E.S. The dissenting judge in the appellate decision had argued that "victim" has a broader meaning than simply "a person who is the object of a crime," and that the laymen's definition of the term could include a young girl who'd been manipulated. The Supreme Court agreed.

I've got problems with that. While terms shouldn't be given a hypertechnical interpretation, this was not a discussion among laymen; this was a detective seeking to obtain a warrant from a magistrate. His use of the term "victim" in that context was most certainly intended to mean "a person who is the object of a crime," rather than to launch a discussion of the metaphysical aspects of victimhood.

There's a rejoinder to this, and the court makes it: since the affidavit clearly specified that the inappropriate touching of E.K. took place after her graduation, the issuing judge could not have deemed her to be a victim of any criminal offense, and thus could not have been misled by the categorization of her as a victim. But this leads to Pfeifer's point in dissent: the discussion of whether the statement about E.K. being a victim was false or misleading is beside the point. Everybody agrees that the information relating to E.S. did not establish any probable cause for the search of Dibble's home. If everybody agrees that the information about Dibble's relationship with E.K. describes no crime, and thus provides no basis for a search, what's left?

Search

Recent Entries

  • May 22, 2017
    Case Update
    Is SCOTUS looking for a forfeiture case? Plus, appellate decisions on expungement and restitution, plain error, and what a judge has to tell a defendant about sex registration
  • May 19, 2017
    What's Up in the 8th - Part II
    Decisions on lineups and prior calculation and design, and two out of eight (eight!) pro se defendants come up winners,
  • May 17, 2017
    What's Up in the 8th - Part I
    Taking a first look at some of the 8th District's decisions over the past two weeks
  • May 16, 2017
    Case Update
    Stock tips, Federal sentencing reform goes dormant, schoolbag searches, and the retroactivity of State v. Hand
  • May 8, 2017
    Case Update
    Death in Arkansas, a worrisome disciplinary decision, and appellate cases on speedy trial, arson registration, use of prior testimony, and the futility of post-conviction relief
  • May 2, 2017
    What's Up in the 8th
    Nothing but sex
  • May 1, 2017
    Case Update
    SCOTUS closes out oral argument for the Term, the Ohio Supreme Court has seven of them this week, and we report on a decision where you'll probably want to play Paul Simon's "Still Crazy After All These Years" in the background while you read about it
  • April 26, 2017
    MIA
    Like Mark Twain, rumors of my demise have been greatly exaggerated. Except I am pretty sure he's actually dead, while I am not, and for that matter, nobody's spreading rumors that I am. Great lead, huh? The nice thing about...
  • April 20, 2017
    The Supreme Court takes a look at the trial tax
    And you thought this was the week you only had to worry about income taxes
  • April 18, 2017
    What's Up in the 8th
    Remembering Warren Zevon, and the Fourth Amendment lives