The Supreme Court's recent decision striking down the
Defense of Marriage Act was decided by a 5-4 margin, with Justice Anthony Kennedy casting the deciding vote (and writing the majority opinion). That's not an unusual position for Kennedy; in the Court's nine 5-4 decisions this past term, Kennedy was on the winning side in eight of them. That was slightly better than he did in the 2011 term (in the majority in twelve of the fifteen 5-4 decisions), 2010 (fourteen of sixteen), 2009 (twelve of sixteen), and... well, I think you can see the pattern. And while Kennedy has more frequently sided with the conservatives, he's been a solid vote for gay rights, authoring the opinions in Romer v. Evans (striking down a state law which sought to prohibit municipalities from extending anti-discrimination laws to sexual orientation) and Lawrence v. Texas (holding Texas' sodomy law unconstitutional).
Now, here's food for thought: the reason Kennedy wound up on the Court was because the Democrats, fresh from regaining the Senate in the 1986 midterms, defeated Robert Bork's nomination to the Court the following year, and Howard Baker, Ronald Reagan's chief of staff, persuaded him to nominate a more moderate justice -- Kennedy.
I'm going to finish up with some analysis of the Court's last few decisions on criminal law later this week, and next week I'll have my annual recap of the Court's criminal law decisions of this past term. This was also a big year for 4th Amendment decisions -- no fewer than five of them -- and I'll have a post on that later this week, too.
I won't be doing any posts on Ohio Supreme Court cases; the court hasn't issued an opinion since June 18. It did accept three new criminal cases for decision, one of which looks fairly interesting. Let's say a judge sentences a defendant to community control sanctions, and also makes an error in the sentence, for example, in awarding restitution over the defendant's objection. If the judge subsequently revokes the sanctions and imposes a prison sentence, can the defendant appeal the restitution issue at that point, or did he need to appeal from the original sentencing entry?
Okay, I said "fairly" interesting. Let's check out the courts of appeals to see if we can top that. I'm betting we can.
Take, for example, the 6th District's decision in State v. Rybarczyk. While it's commonly believed that the police can lie to a defendant to get a confession, there are limits to that. Two detectives had approached Rybarczyk and asked to speak to him concerning the rape of a four-year old child. During the two-hour interview, which took place in the unmarked police car in the parking lot, the detectives falsely told Rybarczyk that his DNA had been found on the child, and told him that if he didn't confess, he'd do ten to fifteen years in prison, but that if he did, he'd get probation.
The court never addresses a potential Miranda violation, probably because it wasn't a custodial interrogation: the windows were down in the car, and the doors unlocked. But a confession can still be held invalid if it's involuntary, and that's what the court finds here. The opinion has numerous cites to other cases which have come to the same result. It's a must-read if you've got a case involving police shading the truth in an effort to get your client to confess.
One more thing. A confession can be thrown out as involuntary even if the defendant received his Miranda warnings and waived them. That's what the trial court found had happened in State v. Strickland, but the 2nd District reversed, concluded that the main basis cited by the trial court, that the detectives had lightly touched Strickland's leg during the interrogation, and that they'd told him that other co-defendants had implicated him, wasn't sufficient to invalidate the confession. The panel noted that the latter was the "type of claims by police routinely are permitted by reviewing courts."
In State v.Barnes, the 11th District reverses the defendant's vandalism conviction -- Barnes had kicked out the window of a police cruiser -- on the basis that his counsel was ineffective for not requesting an instruction on the defense of necessity. The court notes that such a defense will be "rare," and lists the requirements for showing it. How rare? Here's what happened to Barnes: when the police responded to a domestic disturbance, they saw Barnes and a woman arguing. When they tried to interview the woman, Barnes, "appearing both agitated and inebriated, injected himself into the investigation." The officer unsuccessfully tried handcuffing Barnes, then pushed him down to the ground, planting his face in dog excrement, then pepperspraying him. The officer then took Barnes back to the station, but instead of taking him into the booking room, left him in the cruiser and went to the dispatch area to work on his report. After 45 minutes of being left unattended in the cruiser, Barnes, with the pepper spray still burning his face, broke the window, slashing his leg in the process.
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