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What's Up in the 8th

Coming soon to a Supreme Court near you (namely, the one in Ohio):  the 8th District's decision last week in State v. MoleThe case has what is considered "sex appeal " in appellate circles for Supreme Court review (which says about all you need to know about appellate circles):  it declares a statute unconstitutional , and it's on an issue of first impression.  Plus, it's got actual sex appeal:  it involves the sexual battery statute.

That statute, RC 2907.03, does two things:  first, it criminalizes non-consensual sexual conduct that falls short of rape, and second, it criminalizes "consensual" sex acts which really aren't consensual.  As originally enacted, the statute prohibited sex between parents, guardians, or custodians and their children or charges.  In 1994, it was amended to include teachers, coaches, and scout leaders.  Subsequent amendments brought in mental health professionals, clerics, and employees of detention facilities where the victim was a detainee.  All of those had two common threads:  the victim was a minor, and the offender possessed some degree of power or authority over the victim.

Mole tackles the 2009 amendment to the statute, which makes it illegal for a peace officer to have sex with a minor when the peace officer is more than two years older than the minor.  The argument is one of equal protection.  Normally, sexual conduct with minors, at least 16- and 17-year-old ones, is perfectly legal.  The statute makes that conduct illegal for peace officers.  The question then becomes whether that classification scheme is permissible.

If the classification is "suspect"-- it's based on race, religion, national origin, a few others -- the statute is presumed unconstitutional.  But police officers aren't a suspect classification, so the state need only show a rational basis for the classification.  One judge finds that the definition of "peace officer" is too broad; it would include not only police officers, but a forest officer and a tax investigator.  He and another judge find that the failure of the statute to show any logical connection between the offender's status and the victim's position is fatal; while "the legislature has amended the sexual battery statute to add categories where an offender has authority or control over the intended victim," the "peace officer provision "stands alone among the subsections in that it requires no intent on behalf of the offender and no relationship or occupational connection between the offender and the victim."

Ordinarily, it would be hard to predict how the Supreme Court would handle this; the 8th District's opinion treats this as a facial, rather than an "as applied" challenge.  The former requires a showing that the statute would be invalid under any circumstances, and given that the "victim" in Moles didn't even know that he was a police officer, an argument that the statute had no basis as applied to Moles might fare better.  The problem is that it might be hard to divorce the facts from the legal issues especially in this context.  The dissent notes that the statute was amended "as a response to a sexual relationship between a minor and a police officer that caused a loss of respect for the officer and his department among the local community."  Hopefully, the Supreme Court will recognize that the goal of a criminal statute is to punish people for victimizing others, not to prevent people from "losing respect" for police officers.

As has been noted on numerous occasions, before trial the justice system is interested in the result; after that, it's interested almost entirely in the procedure used to arrive at that result.  The defendants in Richmond Heights v. McEllen and State v. Masters learn that lesson to their sorrow.  McEllen pled guilty to domestic violence in 2000, and 12 years later sought to vacate his plea because the conviction kept him from getting a job, and besides he was intoxicated at the time he made the plea.  The first claim falls into the category of "so sad, too bad," and although the rule on vacating pleas doesn't have a time limit, "an undue delay between the occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a motion is a factor adversely affecting the credibility of the movant and militating against the granting of the motion."  The court figures that McEllen must have sobered up sometime during the past twelve years, and should have moved to vacate the plea then.

Masters uses the vehicle of a post-conviction relief petition to set aside his 2010 conviction, an effort made all the more forlorn because the 180-day time limit for filing it has long passed.  That means Masters must show that the US Supreme Court has recognized a new federal or state right that applies to him, and renders his conviction invalid.  Masters tries to hop aboard the Missouri v. Frye train, claiming that his lawyer didn't tell him of a pretrial plea offer by the State of a recommended sentence of six years (Masters got eight).  The State denies any such offer was made, but no matter; the court holds, as it did a few months ago in State v. Hicks, that Frye doesn't create a new Federal right, it simply clarifies the right to counsel in the plea-bargaining context.

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Comic relief is provided by Cleveland v. Turner.  The police find Turner's car stopped in middle of road with the ignition off, and Turner "seated in the driver's seat, making car noises and moving the steering wheel as if he were driving."  The police make cop noises and arrest him for DUI, basing it on claim that he's high on drugs.  But the 8th District makes appellate noises and finds that the evidence was insufficient to show that Cheech -- er, Turner -- was baked, because there were no drugs found on his person or in the vehicle.  The lesson here is apparently that if you're going to smoke a bowl while wending your way through the city streets, make sure you smoke it all, and toss the bowl when you're done.

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