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Three arguments in the OSC

Appellate lawyers will usually tell their clients that you can't tell what a court's going to do based just on the oral argument.

Oh, yes, you can.  The Ohio Supreme Court swung back into action over the past couple weeks, holding argument in three criminal cases, and if there's a surprising outcome when the decisions come down in a few months, I'll be... well, surprised.

First up was State v. Mansaray, the conclusion of Yanko Mansaray's odyssey through the criminal justice system (Links are to videos of the argument.)  US Marshalls, armed with an arrest warrant for Rodney Williams, heard that Williams might be staying in Mansaray's house, so they went over there and wound up searching it for Williams, but in the process finding substantial quantities of drugs.  Mansaray made his first appearance here when the 8th District that the search was bogus, and reversed his conviction. 

Whereupon Mansaray turned around and sued the State for wrongful imprisonment.  As I explained when I wrote about that, up until 2003 you had to show that you were actually innocent to get an award for being wrongfully imprisoned.  That year, though, the legislature added another provision:  you could get compensation if you could show that "subsequent to sentencing and during or subsequent to imprisonment, an error in procedure resulted in the individual's release."  The 8th District agreed that the trial court's wrongful denial of the motion to suppress was an "error in procedure" that resulted in Mansaray's release, and entitled him to money.

Terry Gilbert, Mansaray's attorney, had the better of the logical argument.  The State's main contention, that the statute should be interpreted to mean that the "error in procedure" had to occur after sentencing, makes no sense; it's virtually impossible to imagine such a scenario.  But acceptance of Gilbert's position means that a drug kingpin who's brought down by a search which is later judged illegal fits into the definition of someone who's wrongfully imprisoned, and there was no indication that any of the justices were buying that.

I was looking forward to State v. Anderson, because it's got a good hook:  the court will decide whether Anderson gets tried for murder -- for the sixth time.  The tally so far is mistrial, reversal, hung jury, hung jury, mistrial.  But the oral argument was a desultory affair, because the question was not the broad one of the fairness of subjecting Anderson to six trials, but the procedural question of when he could raise the argument that it wasn't.  The trial court denied Anderson's motion to bar further retrial on double jeopardy grounds.  The law in Ohio is that such a denial is not a final appealable order, but the 7th District agreed that it could hear Anderson's appeal, so the State appealed that. 

Ohio law on this point makes no sense.  One of the purposes of the Double Jeopardy Clause is to prevent the defendant from subject to the ordeal of a second (or sixth) trial, and it's hard to vindicate that purpose when you have to go through a second (or sixth) trial to raise the issue on appeal.  Just a few years ago, the Supreme Court overturned an earlier decision saying that denial of counsel was not a final appealable order, for that same reason.  But the big picture was lost in the details.  The decision, for that matter, will be largely pointless:  the Federal courts have held that Ohio's bar to appeal potentially denies a constitutional right, and Anderson's claim can be just as easily made in Federal habeas.

Jason Romage was moving into a new residence, saw some kids playing in the street, and offered to give them a few bucks to move boxes from his car to the apartment.  They declined, he went on his way, but was nonplussed to find himself charged with criminal child enticement, which provides:

No person, by any means and without privilege to do so, shall knowingly solicit, coax, entice, or lure any child under fourteen years of age to accompany the person in any manner, including entering into any vehicle or onto any vessel, whether or not the offender knows the age of the child. . .

Romage claimed that the statute was unconstitutional, and the 10th District agreed, as have the 2nd, 8th, and 9th.  The briefing and a lot of the argument last week in State v. Romage centered on the constitutional issues, the concepts of free speech and the doctrine of overbreadth, with the State advocating that the court adopt a narrow construction of the statute and hold that "solicit" involved more than "simply asking."

But this time the big picture did come out, and the big picture here is that the law is stupid.  There are two other provisions in the section, one making it illegal for someone to do this with a sexual motivation, the other to do it for "any unlawful purpose," and that seems to be right.  Justice French lobbed some softballs at the prosecutor, regarding the interest of society in protecting children, but it was fairly clear that the State will be hard-pressed to find four justices who will not find a problem in branding somebody a criminal for doing what Romage did. 

  *   *   *   *   *

This will be my last post for next couple of weeks.  I'm off for some sun and beach time.  I'll be back here on November 4th, with a bitchin' tan, the batteries fully recharged, and a righteous attitude.


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