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What's Up in the 8th

Okay, here's the situation.  You're the county prosecutor, and you've made it one of your big priorities to prosecute the companies running Internet cafes, which feature on-line gambling.  In fact, your lead prosecutor on the subject is presently engaged in a hearing on one of the cases, dealing with whether the lead detective in the case put false information into a search warrant affidavit.  You learn that lobbyists representing casino interests, which regard the Internet cafes as competition, have arranged for a hearing before an Ohio Senate committee which is considering a bill to ban the cafes.  The lobbyists want your lead prosecutor to come down to Columbus (in the middle of the trial) and testify before the committee, and to bring along the lead detective whose integrity is presently being challenged in the court hearing.

Is this a

    • Good idea?
    • The dumbest thing you've ever heard of?

The 8th District, in State v. Cornick, chooses Door B, but nonetheless reverses the trial judge's decision to disqualify the lead prosecutor.  The judge had decided that the prosecutor's appearance at the Senate hearing created an "appearance of impropriety," but we learn that this phrase applies to judges, not lawyers.  (In fact, the phrase doesn't appear at all in the new Professional Code of Conduct which replaced the Code of Professional Responsibility several years ago.)  The defendants also claim that the prosecutor made statements at the Senate hearing in which he "publicly suggested the Defendants were guilty as charged," but the panel notes that this is somewhat less than a shocking development in the annals of Anglo-American law:  prosecutors routinely claim that the people they just indicted are guilty, or they probably wouldn't have indicted them..

In State v. Richardson, we learn that the element of the burglary statute that a person "was present or likely to be present" is more demanding than we might have thought.  The victim in Richardson comes home from work to find that her apartment has been burglarized.  Richardson is identified though the building's video surveillance system, gets convicted of second degree burglary, and gets maxed out at eight years for that, with six years for a repeat violent offender spec tacked on.  But there's an abundance of case law holding that when a person is at work, unless she occasionally goes home during her working hours, she's not "present or likely to be present" for a burglary.  The court modifies the conviction to a third degree felony burglary, which has all kinds of beneficial effects for Richardson:  he now faces a maximum of three years in prison, and the RVO spec goes away, too.

Perhaps the most significant of the week's opinions is State v. Smith, which involves the issue of when a defendant charged with felonious assault is entitled to a jury instruction on the inferior offense of aggravated assault.  The difference between the two, of course, is provocation (which is the same difference between murder and voluntary manslaughter), and it involves both an objective and subjective prong.  The first prong is whether provocation was objectively "sufficient to arouse the passions of an ordinary person beyond the power of his control"; the subjective prong is whether defendant was "actually under the influence of sudden passion or in a sudden fit of rage."  Smith gets tripped up on the latter; Smith testified, and there was nothing in his testimony to suggest that he was acting out of rage.

In fact, he testified that he acted in self-defense, which leads to the more troubling portion of the court's opinion:  that "the mental states of fear as required for self-defense and rage as required for aggravated assault are incompatible."  This might be interpreted as a bright-line rule; in fact, the court cites several opinions from other districts which have held that instructions on both self-defense and aggravated assault weren't appropriate.  But the inquiry is fact-dependent; six years ago in State v. Garltic, the 8th held that instructing on both is permissible where the evidence warrants it.  And that's especially true, as the Smith court acknowledges, where "the circumstances are such that the defendant exceeded the amount of force necessary for his defense, out of passion or rage." 

Finally, we learn something about impeaching your own witness.  That's a no-no unless you can show both surprise and affirmative damage, some have thought, but as the court explains in State v. Powell, EvidR 607 prohibits you only from using a prior inconsistent statement to do so. 

We also learn from Powell that prosecutors are a more literate lot than I'd thought.  My acquaintance with them has led me to believe that their poetic interests are inclined toward poems involving the young man from Nantucket, but in Powell, a double-murder case, the prosecutor tells the jury, "A murder is unique in that it abolishes the party it injures so that society has to take the place of the victim and on his behalf demand atonement," and we learn that's from a poem by W.H. Auden.  More troublesome - the court's words - was the prosecutor showing pictures of the victims, with their dates of birth and death, to the jurors in closing argument, while telling them to think of the two victims not in their deceased state, but in connection with their families and mothers.  This, the record shows, elicited sobbing from the victim's families in the back of the courtroom.  So the court reverses the convictions and sends it back for a new trial.

Ha ha!  Just kidding.  After this, and the Supreme Court's decision last week in State v. Kirkland, affirming a death sentence despite finding that the prosecutor's closing argument "prejudicially affected Kirkland's substantial rights," I've decided to venture into the poetic arena with my own haiku:

The prosecutor
Says things he shouldn't; no matter
Just harmless error


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