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Case Update - OSC edition

Sometimes, my writing gets me into trouble.  In addition to the blog, I do a weekly post on the listservs of the local and state criminal bar associations on the 8th District's decisions.  Back in February of 2013, my summary of State v. Tate was that the prosecutor forgot to ask any of the three witnesses to identity Tate, and so the court tossed it for insufficient evidence.  Word gets around, and the prosecutor made it a point to tell me the next week that I'd gotten it all wrong:  there was plenty of evidence of identification, which even the defendant didn't dispute.  The Supreme Court took the case, and as I detailed in my post about the oral argument, it turns out the prosecutor was right:  there was abundant evidence of that if a crime was committed - the issue that was really in dispute - Tate was the one who did it.  The Supremes concluded the same a couple weeks back, by a narrow 7-0 margin. The prosecutor sent me an email about the decision, and to avoid further such problems in the future, I've resolved to read the entire trial transcript of any decision I write about.

A decision that did come by a narrow margin was State v. Tolliver, which involved the issue of the appropriate mens rea for robbery.  Tolliver committed what we call "aggravated shoplifting":  while trying to steal from a dollar store - and no, that doesn't sound like a successful business model for a criminal endeavor - he pushed a store employee who tried to stop him.  That got him charged with third degree felony robbery:  using or threatening force while committing a theft offense. 

The particular section of the robbery statute doesn't specify an intent element, and RC 2901.21(B) says that if no intent element is specified, it defaults to recklessness unless the legislature clearly intended the offense to be one of strict liability.  The judge hadn't included any instruction on the mens rea required for robbery, and the 2nd District reversed Tolliver's conviction for that reason.

And the Supreme Court reverses that, deciding that because the robbery statute requires commission of a theft offense, and since a theft offense requires a knowing or purposeful intent, that gets imported into the robbery offense.

The opinion could be clearer.  In one place, it says that robbery "always includes the mens rea of the predicate theft offense," which would seem to mean that a robbery, including the force element (which is what makes it a robbery) requires a purposeful or knowing intent.  Two paragraphs before that, it says that the force element doesn't require intent.  The three dissenters, who would apply a reckless mens rea, certainly read the majority opinion making the force element one of strict liability.

They're probably right.  A couple of interesting things.  First, the judge didn't refuse an instruction; the case went up on plain error review, and could have easily been disposed of on that basis.  The court never discussed that.  Nor does it even mention State v. Horner, a decision from just four years ago holding that the "serious physical harm" element of aggravated robbery required no mens rea. 

This is an example of defendants losing by winning.  Back in 2008, the court handed down a major victory to criminal defendants in State v. Colon, which held not only that recklessness was the intent element for aggravated robbery, but that the failure to include that in the indictment and to instruct the jury on it at trial was "structural error."  County prosecutors reacted in the same way AIPAC would to the US breaking off diplomatic relations with Israel, and within a couple of months the court, while denying a motion for reconsideration, reconsidered and decided that Colon's holding was limited to the facts of the case, whatever that meant.  It didn't mean much, because prosecutors could no longer just employ the language of the statute in their indictments, but had to figure out what mens rea element to include.  And so, ultimately, did the appeals courts, with varying results.  Colon created such a mess that the court overruled it in Horner just two years later.  And the court's tried to run away so hard from Colon that it's created some pretty bad law on intent.

The court affirms a conviction and death sentence in State v. JacksonIn a two-week period in June of 2009 Jeremiah Jackson committed six robberies in three counties, ending with him shooting a laundromat clerk in the face.  The only issue of significance in the appeal is that the judge held what amounted to a "reverse Atkins hearing."  SCOTUS held in Atkins that it's unconstitutional to execute the mentally retarded, and when the judge in Jackson's case found out that the defense wasn't going to raise that claim, she held a hearing on issue to allow introduction of evidence that Jackson wasn't retarded.  Jackson claims on appeal that this interfered with the decisions of his defense team, and it did, but it's not going anywhere.  O'Neil is the lone dissenter, based on his belief the death penalty is unconstitutional.  (There is not a single justice on the United States Supreme Court who now shares that view.)

But overlooked is the question, why Jackson?  That's not to suggest that he's not a bad guy or shouldn't go away for a long, long time, but if we executed everybody who killed someone in the course of a robbery, death-row defendants would have to stand in line to get on the gurney.  There were only eighty death sentences handed down in the whole country in 2013, and there's little about Jackson's case that suggests he should be admitted to that select group.

And yes, it's good to be back. 

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