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This and that

Nodding off.  I've mentioned before that there's a whole body of law on sleeping jurors, and the 2nd District added to it a couple weeks back in State v. Montgomery.  Not only must a defendant show that the juror missed "critical portions" of the trial because of a visit by that candy-colored clown they call the Sandman, but "a defendant's petition for post-conviction relief must fail when the defendant had knowledge during his trial of juror misconduct, but failed to raise the misconduct at the trial level or in his direct appeal."  It also helps if there were actually sleeping jurors, which the trial judge in Montgomery's case found there weren't.  

Interestingly, the law on sleeping jurors roughly parallels the law on sleeping attorneys, which also requires a showing that their trip to Slumberland caused them to miss key moments in the trial.  In one 6th Circuit case, the panel sloughed off a claim that the attorney had been sleeping during the direct examination of a key government witness by noting that the attorney had cross-examined effectively.  Think of how much more effective it would have been had the attorney actually heard the witness' testimony.

And then, of course, there's Carl Johnson, the lawyer appointed to represent Calvine Burdine in a capital case in - you guessed it - Texas.  Johnson, whose entire file on the case consisted of three pages of notes, slept during parts of the trial in which Burdine was convicted and sentenced to death.  The conviction and sentence was upheld on appeal (SCOTUS eventually reversed), the panel asking in oral argument whether Cannon had slept through any important parts of the trial.  I don't do death penalty work, but I imagine that lawyers who do don't spend a whole lot of time trying to figure out in advance what parts of a case in which your client can be put to death are trivial, and wouldn't command your full attention.

Corroborating evidence and gross sexual imposition.  If you're convicted of gross sexual imposition, you can be sent to prison for up to five years.  If you're convicted of gross sexual imposition and the judge finds there was corroborating evidence of the crime, you have to be sent to prison; it's mandatory time.

This would seem to present a problem in light of SCOTUS' decision last year in Alleyne v. US(Discussed here.)  In Alleyne, the defendant had been charged with using a firearm in a crime, which carried a minimum mandatory sentence of five years, but if the judge found that the firearm was brandished, the mandatory minimum became seven years.  In Apprendi and Blakely, the Court determined that judicial fact-finding was a violation of a defendant's Sixth Amendment right to a jury trial, and held that the maximum sentence the judge could impose was the maximum permitted by facts found by a jury or admitted by the defendant.  Alleyne applied that to mandatory minimums as well; the jury, not the judge, had to find that Alleyne brandished the weapon to trigger the seven-year minimum.

Same thing here:  a finding of corroboration increases the mandatory minimum, because the judge has to send the defendant to prison if he makes that finding.  Last week, the 12th District rejected the argument that the corroboration provision was unconstitutional, relying heavily on the 10th District's decision to the same effect in State v. Bevly. 

As the opinion notes in passing, though, Bevly is before the Ohio Supreme Court, and if the 12th District judges in Ahlers watched the oral argument in the case last June, they sure didn't see the same one I did; as I wrote then, it seemed clear that the corroboration requirement was "destined for the dustbin."  I listened to the oral argument a second time, and I'm a little less sure of the outcome than I was then.  There's a lot of case law out there on the difference between "elements" and "sentencing factors," and it's sufficiently murky that the State may muster the four votes needed to save the corroboration requirement.  I don't see it happening, though.

The court in Ahlers spends a lot of time discussing the fact that there was no real question of corroboration:  the defendant had confessed to the crime, and that's about as good corroboration as you're going to get.  That misses the point entirely, though:  it's not a question of whether there was corroboration, but who gets to decide that issue.

But that brings up another question:  how does that issue get decided?  The only way to do it in a plea is if the defendant stipulated there was corroboration, or if the indictment alleged corroboration, and the defendant pled to it.  That's a little tricky, since normally an indictment only alleges the elements of the crime, and corroboration isn't one.  It's even trickier with a jury verdict:  is there a special verdict form for the jury?  And how do you explain what corroboration is to them?

During the oral argument, several justices suggested that the legislature would have to clean up the statute.  I'm not sure there's a way to do that.  The corroboration requirement might simply become a dead letter.


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