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Thursday Roundup

The social network.  There's a case in the Supreme Court, Elonis v. US, which was argued in December and should be coming out soon.  Elonis was convicted of making threats in interstate commerce by posting rap lyrics on Facebook threatening his wife.  There are some First Amendment issues at play, but for the most part it's a case of statutory interpretation:   Elonis contends that the government should have to prove he intended to threaten his wife, while the government argues it only has to show that the average person would have objectively viewed the statements as threatening.  I was hoping to learn in oral argument that Scalia was on Facebook so that I could friend him, but that didn't happen.

The use of rap lyrics as evidence against Elonis is unusual, because he's white.  It's become routine for prosecutors to use rap lyrics to convict black defendants of crimes or prove that they were in gangs in order to add extra prison time under "gang enhancement" statutes.  Last June, Vonte Skinner was convicted of attempted murder in New Jersey, based largely on notebooks full of lyrics he'd written, including this one:  "Two to your helmet and four slugs drillin' your cheek to blow your face off and leave your brain caved in the street."  Not for the squeamish, but the state supreme court reversed, finding the evidence more prejudicial than probative, pointedly noting, "One would not presume that Bob Marley, who wrote the well-known song 'I Shot the Sheriff,' actually shot a sheriff." 

Don't expect prosecutors to back off.  As one commentator observed, "I don't know if there's any probative value. The only value it has is to scare the hell out of white juries, and it's effective."

Drugged driving.  Everybody marvels at the turnaround in opinion on gay marriage, but the views on marijuana seem to be changing, too, albeit not as dramatically.  When I began practicing law, in Ohio people could be -- and were -- sentenced to 20 to 40 years in prison for giving a couple of marijuana joints to a friend.  That's now a misdemeanor, and there are presently four separate groups opting to put legalization of marijuana on the ballot in Ohio this fall.  Whether it succeeds is another matter, but ten years ago the thought of the Ohio public approving marijuana legalization seemed as likely as them voting to designate May as Anal Sex Month.

Opponents have latched on to the best argument against this, the prospect of streets filled with stoned drivers, the resulting carnage approximating that caused by drunk ones.  Most states, including Ohio, have adopted per se rules:  if you have a certain level of THC, marijuana's main ingredient, in your blood -- 10 nanograms per milliliter in Ohio -- it's the same as driving with a .08 alcohol level.

There's a problem with this approach, though.  As this article (h/t to Sentencing Law and Policy) notes, the per se rules for alcohol were based on scientific methodology, specifically, studies linking fatal single-car crashes with a specific BAC reading.  (Single car crash studies are preferred because the possibility of other variables is minimized.)  There's no similar linkage for marijuana; only four similar studies have been done, and all have found no relationship between THC levels and an increased risk of a crash.

Speaking of drunk driving, the Ohio Supreme Court agreed the other day to review the 8th District's decision in State v. KlembusAs I explained at the time, under RC 4511.19(G)(1), if you've got five prior convictions of drunk driving within twenty years, a sixth is a fourth degree felony, and is punishable by a minimum of sixty days in jail.  It's also a fourth degree felony with a mandatory prison sentence of one to five years.  You get the latter sentence if the prosecutor includes a specification that you've had five prior convictions of drunk driving within twenty years, which, of course, is exactly the crime you're charged with.  In other words, whether you spend sixty days in jail or a minimum of one year in prison depends solely on whether the prosecutor decides to include the specification, which provides no additional element of the crime. 

The 8th held this was a violation of equal protection, but the Supreme Court's going to take another look at it.  Regardless of the outcome, Klembus can thank his lucky stars he's not in Texas.  (So, from my perspective, can we all.)  There, the jury determines sentencing, and last week they gave Bobby Gene Martin two life sentences for getting his 10th drunk driving offense in 30 years.  According to the Houston Chronicle, Martin is the 33rd person to receive a life sentence for multiple drunk driving convictions.

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