The destruction of civilization as we know it proceeds apace: five people were taken out of the Supreme Court chamber during oral argument last Wednesday after shouting slogans about the Court's decisions on campaign finance. As Elmer Fudd would say if he'd been in Apocalypse Now, "the howwow... the howwow..."
Two days earlier, the Court heard argument in Brumfield v. Cain, a death penalty case. Various psychological reports indicate that Brumfield has an IQ of as low as 54, which would exempt him from execution under the Court's Atkins decision in 2002. Alas, Brumfield was tried back in 1985, long before Atkins, and the mitigation hearing back then wasn't focused on Brumfield's mental disability. In fact, there are about twenty volumes of the state's record, and the justices didn't appear to be overly keen on wading through all that, as opposed to making sweeping statements of law. The Court granted cert on the question of whether a state has a constitutional duty to provide a separate hearing on the mental disability issue, or whether it can simply rely on the mitigation hearing. Whether it decides to answer that question seems as much in the air as what the answer will be.
The Court doesn't have any oral arguments for two weeks, but returns to the death penalty question the week after that, in a case involving the use of the three-drug protocol for executions. That's somewhat of an afterthought, though: everybody's attention will be directed to the case the day before, Obergefell v. Hodges, on whether bans on gay marriage are unconstitutional.
There's not a criminal case for oral argument on the Ohio Supreme Court's calendar until May 20, so let's go take a look at the decisions in the courts of appeals...
What happens to a State's peremptory challenge if the defense objects on Batson grounds and the court upholds the challenge? Not something you have to spend a lot of time contemplating, since those challenges are granted so rarely, but it does come up in State v. Moore. The State used its final peremptory challenge on a black juror, the defense objected, and the court sustained it. So does the State lose its final challenge, or can it exercise it on another juror? The 2nd District takes a look at cases from other jurisdictions -- there's nothing in Ohio on this -- and decides that the best course of action is to punt: it's up to the discretion of the trial judge.
State v. Jones provides an interesting twist on "mandatory probation." Jones was charged with leaving the scene of an accident, which is normally a misdemeanor, but was elevated to a fifth degree felony because the other person in the accident was seriously injured. Originally, under HB 86, a person charged with a fourth or fifth degree felony has to be given probation unless she's been previously convicted of a felony, or a misdemeanor offense of violence within the past two years. That was broadened a year later to allow the judge to impose a prison sentence if he found that the crime caused physical harm, and that's what the judge did here: he gave Jones a 12-month sentence because of the injuries suffered by the victim. The 1st District reverses, though, finding that the harm was caused in the accident, not in Jones' fleeing from the scene.
In Toledo v. Jenkins, the victim of a domestic violence complaint doesn't appear for trial, but the court permits the police officers to testify as to what the victim told them when they responded to her 911 calls, as well as allowing the introduction of the calls themselves. The latter obviously comes in, as the primary purpose of the call was to summon help to an emergency. The 6th District also upholds admission of the woman's statements to the police once they arrived, also under the theory that the police were responding to an emergency at that point.
What emergency? The opinion notes that the police didn't know the suspect's whereabouts, but so what? To be sure, that was largely the basis for the Supreme Court's allowing the admission of the dying victim's statements in Michigan v. Bryant (discussed here and here), but there the police encountered a situation where a gunman was at large, which posed a threat to the public. Here, the only threat the defendant posed was to the victim, and that ceased being a threat when the police arrived. Jenkins veers way too close to the idea that an "emergency" exists for Confrontation Clause purposes any time the suspect is at large.
One further cautionary note: at trial, the defense objected to the statement only on hearsay grounds. The 6th District holds that the failure to object on 6th Amendment grounds waives that argument, and it can only be reviewed for plain error.
Bullshit Bicycle Stop of the Week.™ In State v. May, a police officer stops May for riding his bicycle without lights, this occurring, of course, in the paradigmatic "high crime area." Finding May to be a bit nervous, the officer asks if he can pat him down for the officer's "safety," and finds a gun. May claims his consent was not freely given, but the 6th District panel shrugs this off, based on their extensive experience of standing in the street with a police officer who's asking to pat them down. One judge concurs "to express my concern that our holding could be used to justify unlawful detentions or so called 'fishing expeditions' based on nothing more than a mere bicycle infraction." Yeah, I sure can't see that happening.