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Case Update

Oral arguments are done in SCOTUS, and now we're just awaiting the decisions:  thirty-four of them, to be precise, or about a half of the Court's docket for the term.  In addition to the biggies on Obamacare and gay marriage, there are over a half-dozen criminal decisions still pending, the most significant of which is probably Ohio v. Clark (oral argument discussed here.)  In other Court-related news, Natalie Portman has been chosen to play Ruth Bader Ginsburg in a movie about Ginsburg's fight for equal rights for women.  Yes, Natalie Portman.  Lest that give you pause, Portman graduated from Harvard undergrad; Ginsburg graduated from Harvard Law, where she was one of nine women in a class of 500.

I've promised (threatened?) that I'm going to discuss the Ohio Supreme Court's decision in State v. Willan, so let's do that now.  Willan was prosecuted under Ohio's Corrupt Practices Activity statute, Ohio's counterpart to the Federal RICO statute, for a fraudulent securities scheme.  An OCPA conviction requires proof of two predicate offenses, and if one of them is a first degree felony, the court has to impose a 10-year sentence on the OCPA count.  Willan was found guilty of numerous first-degree felonies, including false registration of securities, aggravated theft, and theft from the elderly.  The jury verdict form for the OCPA count reflected only that some of the predicate convictions were for those offenses.  The court of appeals tossed the latter two counts for lack of sufficient evidence, and found the 10-year-sentence provision ambiguous.  The Supreme Court reversed on that point, but affirmed the insufficient evidence finding. 

Six days later, SCOTUS came down with Alleyne v. US (discussed here), holding that a mandatory minimum sentence couldn't be based on judicial factfinding.  Willan filed for cert, and the Supreme Court vacated his conviction and remanded for reconsideration in light of Alleyne.

Willan's argument was that normally an OCPA violation was punishable like any other first degree felony:  by a sentence of three to eleven years.  In order to impose ten, the judge had find that (1) false representation qualifies as "corrupt activity," (2) Willan's false-representation convictions were first-degree felonies, and (3) those convictions, as opposed to others, were the predicate offenses forming the OCPA "pattern of corrupt activity."  The jury verdict on the OCPA had found none of these, so the judge had to engage in judicial fact-finding, which Alleyne prohibits.

On remand, the court nonetheless affirms, finding that those were "findings of law," as opposed to "findings of fact."  It's tough to argue the first two:  the relevant statutes specify as much.  The third one's dicier; but the court holds that this is just a "sufficiency" analysis, and besides, any error is harmless because of the overwhelming evidence against Willan.

That's a questionable result:  sufficiency of the evidence is an issue for appellate review, not for the trial judge.  One thing I'd expect from this is that the verdict forms for OCPA violations will include a specific finding as to which one of the other convictions is the first-degree felony necessary to impose the maximum sentence.  I'd also expect that in future decisions about the OCRA, the court will refer to it by that abbreviation, rather than calling it the RICO statute, as it does throughout the opinion here.

In the courts of appeals...

The 6th District handles a Crawford issue in Toledo v. Green.  The police responded to a 911 call about a domestic situation, and when they arrived, the husband and wife were still "bickering," but the wife was not more than "a little upset."  The court found the wife's statements on scene to be testimonial, but that's an easy call; the facts mirror those in Hammon v. Indiana, where the Supreme Court tossed statements made to the police by a domestic violence victim in similar circumstances.  From the cases cited in Green, it appears that courts are going to find statements nontestimonial in such situations if the statement qualifies as an excited utterance, and the perpetrator has left.  That last factor shouldn't be one, because the perpetrator then poses no threat to the victim once the police arrive, and there's no longer an ongoing emergency.

The 9th District burnishes its reputation as the most hypertechnical court in Ohio in State v. McRae.  The defendant filed a motion in limine to exclude a firearm tool mark analysis, but didn't renew the objection after the expert testimony.  That means it can only be reviewed for plain error, but McRae only argues on appeal that it was error to allow the testimony; because he fails to raise the issue of plain error, the court's not going to consider the issue at all.

In State v. Catron, a neighbor gets killed in a shootout between two half-brothers in a dispute over a lighter.  Catron claims he and the half-brother should have had separate trials because their defenses were mutually antagonistic.  That is a ground for severance, but it's a long, hard mile to walk to get there:  "defenses must be antagonistic to the point of being irreconcilable and mutually exclusive."  That basically requires both defendants to attempt to exculpate themselves while inculpating the other.  More worrisome is the panel's treatment of the flight instruction.  In recent cases, the 8th District has backed off the position that an instruction is warranted any time the defendant doesn't wait at for the police to arrive, but here the panel finds the instruction was warranted because the two were the only ones to flee the scene; the rest of the crowd hung around.

Finally, in State v. Sandridge, the defendant, who'd pled guilty rape of two young children (without the specs that would've given him a life sentence), seeks to withdraw his plea on the day of sentencing.  That's generally a forlorn enterprise, but Sandridge insists that can't live with himself for pleading to something he didn't do, and that not only did he not molest the children, he'd never even seen them.  It proved a forlorn enterprise nonetheless, since Sandridge had to admit that he could only share in the judge's bewilderment at how Sandridge's DNA managed to be found in the underwear of one of the children.


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