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Case Update

SCOTUS justices returned from a two-week vacation to issue decisions in six cases last week, only two of which pertained to criminal matters, even tangentially.  The first, Henderson v. US, dealt with someone convicted of a firearms offense.  Henderson had surrendered his firearms on arrest, and the conviction meant he couldn't have them back.  He made arrangements to have them transferred to a third party, but the trial court and Eleventh Circuit held this couldn't be permitted because of the doctrine of "constructive possession":  although the police retained physical possession of the guns -- and certainly to the exclusion of Henderson -- the courts held that Henderson was still the actual equitable possessor.  The Supreme Court unanimously disposed of this nonsense in a brisk eight pages.

In San Francisco v. Sheehan, the police responded to a call at a home for the mentally ill, forced their way into the room of the woman being complained of, and observed her armed with a knife and making death threats.  So they shot her.  The Court found the officers had qualified immunity because it was not established at the time that the Fourth Amendment requires officers to take precautionary steps to accommodate a mentally ill person.  Although it had granted review on the issue of whether the Americans with Disabilities Act required accommodation of a mentally ill arrestee, it left that issue for another day.

Huh?  I'm certainly not a fan of the apparent willingness of some police officers nowadays to use deadly force as a first, rather than last, resort, but I'm confident that nobody who debated the ADA in Congress in 1990 had the faintest idea that it would potentially govern police-citizen encounters.  

No decisions in Columbus, but an interesting oral argument in State v. Arnold.  Arnold was charged with domestic violence against his father, Lester, but when Lester took the stand in a bench trial, he invoked the 5th Amendment.  While a witness does not have an absolute right to invoke the 5th, the law is that the judge must then engage in the "complex inquiry" necessary to determine whether there's an actual basis for the witness' concern that he might incriminate himself.  Here, that "complex inquiry" consisted of the prosecutor -- the prosecutor, mind you -- telling Lester he had to answer the questions, and the judge telling him he'd be held in contempt if he didn't.  When Lester claimed not to remember what had happened, the prosecutor had him read his entire statement into the record, then submitted that as substantive evidence.

The 6th District sloughed off the 5th Amendment issue, holding that Lester invoked the 5th to protect his son, not himself, but the dissent noted that Lester might have been concerned that he would be shown to have been the aggressor in the fight.  Of course, that's what that "complex inquiry" is supposed to determine, and while several justices during the oral argument seemed unwilling to approve the judge's procedure, the Chief Justice observed that even without Lester's statement, the evidence was sufficient for conviction.

In the courts of appeals...

In State v. Q.S.P., the 10th District has no trouble affirming consecutive sentences of 27 years.  The judge had made the required findings, leaving the defendant in the position of arguing that the record "clearly and convincingly" didn't support them.  The court spends two paragraphs detailing the defendant's molestation of his two granddaughters over a period of almost a decade, concluding that "appellant's conduct was horrendous, disgusting, and socially and more unconscionable."

Hard to quibble with that, but the concern here is with the panel's determination to apply a plain error standard because the defendant didn't object to the imposition of consecutive sentences at the hearing.  Plain error, of course, requires a showing of manifest injustice, which is virtually impossible in the sentencing context.  Plus, objecting simply alerts the judge that he forgot to say the magic words.

Whether that's a big deal is another story.  Yes, most districts don't require an objection, but the 6th Circuit does for Federal sentencing, and even if the judge forgets to make the findings, in the vast majority of cases it simply goes back so the judge can do that.  The problem with appellate review of sentencing in Ohio isn't procedural, it's the substantive law.

Can a judge run a state sentence concurrent to a Federal one?  Of course; RC 2929.41 says that sentences are concurrent unless specified otherwise.  But you can't run a sentence concurrent to one that's not already imposed.  That's what happened in the 5th District's decision State v. Marshall:  the defendant had entered a plea in a Federal case while awaiting a probation violation hearing in state court.  The judge imposed a prison sentence for the violation without stating whether it was concurrent or consecutive to whatever sentence the Federal court handed down.  After Marshall had done 141 months on the Federal crime, the state judge modified the entry to specify that it was concurrent to the Federal sentence.

Two problems with that.  First, a judge can't modify a final journal entry.  Second, the chronologic "first court" to impose a sentence has no authority to make that consecutive or concurrent to a subsequent sentence.

In State v. Draper, the defendant filed an application to seal the records of her domestic violence case, which had been dismissed.  The State objected on the grounds that it had an interest in maintaining records of "crimes of violence," but the judge granted the petition even though the defendant didn't appear at the hearing.  The 10th District reverses, finding that it's the defendant's burden to show that her interest in sealing the conviction outweighs the State's interest in maintaining the records.

This is a troubling decision, on several levels.  First, we're talking about sealing the records of a dismissal, not a conviction; the State obviously has an interest in maintaining records of the latter.  (In fact, Ohio law precludes the expungement of a conviction for domestic violence.)  As the dissent ably points out, the public interest in maintaining records of a dismissal is minimal.  Worse is that the panel didn't simply remand the case back to the trial court to take evidence (the State presented none at the hearing) and balance the competing interests, it remanded with instructions to deny the application.

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