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He's baaaack!

Nice to be back after two weeks, and plenty to write about:  in my absence, both SCOTUS and the Ohio Supreme Court came down with major 4th Amendment decisions.  We'll tackle them later this week, but today we'll catch up with some SCOTUS arguments and the one other major decision from the Columbus Seven.

Besides handing down the decision in the search case, the Potomac Nine also heard oral argument in two other criminal cases.  (There was also an argument on something about gay marriage, but that one pretty much flew under the radar.)  One was Glossip v. Gross, a challenge to Oklahoma's lethal injection protocol.  Killing somebody, at least when the state is doing it, requires use of three drugs, the first to render the inmate unconscious.  The companies making the drugs designed to do that have stopped selling it for that purpose, and so Oklahoma is resorting to midazolam.  That's an anxiety drug, not a sedative, though, and the first time the state used it, the inmate who took 43 minutes to die, writhing on the gurney until he expired from a heart attack. 

The exchanges were sometimes nasty -- the exchanges with the justices, I'm talking about -- to the extent that the Chief Justice was "happy" to give one of the attorneys an extra five minutes, because "to an extent that's unusual even in this Court, you have been listening, rather than talking."  What he was listening to was the conservative justices complaining about the "guerilla warfare" against the death penalty:  basically, to make it virtually impossible to administer.  Due to the shrinking availability of the drugs, Oklahoma's governor signed a law two weeks ago allowing the use of nitrogen gas as a method in the event that the Supreme Court disallows the current procedure.  A mask would be placed over the inmate's mouth and nose, and he would be given pure nitrogen, which would asphyxiate him.  Sooner or later, I suppose.

The Armed Career Criminal Act mandates a 15-year minimum sentence for a defendant who is found with a gun and has three prior violent felonies, including state-law crimes.  What's a violent felony?  While the statute lists various specific crimes, it has a "residual clause":  any felony that "otherwise involves conduct that presents a serious potential risk of physical injury to another."

Vague much?  The Court's tackled the clause five separate times since 2007, each time upholding it but becoming increasingly uneasy with it.  Congress hasn't done much of anything the past six years or so, and fixing the residual clause seems to be far down the list of priorities, whatever they may be.  The Court might do the job for them.  The issue in Johnson v. U.S. is whether possession of a sawed-off shotgun is a violent felony, and when the Court heard argument on it in November, nobody argued that the statute was a problem; the defendant didn't even raise the issue.  So the Court rescheduled argument and directed the parties to address the constitutional question of vagueness.  To say the least, the oral argument didn't go well for the government; there seem to be at least six votes to strike down the clause.

The Ohio Supreme Court's other big decision, State v. Bode,  involved a drunk driving prosecution.  That's normally a big deal, but it becomes a much bigger deal if you've got five previous ones within the past twenty years; that elevates it to a fourth degree felony with a mandatory prison sentence of one to five years.

Normally, an uncounseled prior conviction can't be used to elevate a crime, but the U.S. Supreme Court has interpreted that the defendant must have been actually confined for that to apply.  Bode's first conviction was in juvenile court, and while it was uncounseled, he wasn't confined, either.  The four-member majority decides that for juveniles, it's the possibility of incarceration that matters. 

The path there isn't a particularly clean one.  The majority relies on SCOTUS' 1967 decision in In re Gault, the seminal decision holding that juveniles have pretty much the full panoply of due process rights, including the right to counsel as long as the juvenile faced the possibility of confinement.  But Gault addresses the issue of when the right to counsel attaches, not when an uncounseled conviction can be used in later proceedings.  So how to get around those Supreme Court decisions saying that an uncounseled conviction can be used so long as the defendant wasn't confined?  By deciding that the Ohio constitution provides more protection than the U.S. Constitution in this regard. 

That's not totally over the top.  In one of the decisions limiting the right to counsel to misdemeanor cases where incarceration was actually imposed, SCOTUS acknowledged that many states under their own constitutions guaranteed the right to counsel whenever imprisonment was allowed by statute, rather than actually imposed. 

It's hard to overstate the significance of Bode, for three reasons:

First, the court has wavered in determining whether the Ohio constitutions protections are coextensive with the Federal constitution.  This is another indication that the court's willing to read the former more broadly.  Having the U.S. Constitution being a floor, not a ceiling, on rights isn't a bad thing.

Second, although there's language in the Supreme Court's 2007 decision in State v. Brooke (discussed here) saying that confinement is a prerequisite for an uncounseled conviction claim, it's dicta.  While confinement is almost invariably a consequence of a drunk driving conviction -- and yes, the three-day stay in the hotel watching movies about drunk driving accidents counts -- there are a number of other crimes, like domestic violence and telephone harassment, which can be elevated to felonies by prior misdemeanor convictions, and the latter often don't result in jail time.  While Bode is limited to juveniles, I think you can make a pretty good case for expanding it to adults.

Finally, it could have an impact on cases involving prior juvenile adjudications.  While those adjudications can't be used as a prior for a repeat violent offender specification, they can be used for just about anything else, including elevating an offense (like domestic violence) or as a prior conviction making prison mandatory.  Obviously, Bode applies to those adjudications as well:  if the defendant claims they were uncounseled, the State has to show that there was a valid waiver.  Given the frequent lack of formality in juvenile court proceedings, and their general sloppiness, that could present some problems.


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