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Case Update - OSC Edition

The notion of the Roberts Court as a conservative one took a hit last week, with the Court striking down state gay marriage bans and upholding the Affordable Care Act, the latter in an opinion written by the Chief Justice.  Tucked away was a win for liberals in a race discrimination case - the Court rejected the contention that plaintiffs claiming housing discrimination had to show intentional discrimination and held that proof of disparate impact would be sufficient - that surprised many. 

In one criminal decision of note, Johnson v. US, the Court struck down the residual clause in the Armed Career Criminal Act (oral argument discussed here) as being unconstitutionally vague.

They were busy down in Columbus, too, handing down decisions in two criminal cases and hearing oral arguments in two others.  Let's take a look.

You're a judge, and you're sentencing a defendant for felonious assault and domestic violence.  Neither of the parties raises the issue of whether they're allied offenses.  Do you have the duty to inquire about that?

That's a particular problem if the case was resolved by a plea, and there's no factual record which would aid in the determination of whether the offenses should merge.  The Supreme Court's held that failure to merge offenses is plain error, and so the 8th District in an en banc decision ruled that "where it is clear from a facial review of the charges that the offenses may be allied, even when facts necessary to determine the conduct of the offender are missing, a trial court has a duty to inquire and determine whether those offenses should merge."

That gets reversed in State v. RogersThe opinion for the five-member majority (Pfeifer concurred only in judgment, O'Neill dissented) It first distinguishes between waiver and forfeiture.  Waiver requires an affirmative act, but a defendant doesn't waive an allied offense argument by pleading guilty, because merger is a sentencing issue.  Forfeiture, on the other hand, is the failure to object to a claimed error.

An appellate court can still consider a forfeited error under the plain error doctrine.  But in addition to the error being "plain," there's another requirement:  "Even if the error is obvious, it must have affected substantial rights."  That means Rogers had to show a probability that the judge would have found the offenses merged, and here the record doesn't show that.  Actually, the whole point was summarized more elegantly by the initial panel opinion in Rogers:

There is no plausible interpretation of the plain error doctrine that would allow an appellate court to find error simply because there are no facts to show whether any error occurred.

The bottom line is that if you're the attorney and you've got a semblance of an argument on allied offenses, it's up to you to make it.  And that's the way it should be.

Rogers answers one other question:  if a defendant receives stolen property of more than one person, and then disposes of it in a single transaction, he can be charged with one count of receiving stolen property for each individual the property came from.

By the majority opinion's count in State v. Keenan, there have been forty prior judicial decisions in the case.  The 41st isn't a pretty one.  Keenan, along with Joe D'Ambrosio, were convicted and sentenced to death in 1989 for the murder of Tony Klann.  Keenan's conviction was reversed for prosecutorial misconduct in closing argument, but the second trial in 1994 produced the same result. 

The key witness against D'Ambrosio and Keenan was Edward Espinoza, a participant in the crime who testified against the pair in return for a lesser sentence.  It was later determined that the State had failed to disclose numerous statements Espinoza made to the police which cast substantial doubt on his story.  A Federal judge in habeas ordered new trials.  The cases proceeded on separate tracks, and D'Ambrosio was ultimately released.

Keenan wasn't, and Espinoza was now dead.  The State sought to use his testimony from the first two trials, but the trial judge refused, observing that the defense didn't have an opportunity to use the now-disclosed materials to impeach him then.  The judge ultimately dismissed the case with prejudice, finding that "in light of the State's egregious prosecutorial misconduct, Keenan cannot receive the fair and Constitutional trial that he is entitled to today."

In an opinion just thirteen paragraphs long, the court by a 4-3 vote concludes that the trial court abused its discretion by ruling on the motion without allowing the parties to "develop the record."  That contention is pretty much eviscerated in the dissenting opinion by French. 

The real question is whether dismissal with prejudice is an appropriate sanction for a discovery violation.  In its 1983 decision in State v. Parson, the court held that in imposing a sanction, the judge should consider three factors:  (1) whether failure to disclose was willful, (2) whether foreknowledge of the undisclosed material would have helped the defendant prepare a defense, and (3) whether the defendant was prejudiced.  The Keenan majority relies heavily on State v. Darmond, a decision two years ago in which it also reversed a judge's decision to dismiss an indictment with prejudice for a discovery violation.

As French notes, though, in Darmond the violation was unintentional, and it wasn't clear whether the undisclosed evidence was inculpatory or exculpatory.  And one is left wondering what record the Keenan majority expects the parties to develop:  after 20 years of litigation, the record is as good as it's going to get.  It would be one thing if the majority had found that this record didn't support dismissal, but the outcome seems to be that the only way we can determine whether Keenan can get a fair trial is to try him. 

While the Ohio Supreme Court has a national reputation for being one of the harshest disciplinarians for attorney malfeasance, its approach to prosecutorial misconduct is much more benign; just last year it affirmed a death sentence despite a finding that the prosecutor had engaged in such outrageous conduct during close that the defendant was clearly prejudiced.  Keenan is more of the same.  

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