Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Well, that clears that up

Anthony Douglas Elonis didn't take it well when his wife of seven years left him, taking their two kids with her.  He assumed the persona of "Tone Dougie," and took to Facebook to post "rap" lyrics he'd written.  While Jay Z had nothing to fear from Elonis' entry into the field, his wife believed she did, and in truth Elonis' lyrics went well beyond the violence and misogyny customary in the genre.  That earned him a conviction under 18 USC 875(c), which makes it a crime to transmit in interstate commerce "any communication containing a threat ... to injure the person of another," and a 44-month prison sentence.

On Monday, in Elonis v. US, the Supreme Court reversed his conviction.  Let's take a look at why, and see if that has any ramifications for Ohio's statutes on menacing.

The issue in Elonis was the scienter requirement of the statute.  The government had elicited from the various witnesses (Elonis was charged not only with threatening his ex-wife, but park employees and the FBI) that they felt threatened by the communications.  Elonis' defense was that he didn't intend to communicate a threat, and asked for a jury instruction that the government must prove that he did.  The trial court denied it, and the government played that up in closing argument, telling the jury that "it doesn't matter what he thinks"; as long as the victims felt threatened, Elonis' intent was irrelevant.

Alito's concurring and dissenting opinion (Thomas filed a full dissent) contends that the majority simply makes the situation more confusing, and it's not hard to see why.  Roberts begins by rejecting both Elonis' and the government's interpretation of the statute.  Elonis contends here, as he did at the trial court, that the government must show that he specifically intended to threaten harm, but that's a bridge too far for Roberts:  "an anonymous letter that says 'I'm going to kill you' is 'an expression of an intention to inflict loss or harm' regardless of the author's intent."  But he also disagrees with the government's contention that no intent to threaten is necessary.

So what is required?  The majority concludes that the fact that the statute does not specify an intent doesn't mean that one isn't required.  The opinion then launches into a discussion of the concept of scienter, concluding that "although there are exceptions, the 'general rule' is that a guilty mind is 'a necessary element in the indictment and proof of every crime.'"  Roberts then cites several cases where the Court found that the defendant must have some reason to recognize that his conduct is against the law.  In the lead case on this, Morissette v. U.S., the defendant had taken some spent shell casings from a government bombing range, believing them to have been abandoned.  He was charged with "knowingly converting government property," and at trial the jury was instructed that the only thing the government had to prove is that the defendant had knowingly taken the property without permission.  The Court reversed, holding that Morissette had to know not only that he was taking the casings, but that someone still had property rights to them; his conviction couldn't stand "if he truly believed the casings to be abandoned."

So where does this get us with Elonis?  Not far, it turns out; the majority concludes that since Elonis' intent was never considered at trial, his conviction

was premised solely on how his posts would be understood by a reasonable person. Such a "reasonable person" standard is a familiar feature of civil liability in tort law, but is inconsistent with "the conventional requirement for criminal conduct-- awareness of some wrongdoing."  Having liability turn on whether a "reasonable person" regards the communication as a threat--regardless of what the defendant thinks--"reduces culpability on the all-important element of the crime to negligence."

And there the Court calls it a day.  The opinion announced in its first paragraph that "the question is whether the statute also requires that the defendant be aware of the threatening nature of the communication, and -- if not -- whether the First Amendment requires such a showing."  Having decided the issue on statutory grounds, there's no need to consider the constitutional issue.  In fact, Roberts refuses to address the question of what mens rea beyond negligence is required, specifically leaving for another day whether recklessness is sufficient.

So the bottom line on Elonis is that it decides only that a defendant cannot be convicted of communicating a threat based on whether the victim perceived it as such.  No First Amendment issue, no determination of exactly what intent is required.

There's also no application of Elonis to Ohio's menacing statutes:  both the aggravated menacing and the menacing by stalking statutes prohibit a person from "knowingly" causing another to believe that the offender will cause physical harm or mental distress.


Recent Entries

  • September 12, 2017
    What's Up in the 8th
    Prior consistent statements, whether State v. Hand is applied retroactively, and a big Coming Attraction
  • September 11, 2017
    Case Update
    Looking back at Melendez-Diaz, and the 8th goes 0 for 2 in the Supreme Court
  • September 8, 2017
    Friday Roundup
    Pro bono work, screwed-up appeals, and is Subway shorting their customers?
  • September 5, 2017
    What's Up in the 8th
    The barriers to expungement, jury verdict forms, and hybrid representation
  • August 31, 2017
    Constructive possession
    Constructive possession is 9/10ths of the law
  • August 29, 2017
    What's Up in the 8th
    A traffic stop found Samson Primm in possession of a few grams of marijuana, but he hires a lawyer and files a motion to suppress the stop. On the day of trial, the City asks to dismiss the case. Primm...
  • August 28, 2017
    Truth in plea bargaining
    So I got a brochure last week from Judge Donnelly over at the Common Pleas court. As you can see, it's a panel discussion on plea bargaining. The judge asked me to get out the word, so I just sort...
  • August 15, 2017
    Summer Break
    Got a bunch of stuff to do over the next couple weeks, and with the slowdown in the courts, it's a good time to take a break. I'll be back here on August 28. See you then....
  • August 11, 2017
    Friday Musings
    Drug trafficking, ADA lawsuit abuse, and e-filing
  • August 10, 2017
    Case Update
    Waiting on SCOTUS; two Ohio Supreme Court decisions