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 »

×

Legislative intent

Desmond Warren was a pimp, and he did what pimps do.  He'd have his women post ads on Backpage.com advertising their services.  (In fact, one of them taught him how to do it.)  He'd dictate how much money he was to receive for each assignation, and would collect it.  And he'd manipulate the women; one of them described the "pimp control" he'd use:

It's like making a woman feel like she's number one and that you need her and that you love her, and also putting fear in her by if she's not doing what you want her to do, by either hitting her or taking that attention and love away and giving it to someone else.

It was more than an occasional slap; when one tried to leave his home, where they all lived, he punched, kicked, and choked her, then tied her up in the basement.

The Man eventually caught up to Desmond - one of his girls got busted, and promptly rolled over on him - and five years ago he would have been looking at the third degree felony of compelling prostitution.  Instead, he's doing fourteen years for human trafficking.

That offense, added in 2011, makes it a crime to "recruit, lure, entice, isolate, harbor, transport, provide, obtain, or maintain another person" if "the offender knows that the other person will be subjected to involuntary servitude or be compelled to engage in sexual activity for hire." 

The statute was passed in response to stories like the ones found here.  Stories of young girls, often minors, brought to the United States, kept isolated, and forced to work, often as prostitutes, for years.  Stories completely unlike those of any of the women who worked for Desmond Warren.

The Federal government has also enacted statutes aimed at human trafficking, and one of them is the forced labor statute.  Jordy Callahan and Jessica Hunt are doing 30 and 32 years in prison, respectively, for that crime.  They were convicted of harboring a mentally disabled woman and her five-year-old daughter for two years, forcing the woman to do chores around the house on threat of physical punishment.

Their conduct was unquestionably atrocious; one of the chores for the woman was cleaning up after the dogs, and Callahan and Hunt would push the woman's face into dog urine or feces if she didn't properly do the job.  And there were occasions when they'd intentionally injure her, like slamming a window on her fingers, so she could go to the hospital and get drugs that they'd later sell.  Still, their lawyers had some semblance of an argument that this conduct wasn't what the forced labor and human trafficking statutes were directed at. 

The 6th Circuit rejected that argument, pointing out the problem with it:  you never get to the question of legislative intent until you show there's an ambiguity in the statute.  If there's not, you go by the law's plain meaning.

The 8th District did the same in Warren's case, finding that Warren's conduct clearly fell within the parameters statute, and affirming his conviction and sentence.  And it probably does.  Here's the problem, though:  it's virtually impossible, in the context of Warren's case, to see any daylight between that offense and compelling prostitution under RC 2907.21, which makes it a crime to "knowingly compel another to engage in sexual activity for hire"; "compel" is established "the state proves that the victim's will was overcome by force, fear, duress, or intimidation."

Sometimes, though, the "plain words" of the statute cut the other way.  It did last week for Maris Miller.  Miller scammed a 23-year-old guy with Asperger's Syndrome into giving him $923 for auto repairs, which he never repaid.  He pled no contest to theft, with a furthermore clause indicating the victim of the offense was disabled, which elevated the crime to a felony, and the judge sentenced Miller to prison for twelve months.  On appeal, Miller raised for the first time the argument that the victim wasn't disabled, and the panel agreed, reversing and remanding with instructions to enter a conviction for misdemeanor theft.

I was taken aback by that when I read the summary of the decision.  Asperger's Syndrome is part of the autism spectrum, and one of my best friend's son has it.  There's no hesitation in my mind that he's disabled:  he had to go to a special school for a while, and even when placed in a regular school had to be attended to by a monitor.  He has a slight speech impediment, and no real friends:  people with Asperger's have difficulty interacting socially because they're unable to pick up on social cues.  (The victim's mother in Miller testified at the sentencing hearing that that was the reason the victim succumbed to Miller's entreaties:  lacking social cognitive skills, people with Asperger's tend to be very trusting.)

But here's the problem, and the saving grace for Miller:  a disabled adult is defined by statute as someone who because of an impairment is "unable to work at any substantially remunerative employment" for at least twelve months, or has been certified as permanently and totally disabled by the State or the US Government.  My friend's son has a steady job; Miller's victim did, too, and in fact had graduated from college.

The legislature giveth, and the legislature taketh away.

Search

Recent Entries

  • July 24, 2017
    What's Up in the 8th
    Some things we knew, some things we didn't
  • July 21, 2017
    Friday Roundup
    Computers and sex offenders, civil forfeiture, and phrases that should be put out to pasture
  • July 20, 2017
    Case Update
    A look at the Ohio Supreme Court's decision in State v. Oles, and did you know that Justice Ginsburg has a .311 batting average with runners in scoring position? Oh, wait...
  • July 18, 2017
    What's Up in the 8th
    Judicial bias, RVO specs, 26(B) stuff, waivers of counsel... And more!
  • July 17, 2017
    No more Anders Briefs?
    I have a case now in the 8th District where I came close to filing an Anders brief the other week. It's an appeal from a plea and sentence. The plea hearing was flawless. The judge imposed consecutive sentences, and...
  • July 13, 2017
    Sex offenders and the First Amendment
    Analysis of the Supreme Court's decision in Packingham v. North Carolina
  • July 12, 2017
    Removing a retained attorney
    What does a judge do if he thinks a retained attorney in a criminal case isn't competent?
  • July 11, 2017
    What's Up in the 8th
    The court does good work on a juvenile bindover case, and the State finally figures out that it should have indicted someone in the first place
  • July 10, 2017
    Case Update
    SCOTUS ends its term; the Ohio Supreme Court issues another opinion, and likely the last one, on the trial tax
  • June 28, 2017
    Plea Bargaining -- The defendant's view
    A look at the Supreme Court's decision last week in Lee v. United States