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What's Up in the 8th

Well, that settles that.  A number of judges up here have taken to giving jury instructions before closing argument.  According to CrimR 30(A), and the Ohio Supreme Court, it's mandatory that the judge give instructions after argument.  Tia Hariston makes that the centerpiece of her appeal from a petty theft conviction, and the panel agrees with Hariston.  To a point; the Supreme Court opinion says that the defendant must still show prejudice from having the instructions given before than after argument, and the panel in State v. Hariston finds none.

And when I read the opinion, I thought, how would you ever show prejudice in that situation?  How would you ever show that the outcome of the trial changed because the order of giving jury instructions changed?  I'm still drawing a blank.

In light of the increasing tendency of the 8th to determine that anything a judge says when imposing consecutive sentences constitutes the necessary findings, I'm starting the Close Enough for Government Work Award.™  This week's trophy goes to State v. Davis, where the panel decides that the judge's telling Davis he had already been afforded a "second chance" satisfied the proportionality requirement.  Yikes. 

I sometimes imagine that every Tuesday morning the judges of the 8th cluster around a computer monitor, pull up "What's Up in the 8th," and eagerly scan the post to learn which ones have earned my praise, and which my scorn.  A rude awakening comes in State v. Rackley, an untimely petition for post-conviction relief.  To get in the door with a tardy PCR petition, you have to show that you've got something new, and that no reasonable factfinder would have found you guilty.  That becomes a much tougher row in Rackley's case, since he pled guilty, and there's plenty of case law upholding the logic that a guilty plea forecloses a later claim that nobody in their right mind would have found you guilty.  But my dreams of relevance are shattered by opinion's reference in several places to the "180-day" time limit for the petition.  As I've mentioned several times here, that was amended a few months back to extend it to one year. 

The major argument in State v. Parker, a bench trial in a murder case, centers around the agreement by defense counsel and the prosecutor that the judge could consider the inferior offense of voluntary manslaughter.  Parker claims this is error, because he had asserted self-defense, and that's incompatible with a voluntary manslaughter instruction.  The panel agrees, but since the trial court convicted Parker of murder, it's obvious it rejected both manslaughter and self-defense, so there's no prejudice.

The law in the 8th is that manslaughter and self-defense are incompatible, but I had some questions about that, in the context of the facts in Parker.  Parker had gone to his ex-girlfriend's house to confront her new beau, but when he broke down the door things didn't go so well:  the new boyfriend, if you believe Parker's story - and that's a giant if - pulled out a knife and attacked him.  That would have allowed Parker to claim self-defense, except for one thing:  to establish self-defense, you have to show that you weren't the aggressor, and Parker, by going to the house in the first place, arguably was.   That leaves him with manslaughter.

What the prior decisions have latched onto here is that self-defense requires you to be in fear, while voluntary manslaughter requires you to have acted in a rage.  I can more easily see that self-defense and accident would be incompatible, but I think the prior decisions, and Parker, have a point.  At least in the 8th, you're going to have a tough time getting an instruction on both.

Finally, we come to State v. Ramirez, where his complaint is that the judge accompanied his ten-year sentence for sexual battery and kidnapping involving two minor girls with a $20,000 fine.  Ramirez argues that he'd just gotten done serving a six-year prison sentence, and as a sex offender his employment prospects when he got out of prison in a decade were spotty at best. 

Here's the problem:  that six-year prison sentence was for molesting the same two girls.  When he'd gotten out, he'd moved back in with the mother, and had actually gotten a job for a year and a half before he was arrested for doing the same thing.  The panel reviews the judge's decision to impose fines for abuse of discretion, and finds none.

Ah, but what about mom, you say?  One of my numberless legions of readers - a subset of the population which apparently does not include the 8th District judges - wrote and told me that the mother's case appeared in these electron-fueled pages just a few weeks ago.  She fared better than Ramirez; in State v. Green, the 8th reversed her six-year maximum consecutive sentence for child endangering, deciding that the judge's finding that her criminal history justified consecutive sentences ran afoul of the fact that she'd never had a prior conviction or even a juvenile adjudication.  (My faithful correspondent in fact won the case.)  Whenever Ms. Green gets out of prison, her appearance on Dr. Phil seems assured.


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