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What's Up in the 8th

In most state districts and Federal circuits, an en banc decision becomes the accepted law for that jurisdiction.  Not so much in the 8th.  Several years ago, the court in State v. Nia ruled, by an 11-1 vote, that henceforth they would require a trial court to strictly comply with the findings requirement for consecutive sentences.  That ruling came to be honored mainly in the breach before the ink on the opinion was even dry, various panels engaging in Olympian semantical gymnastics to find something the judge said which could be construed to be one of the findings.

And so it appears to be with State v. Jones, the en banc decision on pre-indictment delay the 8th issued last year.  In State v. Wilson, the court finds that Wilson failed to support his claim of pre-indictment delay with proof of actual prejudice that was "specific, particularized, and non-speculative," the very standard that Jones rejected.  The problem with Wilson's case was not that proof of prejudice wasn't sufficiently specific, it was that it was non-existent; there's nothing in opinion indicating that Wilson could point to a single witness or piece of evidence that was lost by the delay.  (By the way, I argued Jones in the Supreme Court a couple weeks back; I'll have a post on that on Thursday.)  

Literature and comedy observe the rule of three, and so does the 8th District in a trio of sentencing decisions.  Last month I highlighted the Supreme Court's decision in State v. Marcum, which centered on the appropriate standard of appellate review in sentencing.  The 8th has consistently held that for non-consecutive sentences, as long as the judge says she's considered the principles of sentencing and the seriousness and recidivism factors under RC 2929.11 and 2929.12, the sentence is unreviewable:  the judge has unfettered discretion in how to apply the factors.

In Marcum, though, the court seemed to hold that the application of the factors could still be reviewed to determine whether the defendant can "clearly and convincingly" demonstrate that they're not supported by the record.  The 8th applied that same standard last week in State v. Carter, State v. White, and State v. SimmonsTo be sure, the court upheld the sentences in all three cases, but at least getting into a discussion of the sentencing factors is a step toward meaningful appellate review of sentences.

There must be something in the water around here.  In State v. Early, the defendant is indicted for a second degree felony failure to notify of a change of address.  He pleads guilty to the offense as a second degree felony, and is sentenced for a second degree felony.  The appellate lawyer discovers something the trial lawyer, the prosecutor, and the judge didn't:  since the sex offense that formed the basis of the registration requirement was a third degree felony, the failure to notify should have been a third degree felony, too.

And the following week we come to State v. Stump.  Stump was charged with domestic violence with a specification that he knew the victim was pregnant, which elevates the crime from a first degree misdemeanor to a fifth degree felony, with a mandatory six-month term.  Stump entered into a plea bargain in which the specifications were deleted.  Everybody nonetheless continued to treat the crime as a fifth degree felony, and the judge gave Stump eleven months on each, run consecutively.  From the opinion, it appears that nobody realized the mistake until the panel pointed it out in oral argument.  I realize nobody buys law books anymore, but you can look this stuff up.

Finally, we come to State v. Casada and State v. Webster, a pair of cases in which the defendants contend that the trial judge was biased.  The panels refuse to even entertain the argument, finding that the Ohio constitution empowers the chief justice of the Supreme Court with the sole power to remove a judge from a case.  Casada dispenses with the claim with this quote:

"The Chief Justice of the Ohio Supreme Court, or his [or her] designee, has exclusive jurisdiction to determine a claim that a common pleas judge is biased or prejudiced."  Ohio Constitution, Article IV, Section 5(C).   

That's not what the Constitution says, though; it's a quote from a 1995 appellate case.  The constitutional provision actually reads:

The chief justice of the supreme court or any judge of that court designated by him shall pass upon the disqualification of any judge of the courts of appeals or courts of common pleas or division thereof.

That's not to suggest that the panel got it wrong; there's plenty of case law holding the same way.

I see two problems with that, though.  The first is legal.  All the constitutional provision deals with is disqualification.  The presiding judge of a common pleas court can't remove a judge, nor can a court of appeals, nor can anybody except the chief justice.  But that doesn't mean the court of appeals can't entertain a claim on appeal that the trial judge was biased.  That doesn't involve removing the judge.  A defendant has a constitutional right to a fair judge, and the appellate panel is simply determining whether that right was violated.

The second problem I have with this is practical.  Webster's case wasn't an ordinary one.  He was one of the leaders of the Heartless Felons, one of the most notorious gangs in Ohio.  He was charged with 23 counts, including aggravated murder, murder, and multiple counts of aggravated robbery.  The trial lasted twelve days.

So what happens if in the middle of it, the defense files an affidavit of disqualification of the judge?  Everything stops:  the judge has to file a reply, the chief justice has to consider all of it and make a ruling.  And what happens if the judge is found to be biased?  There's at least an argument that double jeopardy would bar a retrial.

As I said, the panel's holding isn't unusual, but I can see it causing problems down the road.

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