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What's Up in the 8th

There are four ways you can win an appeal.  You can show that the jury screwed up, that the judge screwed up, that the defense lawyer screwed up, or that the prosecutor screwed up.  In a study I made up for this post, 62% of reversals land on Square B, judicial error.  The other three get a workout in last week's spate of 8th District decisions, but that's the only one that pays off.

All of them are on display in State v. Tate, where Tate presents a baker's dozen assignments of error on his appeal from his attempted murder conviction.  He argues that the prosecution presented insufficient evidence of purpose to kill, and the jury's determination that they had was against the manifest weight of the evidence.  The moral of this story is that if you shoot somebody five times, it's tough to argue that you didn't intend to kill him.  The claims of ineffective assistance and prosecutorial misconduct are dispatched in a tidy three paragraphs each, so there's little point in me spending more than a sentence on those.

Tate's other assignments focus on the judge, mainly on whether the admission of photographic evidence complied with the procedures specified by RC 2933.83.  A simple reading of the statute shows it be just shy of coherence, and if you can figure it out, you're a better man than I, Gunga Din, so we won't spend time on that, either.  There's also the contention that Tate suffered prejudicial pre-indictment delay because of the 15-month gap between the filing of the complaint against him and his indictment.  The court finds that Tate can't point to any prejudice, the opinion citing last year's Supreme Court decision in State v. Adams, where the court dealt with the issue tangentially, and ignoring the Supreme Court's decision a couple months back in State v. Jones, which dealt solely with that issue.

We've all had clients come to court inappropriately dressed -- my all-time favorite was the client who appeared for sentencing on his domestic violence case wearing a wife-beater -- but the lawyer in Middleburg Heights v. Troyan finds himself in a worse position:  on the morning of trial on her charge of letting a dog run loose, Troyan shows up, apparently having partied too hard the night before with Johnny Walker, and his brothers Black and Red.  Her lawyer requests a continuance, artfully stating that his client is presently unable to assist in her defense -- or recite the alphabet, probably -- but the judge denies it.  The panel gleans that this was discussed in chambers, and reverses, finding it was incumbent upon the judge to more thoroughly evaluate the situation, rather than put the lawyer in the awkward position of explaining why his client had too little blood in her alcohol. 

Oh, and if you're wondering, letting a dog run loose is a strict liability offense, especially, I suppose, if the dog is hammered, too.

Is there any more boring part of a trial than the jury instructions?  At the end of the day before the close of the evidence, the judge hands you a sheaf of forty-some pages, the text in all caps, all taken out of OJI.  You thumb through them, and then the next day, you try desperately to stay awake as he gives them to the jury, noting that several of the jurors are venturing perilously close to the Land of Nod.

Remember what I said about judicial error?  A judge can mess up in a variety of ways -- keeping evidence out that should have come in, letting in evidence that should have been kept out -- but if he messes up the jury instructions, the chances are very good that the case is coming back.

It happened twice last week, first in State v. Parr.  Parr's charged with felonious assault, having beaten up her husband because he had the temerity to try to leave the house after he found salacious texts on a phone he didn't know she had.  The judge instructed the jury on the lesser included offense of aggravated assault, and told the jury that if they found Parr not guilty of felonious assault, or that they couldn't agree on that charge, they should consider aggravated assault.

The problem?  Aggravated assault isn't a lesser offense of felonious assault, it's an inferior offense:  it has all the elements of felonious assault, but also the additional element of provocation.  The jury should have been instructed that even if they found Parr guilty of felonious assault, they still had to consider aggravated assault, and whether the element of provocation had been shown.  By the way, the defendant has the burden of proving provocation, by a preponderance of the evidence. 

Felonious assault is also the charge in State v. Davis.  There's no question that Davis had stabbed the complainant, but he claimed it was in self-defense.  After deliberating a while, the jury came back with a question:  did it have to unanimously find that the defendant proved self-defense?  The judge told the jury that if they unanimously found the defendant proved self-defense, they should find him not guilty, but if they could not unanimously make that finding, they should find him guilty.

This wouldn't be an issue in any place except Ohio:  every other state imposes the burden of disproving self-defense, beyond a reasonable doubt, on the state.  There's no Ohio cases on this point, either, so the court looks to cases in other cases where the defendant does have the burden of proving an affirmative defense, like insanity.  The conclusion?  A jury verdict has to be unanimous, and if some jurors believe that the defendant proved self-defense, as a few jurors indicated here when they were polled, you don't have a unanimous verdict.  Davis is a good opinion, not just because of the result:  it's well-researched and cogently written.  

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