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Case Update

After Miguel Pena-Rodriguez was convicted of sexually assaulting two girls, one of the jurors told his lawyer that another juror had made numerous racial comments during deliberations, telling the jury that Pena-Rodriguez must be guilty "because he's Mexican, and Mexican men take whatever they want."  Last week, SCOTUS held oral argument to decide whether there was anything anybody could do about that.

Normally, the aliunde rule requires that if you're going to impeach the jury's verdict on account of jury bias, you have to provide outside evidence of it before you can get into the testimony of other jurors about it.  The issue before the Court was whether the 6th Amendment right to an impartial jury trumped this.

There are probably enough votes to provide a win for Pena-Rodriguez - only Alito seemed staunchly opposed to his position - but the devil's in the details.  Would this be limited only to claims of racial bias?  For example, if a juror had made a comment in a stock swindling case that the Jewish defendant was more likely to have committed the crime "because they'll do anything for money," would that be an exception to the aliunde rule, too?  How would a court determine whether the juror's comment had actually affected the verdict?  Still, a number of states do allow a verdict to be impeached in this manner, and it seems to work.

The Court also issued one per curiam decision, in Oklahoma v. Bosse.  In its 1987 decision in Booth v. Maryland, the Court barred victim evidence in a capital case that does not "relate directly to the circumstances of the crime."  Four years later, the Court reversed course in Payne v. Tennessee, allowing evidence relating to "the personal characteristics of the victim and the emotional impact of the crimes on the victim's family." 

In Bosse, the State asked three of the victim's family members to recommend a sentence to the jury, and all three recommended a death sentence, which the jury imposed.  Booth had prohibited admission of family members' opinions of the defendant and the appropriate sentence, but the Oklahoma courts had held that Payne "implicitly" overruled that portion of Booth.  Not the way it works, the Supreme Court holds - we get to decide which of our opinions is overruled.  So the case goes back to the state courts to consider whether the error affected the jury's sentencing determination, and if it did, was that overcome by the mandatory sentencing review required by Oklahoma law.

The Ohio Supreme Court tackled the definition of nudity, as it applies in child porn cases, in State v. MartinMartin had surreptitiously recorded an 11-year-old girl while she undressed in a bathroom, and was convicted of creating nudity-oriented material involving a minor, under RC 2907.323(A)(1).  "Nudity" is defined by RC 2907.01(H) as the showing of genitalia, pubic areas, buttocks, or female breasts.  Back in 1988, the Supreme Court held in State v. Young that a conviction for child pornography required a showing that the nudity constituted a "lewd exhibition" or "graphic focus on the genitals."  Martin contended that should apply to him, but the court rejects the argument, finding that the more restrictive definition only applies to possession of child nudity material, not the creation of it.

In the courts of appeals...

In In re T.R.J., the police respond to a call that some teenagers had climbed through the window of a community center.  The cops saw them through a window, and observed one of them put something in a garbage can.  They stopped the boys when they exited the building, and found marijuana paraphernalia on T.R.J.  They also found marijuana in the garbage can, so they charged him with tampering with evidence.

The 11th District tossed that, finding insufficient evidence that T.R.J. had been aware of the police presence at the time he ditched the marijuana.  That's in line with the Supreme Court's decision in State v. Straley (discussed here), which held that a conviction for tampering requires proof that the defendant knew that an investigation into the offense for which he was hiding evidence was likely.  In short, if the police hit the sirens because you ran a red light and you toss the crack pipe out of the car, you're not "tampering" because the crack pipe is irrelevant to the traffic violation.

But there's an interesting subtext here.  Within the past several years, it's been a common tactic of prosecutors to toss in a tampering charge if they stop some crackhead and he drops the pipe on the ground or otherwise tries to hide it:  instead of a fifth degree felony, you've now got a third degree felony.  In this case, the court noted that it was "mindful" that "we are reviewing the state's efforts to prosecute a third-degree felony by claiming appellant tampered with evidence of a minor misdemeanor."

The court's just imposed consecutive sentences on your client, but didn't make the required findings.  Do you have to object to preserve the error?  In State v. Bluhm, the State argues that the failure to object means the appellate court can review only for plain error, which means the defendant has to show that he would not have received consecutive sentences had the judge complied with the statute.  That's kind of a weird argument - the defendant has to show that the judge wouldn't have imposed consecutive sentences if he'd made the findings necessary to impose consecutive sentences - and the 10th District rejects it:  failure to make the findings makes the sentence contrary to law, and that is plain error. 

The 10th District provides a reminder in State v. Nichter that a judge doesn't have unfettered discretion in granting judicial release for a first or second degree felony.  In order to grant release, RC 2929.20(J) requires the court to find that the a sanction other than prison would be proper, because the crime is less serious than that normally constituting the offense, and that there is a lesser likelihood of recidivism. 

The first time the judge granted judicial release to Nichter, who'd been convicted of second degree felony identity theft, the 10th reversed because the judge didn't make the findings.  The second time, the judge read the statutory findings into the record, but that wasn't good enough, either:  unlike the case with consecutive sentences, the judge needs to not only make the findings, but explain the basis for them.  The third time's not the charm:  the judge did give an explanation of the findings, but the 10th determines that the record doesn't support them; for example, the judge found that the defendant didn't cause physical harm, but identity theft never involves physical harm, so it shouldn't have been considered.


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