Case Update - Ohio Supreme Court
One of the benefits of doing a blog like this is that it gives you a better appreciation of trends. The Ohio Supreme Court has long had a reputation among the criminal bar of being defendant-unfriendly. Not surprising, given that since the early part of this millennium the court's membership has included six Republicans, a group against whom the "soft-on-crime" accusation is not customarily leveled.
But there has been a trend away from that this year, especially in juvenile cases. Prior to its decisions a couple week back in State v. Aalim and State v. Moore, which we'll talk about on Thursday, the court dealt with the question of whether the allied offense analysis applied to juvenile adjudications (In re A.G.), whether juvenile adjudications could be used to elevate the degree of offense or penalty for adult cases (State v. Hand; discussed here), and whether the statutory presumption that a recorded interrogation is voluntary applied to juveniles (State v. Barker). Every one, including Aalim and Moore, turned out in favor of the juveniles.
In fact, especially with the recent spate of decisions, one would be forgiven for believing that the justices had suddenly envisioned themselves as the second coming of the Warren Court. There's a defendant-friendly decision on the element of prior calculation and design in aggravated murder cases in State v. Walker, which we'll discuss on Wednesday. And then... well, let's take a look at three big cases.
The award for shortest-lived opinion goes to State v. Gonzalez. Gonzalez was hit with MDO-weight (over 100 g) charge of cocaine trafficking, but claimed that only the weight of the actual cocaine -- minus fillers -- should count. The Supreme Court agreed, because of the wording of the statute: while the definition of the drug includes a "compound, mixture, preparation, or substance containing cocaine," the particular level of the offense is determined by the amount of "cocaine." This doesn't apply to other drugs; the marijuana provisions, for example, refer only to the amount of "the drug."
And, considering that it's purely a statutory matter, figure that cleaning this up is going to be a top priority in next year's state legislature. Especially since crime labs in Ohio, while capable of measuring the quantity of a drug, aren't designed to measure purity.
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Caster v. Columbus isn't technically a criminal case, but has perhaps the greatest potential to affect criminal cases of any of the decisions in the past two weeks. Caster was a lawyer engaged by the Ohio Innocence Project who was investigating the case of Adam Saleh, who'd been convicted of murder in 2007. Caster requested the police records related to Saleh's case, but the Columbus police department rejected the request, stating that they wouldn't be produced until Salah's criminal case was completed.
Completed? How isn't a conviction in 2007 complete? And yes, all of Saleh's appeals had been exhausted.
The reason for this lies in a 1994 Supreme Court decision, State ex rel. Steckman v. Jackson. Back then, defendants would use public records requests to get around the limited discovery provided by the criminal rules. Steckman greatly narrowed defendant's ability to do this, first by expanding the definition of "investigatory work product" to include just about anything other than ordinary police reports, and second by holding that a public records request wasn't available to a defendant as long as post-conviction relief was a possibility. (And since exculpatory information obtained from investigative notes could form the basis of a post-conviction relief petition beyond the normal period, that essentially meant the defendant couldn't get the information so long as he was alive.)
The adoption of the open discovery rules in 2010 undercut a large part of Steckman's rationale, but the pernicious consequences of Steckman played a factor, too. Ronald Larkins, who'd been convicted of aggravated murder, was one of the three companion cases in Steckman. Several years after the court denied Larkins' attempt to get his police records, a third person filed the request and got the records, then turned them over to Larkins. A court ultimately determined that the State had withheld exculpatory records, and exonerated him.
Caster also eliminates the "investigatory work product" restriction, but does contain one limitation: a defendant cannot file a request for records until after his trial. But to lawyers doing post-conviction work -- and their clients -- Caster is a Godsend.
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Your client is charged with having weapons under disability, which means State has to show that he has a prior conviction, for either drugs or a violent crime. You offer to stipulate to the prior conviction to the judge, so that the jury only needs to decide whether your client had the gun; it won't know about the prior.
That's going nowhere. The disability is an element of the crime, and must be proved to a jury. Sure, there was a US Supreme Court case, Old Chief v. United States, which presented a similar situation; the Court there held that refusing the stipulation resulted in a violation of EvidR 403, in that the probative value of the evidence would be outweighed by its prejudicial effect. Ohio lawyers have tried to get state courts to apply Old Chief, but with no real success.
Until last Thursday. In State v. Creech, the Ohio Supreme Court adopts the reasoning of Old Chief.
How far does Creech go? Although the case involved the weapons disability statute, the same logic should apply to other cases where prior convictions are used to create or enhance the crime, like domestic violence and certain OVI's. Don't expect to go beyond that; you're not going to be able to stipulate in a felonious assault case that the victim suffered serious physical harm, to preclude the prosecutor from presenting the jury with the grim nature of the victim's wounds.
But if you've ever tried a felony-three domestic violence, where the jury gets to hear that you're client has been convicted of that exact crime twice before, you'll appreciate the impact of Creech.