No new opinions from SCOTUS, but some news nonetheless. Maximum Leader President Trump will announce his nominee for the vacancy on the Supreme Court this week, we are told, among three finalists: Thomas Hardiman, Neil Gorsuch, and William Pryor. The links are to SCOTUSblog profiles of the three candidates, wherein we learn that Hardiman put himself through Georgetown Law School by driving a taxi. If confirmed, he would be the only justice who didn't go to an Ivy League law school and, I'm guessing, the only one to have driven a taxi. Pryor, we are told, "is no friend of criminal defendants," a view confirmed by the blog's recitation of Pryor's opinions in criminal cases. Gorsuch seems to be a Scalia clone, in both style and substance, which might not be too bad, at least in criminal law. While Scalia most certainly was not a friend of capital defendants, the staunch conservative's legacy includes some of the most defendant-friendly decisions to emerge from the Court in the past two decades, like Crawford and Blakely.
The Court didn't issue new opinions, but nonetheless made some decisions. A somewhat surprising one came in Arthur v. Alabama. Last term in Hurst v. Florida, the Court considered Florida's capital sentencing scheme, in which the jury made only a "recommendation" of life or death; it was up to the judge to make the findings of whether the aggravating factors outweighed the mitigating factors, and thus justified the imposition of capital punishment. The Court held that this violated the Ring/Apprendi/Blakely rule barring judicial fact-finding in sentencing. Alabama's law is virtually identical to Florida's, a fact admitted in Alabama's amicus brief in Hurst. The Court nonetheless denied certiorari in Arthur. He's still got a case pending in the Supreme Court on the legality of Alabama's lethal injection protocol.
Speaking of lethal injection protocols, last Thursday the Ohio Supreme Court issued an order "to facilitate this court's timely consideration of any matters" relating to Ronald Phillips' execution, scheduled for February 15. (Two more executions are scheduled in February and March.) Not so fast; a few hours later, a Federal court found that the state's protocol was unconstitutional. Whether this stands up is another matter; the decision was reached by a magistrate judge, and it is certain to be appealed, first to the district court judge, and then to the 6th Circuit.
The court will be stepping up its pace of oral arguments, with five criminal cases scheduled next week. Perhaps the most interesting one is State v. Roberts. Roberts, the only woman on Ohio's death row, was sentenced to death in 2003 for hiring Nate Jackson to kill her ex-husband. (Jackson was separately tried, convicted, and also sentenced to death.) Roberts told the jury in her unsworn statement that she would present no mitigating evidence, and that it should impose the death penalty.
Since then, it's been pretty much of a mess; this is Roberts' third direct appeal to the court. The first one resulted in a reversal because the judge didn't permit Roberts to allocute. She did, but the court reversed again, because the judge didn't state that he "considered" Roberts' allocution. The remand directed that Roberts was not allowed to present any additional evidence, or make another allocution; the judge was only allowed to consider the allocution Roberts had given.
So why are we in court again? Because there's a new judge, and Roberts argues that the new judge can't properly consider Roberts' allocution because he didn't hear it.
Remember "actus reus" and "mens rea" from law school? Sure you do; it's the common law definition of the requirements for criminal culpability -- the "guilty act" and the "guilty mind." That's codified in RC 2901.21(A), which requires a voluntary act (or omission), and a culpable mental state.
What constitutes a "voluntary act" is the subject of the 10th District's superb analysis in State v. Ireland. Ireland was charged with felonious assault, and claimed that he'd committed it while in a blackout due to PTSD he'd suffered as a result of his experience in the 1991 Iraq war. RC 2901.21(E)(2) provides that "body movements during unconsciousness ... and body movements that are not otherwise a product of the actor's volition, are involuntary acts," which, if proven, would negate culpability.
But who has the burden of proving it? OJI places the burden on the State to disprove it beyond a reasonable doubt, but most of the Ohio decisions have held it to be an affirmative defense, and that's what the trial judge went with. The panel decides that's wrong: "voluntariness" is an essential element of a crime, and so it's up to the State to prove it. What's more, since due process requires the State to prove every element beyond a reasonable doubt, the judge's failure to properly instruct is structural error, requiring reversal without a showing of prejudice.
Ireland is a bit limited. First, the defendant still bears the burden of production. In this context, it's likely that some expert testimony will have to be presented on the issue. Second, it doesn't apply to a blackout caused by voluntary intoxication; Ohio law specifically precludes using that as a defense.
The defendant in the 3rd District's decision in State v. Valdez is one of the first beneficiaries of the Supreme Court's decision a month ago in State v. Gonzalez. Valdez was charged with trafficking 29 grams of cocaine, but his conviction of a first degree felony gets reduced to a fifth degree felony; Gonzalez requires proof of the pure amount of cocaine, and the State had proof only of the total weight, filler included.
I gave a seminar in Stark County last week, and one of the lawyers told me that he had an appeal on a Gonzalez issue. The State had taken three extensions to file its brief, and the lawyer surmised that it was because they hoped the legislature would change the statute in the interim.
That's almost a certainty; all the legislature has to do is change the word "cocaine" to "drug" in the trafficking and possession statutes. But it's not going to do the prosecution any good here. One of the classic definitions of an ex post facto law is one which reduces the proof necessary for conviction. Changing the law to remedy the problem in pending cases is no more constitutional than changing the law to make possession of any amount of cocaine a first degree felony.