Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Prior calculation and design

In the past couple years, the 8th District has reversed six aggravated murder convictions, reducing them to murder the evidence of prior calculation and design was insufficient. 

The prosecutors' office here went nuts.  They took every single case to the Supreme Court, the Memorandums in Support of Jurisdiction becoming increasingly strident as they cast the 8th District as having gone rogue.

Not that the State's caterwauling was without merit.  One of the six cases was mine.  My explanation for my victory is this:  There are 221 possible combinations of judges for a panel in the 8th.  I lose that case in 185. 

Things finally came to a head:  the Supreme Court accepted two cases, Shabazz and Walker.

Both cases arose from the same bar shooting.  Everything was captured by the bar's video cameras, which greatly benefited the State; otherwise, their case would have been the testimony of a bunch of drunks.

Here's what the video showed.  Steele spilled champagne on Anderson.  Steele then went over to Shabazz and Walker.  The three talked for about fifteen minutes; Anderson believed they were plotting against him and his friend Shannon, although there's nothing in the video to support this, and Anderson offers no specifics.

About fifteen minutes after the champagne incident, Steele rushed across the dance floor and hit Anderson from behind with a bottle.  At that precise moment, Shabazz and Walker were standing about fifteen feet from Anderson, looking in a different direction.

And then things go all to hell.  It turns into a general melee among the bar's patrons, and a couple of minutes later Walker, Shannon, and Shabazz were rolling around on the floor. 

At that point, Walker remembered that he'd brought a gun to a fistfight.  In the next 22 seconds, he got up, walked behind a pillar, and shot Shannon in the back.

Ohio may be about the only state that requires the defendant to prove self-defense, but it's also one of the very few which require more than premeditation for the highest level of murder.  When the legislature modernized the criminal code in 1974, it required proof of prior calculation and design.

So what's the diff?  Well, prior calc is more than premeditation, but that's about all we know. 

Shabazz was actually accepted, briefed, and argued first; Walker was held for briefing.  Nine months after the oral argument in Shabazz, the court belatedly decided that it shouldn't have taken the case in the first place, and dismissed it.  So Walker was up.

I'd taken over Walker from the lawyer who'd won it in the court of appeals.  The State's case was that a jury could properly infer from Anderson's testimony that Shabazz and Walker were indeed plotting against him, and that would be more than enough to show prior calculation and design.  One problem with that, though, is that if there was a plan, it was to assault Shannon and Anderson, not kill them.  The second problem was the fact that it wasn't "evidence," it was just Anderson's opinion, and there wasn't any real evidence to support it.

I was more worried about the 22 seconds.  To be sure, there are cases referring to the "minutes" needed for prior calculation and design, but the court has long insisted that there isn't any definite bright-line rule.  There are some cases, especially appellate decisions, which suggest that the time it takes to walk into the kitchen, grab a knife, come back out and stab someone is sufficient to fall on the short side of whatever line there is. 

I needn't have worried; State v. Taylor came to the rescue.  Taylor was the 1997 Supreme Court decision that laid down a three-part test for determining whether a defendant had acted with prior calculation and design:

(1) Did the accused and victim know each other, and if so, was that relationship strained? (2) Did the accused give thought or preparation to choosing the murder weapon or murder site? and (3) Was the act drawn out or "an almost instantaneous eruption of events"?

 And that's what carried the day.  Walker and Shannon hadn't even met, let alone had a strained relationship, prior to the incident.  Walker hadn't given any thought to the weapon or site; he'd brought a gun along, and went into the tavern, but those decisions were made before he met Walker.  As for the "instantaneous eruption of the events"?  The video helped me there.  If you've ever seen something degenerate into a mob scene, that's exactly the image that's married to that description.

Walker's a great case for defendants, especially at the trial level.  It's a quick read -- the majority opinion clocks in at a brisk ten pages -- and it comes pretty close to saying that if the Taylor factors aren't present., it's not prior calculation and design.

The reason I say that it's especially effective at the trial level is because law always is.  Appellate judges have the luxury of reading briefs, having law clerks do research, and taking whatever time is necessary for everybody to make up their mind.  Trial judges don't.  I guarantee you, you drop a Memorandum on the court at the time you make your 29, citing Walker and attaching a copy of it, and if the Taylor factors aren't there, you're going to get a reduction to murder 95% of the time. 

That's big.  If you've got a case involving prior calculation and design, Walker's your go-to decision.

One more thing.  If you want to make the case that oral argument doesn't matter, this would be Exhibit "A."  Chris Schroeder, a kid from the prosecutor's office -- I've got shirts older than him - was absolutely unflappable.  Me?  Well, I have yet to be able to bring myself to watch it.  The best indication is that a friend of mine had been at my oral argument in Walker and in State v. Thomas.  We both agreed that I'd nailed the landing in Thomas.  (I won Thomas the same day I argued Walker.)  We didn't even talk about Walker.

But I wrote a brief that was killer.


Recent Entries

  • June 28, 2017
    Plea Bargaining -- The defendant's view
    A look at the Supreme Court's decision last week in Lee v. United States
  • June 27, 2017
    What's Up in the 8th
    A worrisome decision on expert funding, and, mirabile dictu, a court's dismissal of a case for a discovery violation is upheld
  • June 23, 2017
    Crime and the First Amendment
    Facebook and sex offenders, and encouraging someone to kill himself
  • June 20, 2017
    What's Up in the 8th
    I come a cropper, plus inventory searches and mandatory probation
  • June 19, 2017
    Case Update - SCOTUS
    What's coming up in the US Supreme Court in the next two weeks
  • June 12, 2017
    What's Up in the 8th
    After weeks in the desert, we come upon an oasis of defense wins
  • June 7, 2017
    A switch in time
    Why what the Supreme Court did in Aalim II and Gonzales II is a bad thing
  • June 6, 2017
    What's Up in the 8th
    A turnabout on prior calculation and design, and harmless error in all its manifestations
  • June 5, 2017
    Case Update
    A death penalty case, fourteen years after the crime, and we're just getting started. And two appellate decisions on search and seizure.
  • May 31, 2017
    What's Up in the 8th
    "What's a law enforcement accountability activist?" asked someone never, but the answer is here. Plus, cell phone experts, joinder, and the fading glory that was State v. Hand.