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 »


A switch in time

On December 23, 2016, the Supreme Court handed down its decision in State v. GonzalezGonzalez had been charged with cocaine trafficking, and the issue was whether the State had to show the pure amount of cocaine -- sans filler - to get more than a fifth degree felony conviction.  The court, by a 4-3 vote, held that the State did have to prove the pure weight.  Whether that was right or wrong doesn't really matter for purposes of our discussion.

Justice Lanzinger wrote the plurality opinion, joined by Pfeifer and O'Neal.  Kennedy concurred in judgment.  O'Connor dissented in an opinion joined by O'Donnell and French.

On January 3, the State filed a motion for reconsideration.

On Monday, the court granted the motion for reconsideration, and reversed itself, by a five to three vote.

So who changed their minds?  Nobody.  The difference was that Lanzinger and Pfeifer, two members of the original majority, were no longer on the court.  Their age had forced them into retirement, and they were replaced by Justices Fischer and DeWine.   And both of them voted with the State.

I've seen very few times that a motion for reconsideration has been granted, either at the Supreme Court or appellate level.  It's a tough hurdle:  you've got to show that the court failed to consider an issue that they should have, or that their decision depended upon a clear factual error.  "We think you made the wrong decision" doesn't cut it.

I read the State's briefs.  Yeah, they dressed it up, but it was still basically, "We think you made the wrong decision."

So, what key issue did the court decide it had missed?  What factual error had it committed?  O'Connor's opinion for the new majority offers not a clue; that entire question is disposed in the following manner:

The state contends that Gonzales I was decided in error and that it is based upon inconsistent application of the principles of statutory construction. A majority of the court grants the state's motion for reconsideration.

That sounds pretty much like, "Yeah, we know that we got it wrong.  And now, these new guys do, too."

The new guys, Fischer and DeWine, gave the issue more treatment.  To DeWine, the case was wrongly decided, and that was enough to grant reconsideration.  Fischer, on the other hand, voted against reconsideration and announced that he would vote against it on the other decisions handed down last December, and which the State has also sought reconsideration -- more on that in a moment.  That's a principled position:  essentially, he was being asked to reconsider something he'd never considered in the first place.

 Would that the only damage done here be a blurring of the standards for granting a motion for reconsideration.  It also pretty much trashes the idea of stare decisis.  The court has just announced that what the law is depends on who's sitting on the court.

We all know that, but rarely is it stated so boldly.  To be sure, opinions are reversed from time to time, but that's usually because in the interim some evidence has emerged to show circumstances have changed, or that the original opinion has proven to have serious flaws.  That's not the case here:  the ink was barely dry on the initial decision.  And it's not like Gonzalez would have done irreparable damage:  the problem was subject to a legislative fix, and that would probably have been done by the end of this month.

Gonzalez may not be the last word on this.  Just the day before Gonzalez I came down, the court decided State v. Aalim, holding that the mandatory bindover for juveniles accused of certain crimes was unconstitutional.  The State filed a motion for reconsideration of Aalim the same day it did in Gonzalez.  It also filed a motion to stay Aalim.  The court granted that on February 22, with only O'Connor, the author of the opinion, and O'Neill dissenting.  Stay tuned.

This should have been a line in the sand.  You don't reconsider decisions handed down just a few months ago because the composition of the court has changed.


Recent Entries

  • April 26, 2017
    Like Mark Twain, rumors of my demise have been greatly exaggerated. Except I am pretty sure he's actually dead, while I am not, and for that matter, nobody's spreading rumors that I am. Great lead, huh? The nice thing about...
  • April 20, 2017
    The Supreme Court takes a look at the trial tax
    And you thought this was the week you only had to worry about income taxes
  • April 18, 2017
    What's Up in the 8th
    Remembering Warren Zevon, and the Fourth Amendment lives
  • April 17, 2017
    Case Update
    Structural error, prejudice, and police run amok.
  • April 13, 2017
    Some arguments on sentencing
    Why oral arguments can be fun, even when they're not yours
  • April 12, 2017
    What's Up in the 8th
    Oh fun: declarations against interest v. non-hearsay. Also, the difference between not guilty and innocent, and Ohio's statute penalizing the refusal to take chemical test in a DUI case goes bye-bye
  • April 11, 2017
    Case Update
    Filibusters, and appellate cases on all the ways lawyers can screw up.
  • April 7, 2017
    Change of course
    A new approach in my client-attorney relationships
  • April 4, 2017
    What's Up in the 8th
    A true rocket docket, and Anthony Sowell pops up again
  • April 3, 2017
    Case Update
    Free merchant speech, an argument on Brady, another look at Creech