One searches SCOTUSblog in vain for decisions which would be of interest to the uncounted hordes of this blog's regular readers; one of the Court's opinions last week deals with the Hague Service Convention's rules on international service by mail, and the blog's other opinion analysis is entitled, "Justices rein in Federal Circuit's lax rules on patent venue." Indeed, the major news last week was not what the Court decided, but who's likely to be on it next term: rumors are awash that Justice Kennedy is contemplating retirement.
If he does, he might miss his pals on the bench. Although familiarity often breeds contempt, another article in SCOTUSblog provides "empirical evidence that increased interpersonal interaction between judges leads to greater consensus on federal appellate courts, even the Supreme Court." And empirical evidence does: back in 1815, Chief Justice Marshall arranged accommodations for the justices so that they could live together during the term, and dissents dropped significantly, then rose again when the arrangement ended in 1830. Did you know that Marshall's account of this provided the basis for the 1978 movie Animal House? Of course you didn't, because I just made it up.
Some action down in Columbus, with two decisions. One was State v. Aalim, in which the court granted the State's motion for reconsideration and reversed the decision it made in December, which held that the mandatory bindover provision of juvenile law was unconstitutional. That merits its own post, which you'll see on Thursday, after I calm down a bit. (Yes, it was that bad.)
State v. Mutter presented a double jeopardy issue, and a relatively simple one. Mutter was charged with ethnic intimidation in the Portsmouth Municipal Court, along with a charge of aggravated menacing charge. The ethnic intimidation charge was dismissed without prejudice, a new charge of menacing by stalking was added, and Mutter pled guilty to both.
He was subsequently indicted for ethnic intimidation. That crime requires proof that the defendant committed certain offenses "by reason of race, color, religion, or natural origin" of the victim. The underlying crime he committed? Aggravated menacing.
Anyone notice the problem?
The Blockburger test is used to determine double jeopardy: to avoid the bar, each offense must have an element that the other does not. Here, aggravated menacing doesn't include the element of a racial animus, but ethnic intimidation includes all the elements of aggravated menacing; you can't commit the former without also committing the latter.
How the case got this far is a bit of a mystery. The trial court found in favor of Mutter, but the 4th District reversed, finding that the trial court's conclusion that the ethnic intimidation and aggravated menacing arose from the same incident wasn't supported by the record. The Supreme Court got beyond that problem because "at oral argument before this court, the state conceded" that the two arose from the same incident. What happened at oral argument in the court of appeals?
One minor note in Mutter. For the last several years I've been highlighting the trend in the court to use the Ohio Constitution as a separate basis for finding a rights violation. Kennedy, who wrote the opinion in Mutter, has long been an opponent of that theory, and here she writes that "the protections afforded by the Ohio and United States Constitutions' Double Jeopardy Clauses are coextensive." Given the change in the composition of the court -- and more on that when we talk about Aalim -- you can stick a fork in the argument that the Ohio Constitution's Bill of Rights has any meaning.
In the courts of appeals...
We all have our story about what an indictment will allege is a "deadly weapon." My favorite was "to-wit: a pencil."
Just about anything, including a pencil, can be a deadly weapon; it depends on how it's used. A few years back the 1st District affirmed a juvenile adjudication where the defendant had been convicted of CCW for having an inoperable gun, on the grounds that the gun could have been used as a bludgeon. So can a stone or a brick, said the Supreme Court in In re J.T., but that doesn't mean we convict people of CCW for carrying one of those. If an inoperable gun isn't used as a bludgeon, it's not a deadly weapon.
A BB gun is the instrument at issue in the 9th District's decision in State v. Bitting. The court places a lot of evidence on the fact that the BB gun carried a warning that it could "cause injury or death," and coupled with the fact that the defendant pointed the gun at the victim's face, decides that's sufficient evidence to support the deadly weapon conviction. Being the inquisitive person I am, I checked on how many people die from being shot by a BB gun. About four a year is the answer, according to the Consumer Product Safety Commission.
The law on whether a defendant can appear before the jury in shackles is fairly clear: unless there's an adequate justification, such as a danger of violence or escape, that's a due process violation which doesn't require a showing of prejudice. In State v. Black, the 10th District affirms a conviction where it's fairly clear that the defendant was shackled in front of the jury, at least during voir dire. Although the defendant, who was representing himself, made a motion to remove the shackles (which was granted, for the remainder of the trial), the court somehow decides that this didn't constitute an objection, reviews it for plain error, and decides Black can't prove that he was prejudiced.
The court doesn't spend any time deciding whether there was any justification for shackles, for good reason: Black was on trial for two misdemeanors.
This isn't why God invented Google. The moral of the 6th District's decision in State v. Henderson is that if you're going to avoid a murder conviction for shaking a baby, it's much better if you haven't conducted over 200 Internet searches using the term "shaken baby syndrome" during the week preceding the incident.