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A tale of three cases

You have an appeal of right to the 8th District Court of Appeals, as well as the other district courts.  You don't have an appeal as of right to the Ohio Supreme Court.  They don't have to let you in.  And even if they do, they can kick you out without deciding the case.  That's known as being DIA'd -- the case is dismissed as improvidently allowed.  It means that while the court initially thought your case was important enough to consider, they've changed their minds, and don't want to bother with it.

The court decided one case yesterday, and DIA'd the other two.  It's hard to figure out why the first one made the cut, and the other two didn't.

Let's start with the one they did decide, State v. Gordon.  Gordon robbed his friend Tevaughn Darling of $7,300, shot him in the foot for good measure, and took off in Darling's rental car; one is left to wonder what Gordon would've done had the two not been friends.  Gordon was charged with aggravated robbery and felonious assault after Darling, who was initially reluctant because of Gordon's supposed gang connections, pressed charges.

Darling's lawyer picked up a DVD from the prosecutor's office of the police interview of Darling, and showed it to Darling on the lawyer's office computer.  The next day, the interview found its way to Instagram, doctored to make it appear that Darling was giving information about the Loyal Always Gang, who are definitely not people to be messed with.  Darling began receiving death threats, and went to the police to complain.  As he left the building, Gordon and another man were sitting in a car, and emphasized their point by calling "Mr. Officer, Mr. Officer," to Darling.

That got Gordon indicted for intimidation.  It also got Gordon's lawyer kicked off the case:  the State filed a motion to join the two cases, and to disqualify the lawyer, arguing that he was a key witness to the intimidation charge.  The court granted both motions, Gordon was tried, and convicted of the robbery but acquitted of intimidation.

Things got funky when it got up to the 8th on appeal.  The court reversed Gordon's conviction, holding that the lawyer didn't need to be disqualified from the robbery case, and that by joining the two cases, the court deprived Gordon of the lawyer of his choice. 

So up it went to the Supreme Court on the State's appeal.  The appellate court's decision had several problems.  First, the order removing Gordon's original attorney was a final order, and Gordon could have appealed.  He didn't; not then, and not in his subsequent appeal.  And Gordon's eventual lawyer at trial never objected to the joinder, which meant that it could only be reviewed for plain error.

That's a tough hill to climb, and the court decides the journey is unnecessary:  there was no error, plain or otherwise, in joining the two cases.  Since the intimidation arose out of the robbery prosecution, they could have been brought in the same indictment, and so met CrimR 8's requirement for joinder.  And since Gordon's original lawyer was a material witness to the intimidation charge -- he was the only one who could testify that Gordon saw the video -- he was also a material witness to the robbery charge. 

Or something like that.  The court acknowledges that "the issue of the deprivation of defendant's chosen counsel is in the background of this case," but in truth, it's the big issue.  Yet since it was not raised in Gordon's appeal to the 8th, there's no real way to address it.  The State's proposition of law was that a defendant isn't prejudiced from joinder of indictments because his counsel is disqualified absent a showing that the disqualification of counsel was erroneous, but that's never mentioned nor addressed in the court's opinion.  The outcome of this case is that the attorney was a witness in both cases since they were joined, but that's not a rule of law, that's simple error correction, and the Supreme Court doesn't do error correction.  Supposedly.

The court did have the opportunity to make a rule of law in State v. Zimmerman and State v. Terrell.

The facts are pretty similar.  Terrell and two buddies decided to rob a convenient store.  When things started going south, Terrell and one buddy ran; the other stayed, and killed a clerk.  Terrell wound up pleading no contest to murder and aggravated robbery with the three-year gun spec, and was sentenced to 21 to life.

Zimmerman story was more brutal; he participated in the murder of his uncle, then broke out of the juvenile detention center and into the home of a 70-year-old woman, and forced her, at knifepoint, to drive him to Fairborn, Ohio, where he was arrested.  He pled guilty to one count of murder and, with the three-year firearm specification, was sentenced to 18 to life.

There was one more similarity between the two.  Both were 17 at the time they committed the crime.  Both appealed, arguing that it was unconstitutional to impose a life sentence on a juvenile.

The Supreme Court accepted both appeals, but stayed briefing pending the disposition of State v. AndersonAnderson was decided last July; as I discussed at the time, it dealt mainly with the trial tax issue, although there was a juvenile overlay:  Anderson was 16 at the time of the crime, and argued that it was unconstitutional to impose a mandatory prison sentence or a mandatory sentence for a gun spec on a juvenile.  That went nowhere.

So, close to eight months after Anderson came down, the court DIA'd Terrell and Zimmerman.

Maybe the two cases wouldn't have gone anywhere.  Both drew support from the Supreme Court's decisions in Miller v. Alabama, which held that a state couldn't impose life without parole for a juvenile offender, even for murder.  While both cases emphasize the research on how the juvenile brain develops, as did Miller, the fact remains that life without parole isn't the same as 15 to life.

That's what the court could've said.  It didn't.  It found the issue in Gordon compelling enough to have argument and write an opinion about it.  It could've done the same for Terrell and Zimmerman.

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