A year or so ago, I had an oral argument in the 8th District on a sentencing issue, specifically, what the post-Foster standards for sentencing were.  In the middle of my argument, one of the judges on the panel interjected, “Wasn’t the real effect of Foster to abolish appellate review of sentences?”

Last week, in State v. Yuravak, a different panel of the 8th took a stab at the question, and answered it in the negative.  The defendant had been convicted of a drug offense, and the trial court had imposed the mandatory drivers suspension, in this case deciding on the maximum period of five years.  The defendant had appealed, arguing that the trial court’s decision to defer imposition of that suspension until after the defendant had completed his prison time was an abuse of discretion. 

Wrong, said the court:  the standard isn’t abuse of discretion, it’s whether the sentence is contrary to law.  The 10th District came to the same conclusion last week.  On the other hand, you’ve got a raft of decisions — including some from the 8th and 10th Districts — that hold that abuse of discretion is indeed the standard.  And you’ve got the 11th District’s decision a month ago in State v. Hubaker, which says that abuse of discretion is the appropriate standard for most cases, but contrary to law can be used in some, and cases like State v. Nayar, the 7th District decision late last year which essentially held that a “hybrid” standard of review — using both abuse of discretion and contrary to law — was appropriate.

I’d parse these cases for some deeper meaning, but it all has a “how-many-angels-can-fit-on-the-head-of-a-pin” feel to it.  You can call it abuse of discretion, you can call it contrary to law, you can call it Zelda, and it still boils down to the same thing:  a trial judge in Ohio has unfettered power to impose a sentence, as long as it’s within the statutory limits, and as long as he doesn’t say something like, “I’ve always felt that colored people should be given longer prison sentences than white folk.”  On the record, anyway.

Back in 1995, when the Ohio Sentencing Commission was discussing different proposals for sentencing reform, it decided not to adopt a matrix system, similar to the Federal Sentencing Guidelines.  At the time, I thought that was a good idea.  I often felt that the Federal sentencing scheme would have made a great board game:  you and your opponents start out with your pieces (battleship?  hat?  shoe?) and move around the board, picking up levels for “role in the offense” and dropping them for “acceptance of responsibility,” and then you spin the wheel for criminal history level and Voila!  You wind up at level 28, and off you go for 121-134 months, but that’s less than anybody else, so you win…

District judges complained like crazy about how the Guidelines completely circumscribed their ability to hand out sentences which made some sense.  And rightfully so.  You don’t want a situation where wildly disparate sentences are handed down for the same conduct, and the perception becomes that the ultimate outcome of the case is wholly dependent on what judge you draw in the arraignment room.  But you don’t want cookie-cutter sentences, either, where the only exercise of judicial discretion becomes whether to choose the top or the bottom of a 154-166 month sentencing range.

But I’ve begun to do a lot more Federal sentencing work, and you know what? After Booker, Rita, Gall, and Kimbrough, sentencing discretion has been largely restored.  It’s guided discretion, to be sure; the court still has to calculate the guidelines and come up with some explanation for why it deviated from them, if it chose to do so.  The standard for appellate review is deferential, but not obsequious.

The result is that every week I read Federal sentencing decisions in which judges have carefully and articulately explained their reasons for choosing a particular sentence, and if they have not done so, they get reversed.  The large majority of sentences are within the Guidelines range, but that’s understandable:  the Guidelines themselves are the result of a careful study of sentencing over the years, and they’re a logical starting point for what the sentence should be.  But if the defendant’s is truly egregious and warrants more time, or the defendant’s character and rehabilitation show that he warrants less time, the judge can do that.

The idea behind the Ohio sentencing reforms in 1995 was also “guided judicial discretion”:  there was a sentencing range, and all kinds of factors which judges were supposed to take into consideration in fashioning a particular sentence.  The guidance provided for minimum, maximum, and consecutive sentences went out the window in Foster, and the decisions since then have eviscerated what was left.  Although the seriousness and recidivism factors are still there, they’re window dressing:  although the judge is supposed to consider them, he doesn’t have to make any findings with regard to them, and in fact there are decisions out there which say that he doesn’t even have to mention them — it will be presumed from a silent record that he did.

It’s obviously too much to expect for Ohio to establish a matrix-like grid for sentencing.  Frankly, it’s probably too much to expect them to do anything.  But if the concept of guided discretion, which was the heart of the 1995 reforms, is to be rescued, requiring more than just a ritualistic incantation that the court has considered the seriousness and recidivism factors under RC 2929.12 — or, even worse, pretending that the court has done so when there’s nothing to indicate that it has — might be a place to start.  Those kinds of findings would not fall within the Apprendi/Blakely analysis, would force the trial judges to engage in some sort of reasoning process when arriving at a sentence, and would allow for meaningful appellate review.

Hey, we can dream, can’t we?

The single most frequent cause of innocent people being convicted of crimes is mistaken identification.  This has been known for the better part of the past century, and it’s not getting any better.  The Innocence Project examined 174 cases of wrongful conviction (DNA evidence showed the defendant was innocent), and found that almost three-quarters of the convictions were based on mistaken identifications.  In almost twenty percent of the cases, the defendant had been misidentified by more than one person; in one case, he was incorrectly identified by five different witnesses. 

For the most part, the response of the judicial system has been to pretend this doesn’t happen.  Although the US Supreme Court highlighted the dangers of mistaken identification 40 years ago, and announced rules for preventing the use of unduly suggestive identifications, those rules have been folded into the “totality of the circumstances” test, with the result that cases of identifications being thrown out are about as common as Bigfoot sightings.  A few years back, I got assigned to an appeal where identification was the big issue, and I diligently researched every case over the past 20 years involving claims of suggestive identification.  There were 104 of them.  The identifications were upheld in 103.  The only case which was thrown out involved a 74-year-old woman who insisted that she’d identified the defendant in a lineup, which was called into question by the police officer’s unhelpful testimony that no lineup had in fact been conducted. 

Some of the problems with eyewitness identification are due to the inherent fallibility of perception.  Any number of studies have demonstrated that people do not accurately recall what they see, a problem made far more profound by the fact that juries are likely to accord eyewitness testimony greater credence than virtually any other form of evidence.  But a growing body of research has shown that problems also arise as a result of police procedures.

The guys over at the Eyewitness Identification Reform Blog (you’re really not surprised there is such a thing, are you?) chronicle an example of one such case, that of Thomas McGowan, who was convicted of rape based upon his identification from a photo array:

The photo array from which the victim selected his photograph was a sloppy collection of black and white photos, color photos, and photocopies of photos. Not surprisingly, Mr. McGowan’s photo was a color original. Further, after the witness tentatively pointed to Mr. McGowan, the investigating officer insisted that the witness make a positive ID, rather than allowing her to describe her level of certainty in her own words.

McGowan spent 23 years in prison for rape — from age 26 to age 49 — before DNA evidence demonstrated his innocence.

In fact, the new Dallas District Attorney, noting the frequent problems with photo arrays, is proposing a double-blind lineup procedure for the arrays: the police officer who shows the witness the pictures doesn’t know which picture is the suspect’s, or whether he’s even included in the pictures.  The use of a double-blind procedure is universally followed in all fields of research, because it eliminates any possibility of even unconscious bias; if the officer doesn’t know who the suspect is, he’s not going to communicate any information at all to the witness.

What struck me about this is that I’ve been doing this blog now for exactly two years.  Although the blog is devoted to Ohio — that’s what it says up in the corner — I’ve spent a fair amount of time checking out what’s happening in criminal law in other jurisdictions, and there’s a lot going.  There’s reform of sentencing laws, like remedying the crack-cocaine disparity, or getting away from the “lock-em-up” mentality that has resulted in the United States holding more prisoners than any other country in the world.  There’s reform of criminal procedures, like video- and audio-taping all police interrogations to ensure the integrity of confessions – about 15% of wrongful convictions stem from “confessions” by innocent people.  Discovery rules have been liberalized to reduce the possibility that exculpatory evidence might be missed.  My God, the prosecutor of Dallas — Dallas – is concerned enough about wrongful convictions that he’s instituting identification procedures which will reduce that possibility.

None of this is happening in Ohio.  The only effort at resolving the crack-cocaine disparity was a proposal which would have simply elevated cocaine penalties to the same level as those for crack.  Sentencing is far worse now than it was before the sentencing “reforms” of 1996.  The defense bar has been trying to get fairer discovery rules for years, to no avail.  Nobody’s even talking about videotaping confessions or making sure that identification procedures are fairer.  Even the Telfaire instruction, a proposed jury instruction which details the manner in which a jury should evaluate identification testimony, is of limited value:  the Ohio courts have not done anything more with the instruction than hold that the trial court has discretion whether or not to give it.

Estimates are that as many as 10% of the people convicted at trial are actually innocent.  There’s all kinds of empirical research coming out now explaining how that happens, and how to prevent it.  As far as Ohio is concerned, that might as well be happening on another planet.  There’s no discussion of sentencing reform — more on that tomorrow — and virtually no discussion of reforming criminal procedures.  Most of that stuff isn’t even on the radar.  You won’t find case law discussing it, you won’t even find the defense bar pushing any of this stuff.

At some point in time, that’s got to change.

There were a couple of decisions on consecutive sentencing last week.  One, State v. Caraballo, was pretty straightforward.  The defendant had pled guilty to two counts of rape and two counts of gross sexual imposition.  He may or may not have had cases pending in Missouri and in Summit County as well — the record wasn’t clear — but just to be on the safe side the judge gave him three and a half years, and ordered that that sentence be served consecutively to anything he got in Missouri or Summit County.

The 8th District nixed that, citing a number of cases, including one from the Ohio Supreme Court, holding that such “anticipatory sentencing” is impermissible because “it interferes with the discretion of the second trial judge to fashion an appropriate sentence.”

The other case on consecutive sentencing last week was the Ohio Supreme Court decision in State v. Bates.  Bates represented the flip side of Caraballo:  in Bates, the Miami County trial court imposed a sentence consecutive to one that a Montgomery County court had already imposed.  The question was “whether a trial court has the authority, generally, to order a prison sentence imposed by it to be served consecutively to a prison sentence previously imposed by another Ohio court.”

That might have been problematic two and a half years ago.  At that time, Ohio’s sentencing laws, specifically  RC 2929.41(A), contained a presumption for concurrent sentences, and consecutive sentences couldn’t be imposed unless the judge made certain findings.

Of course, those findings resulted in State v. Foster, which held that judicial fact-finding was prohibited by the US Supreme Court’s decision in Blakely v. Washington.  The statute which required factfinding for imposition of consective sentences was held unconstitutional and excised from the statutory scheme as was RC 2929.41(A).  The Price court thus had no problem concluding that

the trial court now has the discretion and inherent authority to determine whether a prison sentence within the statutory range shall run consecutively or concurrently, and we hold that the trial court may impose a prison sentence to be served consecutively to a prison sentence imposed on the same offender by another Ohio court.

If that were the only result, it would be unexceptional.  The problem is not the destination, but the journey the court took to reach it.  Basically, as the court viewed it, 2929.41, by creating a presumption of concurrent sentences, was in derogation of the common law rule.  And what was the common law rule?  The Court quoted the language from a 1963 case, Stewart v. Maxwell:

Inasmuch as making sentences for different crimes run concurrently is in the nature of a reward to the convict, * * * it follows that a positive act is required on the part of the sentencing court to cause sentences to run concurrently; and * * * if the entry is silent as to how sentences shall run, it is presumed such sentences will run consecutively.

Does that mean by throwing out 2929.41, we go back to the common law rule, and if the judge doesn’t specify whether sentences are concurrent or consecutive, they’re deemed to be consecutive?  Let’s put it this way:  if I’m representing a defendant that’s being sentenced for multiple crimes, I’m going to do everything I can to make sure the judge includes language that the sentences are to be served concurrently.

I spent a fair amount of time yesterday talking about the Supreme Court’s decision last week in State v. Blackburn.  Then again, when do I not spend a fair amount of time talking?  Today’s note will be shorter, though; the subject, State v. Colon, handed down a couple of weeks back, is a good bit more straightforward.  Its impact is also much more significant.

It doesn’t take much more than a couple of paragraphs to describe what happened in Colon.  The defendant was charged with a single count of robbery, in words virtually identical to those found in the statute: 

[I]n attempting or committing a theft offense, as defined in Section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense upon [the victim, the defendant did] inflict, attempt to inflict, or threaten to inflict physical harm on [the victim].

Major problem:  nowhere does it allege a mens rea requirement.  Prior case law says that when a statute doesn’t provide an intent requirement, and doesn’t plainly indicate a legistative desire to create a strict liability offense, a reckless intent is the minimum required.  But that intent has to be alleged in the indictment:  in Colon, everybody agreed that the failure of the indictment to do this made it defective.

What to do about that was the question.  After all, the defendant hadn’t raised the defect, either before or at trial.  That normally would have required analysis under the plain error standard, but the Court decided that the omission of an intent element in the indictment (and, or course, in the instructions to the jury) was so damaging to the overall integrity of the trial that it constituted structural error.  Which means that it requires reversal; there’s no such thing as a “harmless” structural error.

As the three dissenters — Lundberg Stratton, Lanzinger, and O’Donnell — point out, that’s a pretty broad reading of the term “structural error”; the dissent cites several cases that have gone the other way.  There’s merit to that argument.  Traditionally, structural error has been limited to those situations in which the error so infects the proceedings that one can have no confidence in the integrity of the outcome; denial of the right to counsel is perhaps the clearest example.

Be that as it may, for now at least, Colon has some major ramifications.  First, it casts into question a goodly number of indictments:  any count that doesn’t include a mens rea requirement is no good.  What’s more, that’s not something that can be cured by amendment, at least over objection by the defendant:  adding an element would certainly “change the identity of the crime,” and thus would not be a permissible amendment under Rule 7(D).  Finally, since structural errors can’t be waived, they can theoretically be raised at any time, and since the error is one of constitutional dimensions, it can be raised by way of a petition for post-conviction relief.  Normally, such petitions have to be filed within about six months of the conviction, but I’m not even going to try to predict how the Supreme Court’s going to resolve the time requirement.  Given all the people serving void prison sentences because they weren’t properly advised of post-release controls, and all the people now serving sentences under defective indictments, it’s possible that only about 20% of the Ohio prison population should actually be there.

One more comment:  this was another win by the Cuyahoga County Public Defenders’ Office, which has one of the best and most successful appellate divisions in the state.  Public defenders as a group are paid crap, and on top of that they’re treated as second-class lawyers by the public they serve and by a not inconsiderable portion of the bench and bar.  Colon was a big win for the defense bar, and my hat’s off to the gang over the Cuyahoga County PD’s office.

The Ohio Supreme Court handed down a couple of criminal law decisions in the past few weeks.  One has relatively narrow impact; the other could have substantial significance.  I’ll talk about the latest speedy trial case today, and a decision on the mens rea requirements in indictments tomorrow. 

The first is State v. Blackburn, which deals with how the speedy trial statutes affect serial prosecutions, i.e., either where the prosecution dismisses an indictment, and then reindicts the defendant, or where it subsequently adds new charges arising out of the same facts.  The law’s pretty clear that if a defendant’s indicted, the charges get dismissed, and then the prosecution refiles the indictment, speedy trial carries over:  all the time run up during the first case is carried over and applied to the second.  (Needless to say, if additional charges are simply added, the speedy trial clock continues running from the time of the original arrest.)  This applies regardless of whether the new indictment is the same as the old one, as long as the new indictment arises out of the same incident, and the state had sufficient knowledge to bring the charges at that time. 

The question, though, is what happens if the defendant has waived time, or filed motions which toll the time, in the first case:  does that carry over to the second? 

The first time the court addressed that question was in State v. Adams, back in 1989.  In that case, Adams had been charged with DUI under one section of the statute, then subsequently with the same offense but under a different section.  In the first case, he’d waived time to a specific point on several occasions, but the court held that these didn’t carry over.  Why?  Because for a waiver to be valid, it “must be done knowingly, voluntarily, and intelligently.”  Since the charges against Adams in the second case weren’t the same as in the first case, his waiver in the first couldn’t meet that test.

The issue next came up in 2000, in State v. Homan.  In that case, the defendant was originally charged with DUI, and filed a motion to suppress.  The state subsequently added a charge of child endangering, based on the same facts, but the Supreme Court held that the tolling caused by the filing of the motion to suppress didn’t apply to the subsequent charges.  Again, the defendant’s unawareness of the new charges was critical:

When a defendant is unaware of the precise nature of the crimes charged, he or she cannot make informed and intelligent tactical decisions about motion filings and other matters.

So now we get to Blackburn.  The defendant had been arrested for “illegal conveyance of weapons or prohibited items onto the grounds of a detention facility or institution” in December of 2004.  The charges were dismissed five days later.  He was indicted on the same offense in February of 2005, and after several continuances requested by the defense, mainly to get new counsel, the prosecution dismissed that case in December of 2005.  It then reindicted him, this time for trafficking in drugs, in February of 2006. 

The trial court tossed it, and the appellate court affirmed, finding that the delays in the previous case didn’t carry over into the present one, based on Adams and Homan.  The Supreme Court reached a different result, making a galliant, if eventually unconvincing, attempt to distinguish both of the earlier cases.

The Blackburn court first drew a distinction between waiver and tolling.  In Adams, the defendant had waived time to a specific point; in Blackburn, the defendant had filed motions which tolled the time.  The effect was the same — the running of the speedy trial was suspended — but the outcome is different:  The time tolled by Blackburn’s motions are counted against him, while Adams’ waivers are not counted against him.

The distinction between waiver and tolling makes some sense, I suppose, although that distinction is undercut by the analytical error in Adams:  in that case, the court applied the test for waiver of a constitutional right to the waiver of a statutory right.  More troubling, though, is the Blackburn court’s treatment of Homan.  It’s difficult to reconcile Blackburn and Homan, and the court makes a half-hearted stab it:

Unlike Homan’s tactical decision to file a motion to suppress, Blackburn filed the motion to continue the trial to allow his newly hired counsel time to prepare.

Why one is a “tactical” decision and the other isn’t is not explored further.  More problematically, Blackburn winds up overruling Homan without ever saying so.  Here’s the syllabus from Homan:

When a criminal defendant files a pretrial motion and the state later files against the defendant additional, related criminal charges, R.C. 2945.72(E) does not extend the time within which the defendant must be brought to trial on those additional charges.

And from Blackburn: 

In calculating the time within which a criminal defendant must be brought to trial under R.C. 2945.71, periods of delay resulting from motions filed by the defendant in a previous case also apply in a subsequent case in which there are different charges based on the same underlying facts and circumstances of the previous case.

The reference to 2945.71 in the latter case is somewhat misleading; although that is the general statute on speedy trial, ”periods of delay resulting from motions filed by the defendant” are governed by — you guessed it — 2945.72(E).

So what’s a poor lawyer (or judge) to do?  The net effect of Blackburn is to continue the court’s trend of turning the admonition that the speedy trial statutes are to be construed strictly against the state on its head.  In fact, the court expressly states that the ”the public’s interests. . . in the prompt adjudication of criminal cases” has to be balanced against the interest “in obtaining convictions of persons who have committed criminal offenses against the state.”  While that may be true, there have been very few cases in the past decades which indicates that this court places much if any importance on the public’s — and the defendant’s — interest in prompt adjudication.  

If you didn’t see the Case Update when you checked here yesterday morning, it’s posted below.  I screwed up and set it to show up at 7:40 in the evening instead of 7:40 in the morning, and didn’t catch it until noon.

Since most of my readers are from Cuyahoga County (the other one’s in Cincinnati), I figured I’d do a post on several 8th District cases in the last few weeks which merit some special attention, dealing with speedy trial, expert testimony in child rape cases, and the drunk driving statutes.  Now there’s an eclectic mix… (more…)

Fernando Cabrales had plans for the 300 pounds of marijuana he was bringing into the state, but those plans went out the window when the two guys he’d hired to drive it to Cincinnati got busted, and wasted no time in rolling over on him.  His woes compounded when he was charged with three separate offenses regarding the same 300 pounds of marijuana – possession, preparation for distribution and sale, and sale — and upon his conviction, was sentenced for all three.  (more…)

…on vacation, the 8th District wasn’t, and handed down several decisions of significance.  A quick summary:

First up is State v. Henderson, where the defendant’s charged with murder and having a weapon under disability.  Under the law, the defendant can choose to bifurcate the case, and have the judge determine the disability charge.  In this case, the judge started the case by announcing that’s what he was going to do.  The appellate court tosses it, saying that when a defendant chooses to bifurcate and have the judge decide the weapons charge, the court has to comply with the normal requirements for a jury waiver:  the waiver has to be in writing, signed by defendant, filed, made part of record, and made in open court.

Then there’s State v. Aponte, another bench trial, in which the defendant was charged with receiving stolen property, and the judge found him guilty of an attempt.  The defendant argued that there was no way the judge could have found him not guilty of the completed crime, but guilty of an attempt, but the panel held that the judge wasn’t required to find him not guilty of RSP before finding him guilty of the attempt to commit the crime.  The case law generally holds that conviction of a lesser offense is an implicit acquittal of the greater offense, but the court holds that an attempt is “more closely related to an offense of inferior degree.”  The opinion gets funky in a major way at that point, delving into mitigating factors, abandonment, affirmative defenses, and just about everything except the rule against perpetuities.

The key case of the lot is State v. Holder, a child-molestation case in which the defendant was charged with five counts of rape and gross sexual imposition, and two counts of sexual battery.  They were “carbon-copy” or “copy-cat” indictments:  there was nothing to differentiate any of the rape counts from the other rape counts, ditto the GSI and battery counts.

I’d talked about this problem before, with regard to the 8th District’s decision last fall in State v. Ogle, along with the 6th Circuit’s decision in Valentine v. Konteh.  The upshot of those decisions is that such “copy-cat” indictments pose double jeopardy problems:  if two counts are indistinguishable, and the defendant is convicted of one and acquitted of the other, how do you tell what he was convicted of and acquitted of?  While the defendants in Ogle and Valentine made that argument on appeal, the defendant in Holder decided on a pre-emptive strike:  he filed a motion under Rule 12(C) to dismiss the indictments because they presented a double jeopardy problem.  The trial judge agreed, and dismissed all but one count of each of the three charges.  The state appealed, but the panel noted that it had never sought to amend the indictment or bill of particulars, so Holder’s argument was valid.

The upshot:  if you’ve got a case where the prosecution alleges that your client raped somebody x number of times over several years — which is a common feature in those cases — and there’s nothing in the indictment or the bill of particulars to distinguish one count from the other, the court’s got to kick out all but one.

Last, we bring you State v. Langford, a felonious assault case featuring what is commonly known here in Cuyahoga County as a “baby’s mama drama”:  two women, one dating a particular gentlemen and the other having had a child with him, get into a tiff.  The victim in this case happened to have had $600 on her, which the assailant allegedly stole. 

The highlight of the case was the testimony that the perpetrator hid money in her crotch, and what happened to it after that.  Think you want to be a police officer?  Read this from the court’s opinion: 

Defendant’s testimony that she kept the money in her pocket at all times and that it could not have been soiled when she became incontinent was simply unbelievable given the very graphic testimony by the institutional guard who found the money and the police officer who had the task of counting the money after it had been recovered from her. 

Eeeewwwww.  

Every now and then, you come across a case where the only opinion is a dissent.  That happened in the Ohio Supreme Court’s decision last week in State v. Mercier.  The case was pretty cut and dried:  the police had searched the purse of an occupant of a motor vehicle, and the Court’s opinion, in its entirety, states, “The judgment of the court of appeals is affirmed on the authority of Wyoming v. Houghton (1999), 526 U.S. 295.”  That case, which you can read here, established a bright-line rule that if the police have probable cause to search a car, they may also search containers found in the car, even if the containers belong to a passenger, and even if the police don’t have any basis for believing that the passenger committed a criminal act.

There’s a key difference between Mercier and Houghton, though, which Justice Lantzinger hones into in her dissent:  in the latter case, the police came across the purse during the search; its owner was outside the car, and didn’t even admit ownership of it until the police found her ID in it.  In Mercier, on the other hand, the passenger was holding the purse at the time the police officer told her to get out of the car, and also told her to leave the purse in the car.

Lantzinger makes a fairly good argument about the privacy value of a purse and that the factual differences in the two cases warrant a different result.  Given that the police in Mercier admitted they had no reason to suspect the passenger of anything, allowing them to bring the case within the Houghton rule by the simple expedient of telling her to leave her purse in the car is a bit unsettling.  Given the US Supreme Court’s growing preference for “bright-line” Fourth Amendment rules, though, it’s hard to say that the Ohio Supreme Court got Mercier wrong.

The same thing can’t be said about its other decision last week, in State v. Fairbanks.  A police officer had seen Fairbanks go left of center, and put on his sirens to apprehend him; Fairbanks took off, and wound up crashing his car.  He was charged with various traffic citations for this, including one for reckless operation, which he pled to and paid the fine.  A few months later, the state indicted him for failure to comply with an order of a police officer.

That offense is normally a misdemeanor, but becomes a third degree felony if the flight “caused a substantial risk of serious physical harm to persons or property.”  Fairbanks argued that reckless operation, which prohibits operating “a vehicle * * * on any street or highway in willful or wanton disregard of the safety of persons or property,” was a lesser-included offense of the third-degree felony variant of failure to comply, and that his plea to the former offense barred prosecution of the latter under double jeopardy.

That seems to be a pretty simple, and convincing, argument.  Driving with “wanton disregard of the safety of persons or property” is indistinguishable from driving so as to “cause a substantial risk of serious physical harm to persons or property.”  Under normal lesser-included-offense analysis, that would make reckless op the lesser included of third-degree failure to comply, with the latter requiring the additional element, of course, of refusing to obey a police officer.

How the Court comes to a contrary conclusion makes for an interesting, if unconvincing, read.  In fact, the basis for the Court’s conclusion isn’t entirely clear:  it seems to be that the “substantial risk” language of the third-degree felony variant of failure to comply isn’t an element, but merely an “enhancement” of the basic crime:

It is analogous to determining whether the offense occurred in daylight or in darkness or whether the place where it occurred was dusty or wet. It is simply a finding of the presence or absence of a condition.

Essential to the Court’s finding in this regard is its determination that the “enhancement” requires no “culpable mental state”; in other words, although the state has to show that the defendant “willfully” fled the police, whether that created a risk of substantial danger to person or property is a matter of strict liability.  The Court determines that the legislature “clearly intended” such a result, and cites State v. Jordan in support of that conclusion.

If you read State v. Jordan, though, it actually runs contrary to the result in Fairbanks.  In Jordan, the the defendant had been charged with possession of a dangerous ordnance; the statute required that the defendant “knowingly possess… a dangerous ordnance,” and the state argued that the “knowingly” requirement only applied to the “possession,” and that whether the instrument was actually a dangerous ordnance was a matter of strict liability.  The Court rejected that interpretation, noting that while “different elements of the same offense can require different mental states,” the General Assembly had specified a culpable mental state, and “nothing in the language of the statute would lead us to conclude that the General Assembly plainly indicated its intention to impose strict criminal liability in determining whether” the statute was violated.  The emphasis was the Court’s, and there’s nothing in the failure to comply statute which plainly indicates that the legislature intended to the “substantial risk” element to be a strict liability offense.

Lantzinger — again — does a nice job in her dissent (joined by Pfeiffer), all for naught, of course.  It’s nice to have logic on your side, but if you don’t have the votes, it doesn’t matter much.

Michael Hurn was in deep trouble.  He was on trial for possession with intent to distribute 150 grams of powder cocaine, and 450 grams of crack cocaine base.  As anyone who’s familiar with Federal sentencing knows, the powder cocaine was the least of his worries; a conviction on that would have meant a sentence of between 27 and 33 months.  The crack cocaine, on the other hand, would result in a prison sentence of close to two decades.  So he must have been mighty relieved when the jury bought his argument that the crack cocaine belonged to other people who lived in the house the police raided, and acquitted him of that charge.

Then the probation officer prepared a report concluding that the preponderance of the evidence presented at trial showed that Hurn had possessed the crack, too.  The trial judge agreed, and imposed an 18-year sentence, which was affirmed by the 4th Circuit.  Earlier this week, the Supreme Court denied certiorari. (more…)