Wednesday’s morning started with a visit with my client Stan.  I got assigned his case two days before:  felonious assault, with a pregnant victim specification.  I get the State’s discovery, and the police report says the victim, Stan’s ex-girlfriend, was talking with a friend when Stan ran up, brandishing a silver knife, and holding it against her throat while telling her he was going to kill her because she was pregnant with another man’s child.

Then he left, with her unharmed.

There’s also a statement by her, in which the silver knife has now become a box-cutter, and the friend has become her brother-in-law.  On the state’s witness list, the only non-police officer is the alleged victim, so friend/brother-in-law didn’t make the cut.

Stan’s being held on a $100,000 bond, and when I visit him on Wednesday morning, he tells me that the ex-girlfriend is a crack addict who’s constantly pestering him for money.  I check her record, and sure enough, she’s got twelve prior felonies.  At the pretrial an hour later, I lay this all out for Marty, the prosecutor, and tell him he needs to stop at Petsmart that night to buy a leash for the case.  Marty’s a good guy; he pretends to like the line, and tells me he’ll bring the victim in and see what she says; if it’s fishy, he’ll get the case dismissed.

Then I go to my next pretrial, and wind up in a three-way gunfight from The Good, the Bad, and the Ugly.  Cornelius is charged with beating the crap out of a guy and stealing his money, but they don’t have a good case.  Cornelius isn’t a good guy, though, either, with about 15 prior convictions, including one for aggravated burglary, for which he was sentenced to three years in 2005.    So here’s the situation.  The prosecutor thinks I can get a deal for a 4th degree felony, but won’t ask her supervisor unless my client commits to taking it.  Cornelius won’t commit to taking it unless he knows what the judge is going to do at sentencing.  And the judge won’t tell us what she’s going to do at sentencing until the prosecutor makes the offer of the 4th degree.  I was going to suggest we all do a rock/papers/scissors contest to work it out, but instead we’re going to come back on Friday and see if something magic happens in the meantime.

It didn’t the previous two weeks, which I spent in trial in a murder case for a client we’ll call Anthony, accused of killing a victim we’ll call Shelly.  Back in June of 2002, Shelly’s mother came to her house and found Shelly lying dead on the living room floor; she’d been stabbed three times in the chest, and had bled to death.  Later that evening, Anthony went to the police and informed them that he’d been there the night before.  He’d known Shelly for some time, and that night they’d done some weed, and she asked him to go out and get some more.  When he came back a couple of hours later, he found her lying there.  He picked her up and asked her who’d done this, he told the police, but she took her last breath before she could tell him.  He paced around for thirty minutes, trying to figure out what to do, then wiped off the door knobs and left, tossing his blood-stained shirt into a dumpster before going home to his girlfriend.  He told her and another friend the whole thing the next day, and decided to go the police.

They held him for a couple days, then released him.  The Feds gave Cleveland some money to open a cold-case squad in 2007, and in 2010 they got a DNA sample from Anthony and ran it against some fingernail scrapings that had been retrieved from Shelly; it came back positive.  Antoine got indicted, and Dave, another lawyer from my office, and I spent the middle part of the past month trying it.

And man, did we try the hell out of that case.  I don’t do a whole lot of trial work — maybe two or three a year — but Dave does a lot more, and he’s very, very good:  he was given the lifetime achievement award by the local criminal bar a couple years back.  There’s a number of things you need to be a good trial attorney — good speaking skills, being able to think on your feet, a good understanding of the rules of evidence — but there’s no substitute for experience:  learning how to judge witnesses and knowing just how far to take them.  When we were prepping for the cross-exam of the detective, for example, I suggested pressing him on a particular issue.  “Nah, you don’t try to hit a home run with the homicide cops,” Dave said, “You just make your points and sit down before they bury you.”

I’ve often maintained that defense attorneys don’t win cases by putting evidence on; they win by trashing the evidence, or keeping evidence out.  That latter one was key here.  Somebody had to have killed Shelley.  Our nominee was the father of her two-year-old child.  Shelley had been on the phone that night with her good friend Lora, and told Lora that the baby’s daddy was coming over; in fact, she ended the phone call by telling Lora that the guy had just pulled up.  Our big boost came when they took a paternity test of Anthony after he was indicted and determined there was no way he was the baby’s father.  Of course, that didn’t preclude the possibility that Shelly thought Anthony was the father of her child, and there was some key evidence on that point:  Lora said as much in her statement, and Anthony had told the police that Shelly didn’t know for sure who the father was.  We kept all that out.  And we did a fairly good job of muting the fingernail DNA evidence.  On cross I asked the analyst some questions about how DNA can be found in skin cells, and how easily those cells are shed.  I then walked up to her, had her hold out her hand, and ran my fingernails lightly over the back.  “Could that be enough to pick up some of your skin cells?”  Yes, she agreed.  “So if I walked out of the courtroom and wound up dead, they’d find your DNA underneath my fingernails, right?”

Good theatre, and the closing argument went well, too, with us precisely outlining the faults in the state’s case and all the reasonable doubts lurking therein.  The jury was mightily impressed, too; they took a whole three hours before coming back with a conviction.

And it didn’t surprise me in the least.  It was funny; I spent the entire case game-planning the strategies, coming up with ways to attack each little point, explanations for every aspect of the case, but by the time the closing arguments were done and we were walking out of the courtroom, I knew it was over.  Because stripped of all those niggling little points and counterpoints, it came down to this:  Anthony’s story was physically impossible.  All the blood was in the kitchen, indicating Shelly had been killed in that room and then dragged into the living room.  Plus we had a guy who not only didn’t call the police, but wiped his fingerprints off both doors, not just the one he claimed he came in through, and then ran off, threw his blood-stained shirt into a dumpster, and got rid of the van he was driving that night.  (The police never found it.)  And, of course, the ultimate irony:  if Anthony hadn’t made the statement, they wouldn’t have had anything on him.  Without that, they wouldn’t have even been able to put him on the scene.

So a bit of a lesson:  sometimes you can get so caught up in the intricate details that you lose sight of the big picture.  Reminded me of what one judge told me about another one time:  “Yeah, Ben, he saw a lot of trees in his career.  Never saw a forest, but he sure saw a lot of trees.”

Those forests will get you every time.

One of the problems with the second approach is that it makes my job harder, because the resulting opinions are usually much longer, as evidenced by the 8th District’s decision a couple weeks back in State v. Bolton, which addressed XIV — whoops, fourteen — assignments of error and clocked in at a healthy 43 pages.  But it also sometimes results in a legitimate issue getting buried, and that’s what might have happened in Bolton.

Bolton was convicted of rape, kidnapping, and gross sexual imposition for an incident that happened in 2003 when, four years later, the DNA database turned up a match with the semen found in the victim.  That provides the basis for the very first assignment of error, which focuses on how Bolton’s DNA was collected.  That happened when Bolton was incarcerated for unrelated charges; RC 2901.07 required DNA testing of anyone convicted of a felony offense or certain misdemeanors. 

There are some interesting 4th Amendment issues here.  Five years ago, I wrote about a decision by a US District judge upholding the objection of a man convicted of social security fraud to being compelled to give a DNA sample for storage in the database.  The Ohio statute’s been since amended to allow collecting a sample from anyone arrested for a felony, and there’s a case pending before the Ohio Supreme Court on whether the state can retain the sample if the defendant is subsequently acquitted.  But while the issues are interesting, they’re not unresolved; the Massachusetts case was reversed, and virtually every court which has considered the issue has upheld DNA collection, holding that an arrested person has no more basis to object to that than he does to having his fingerprints taken.  So Assignment I goes down the tubes.

Assignment II quickly follows it.  Bolton argues that the court should’ve dismissed the case for undue delay in prosecuting it.  This isn’t a speedy trial argument — the right to speedy trial doesn’t click in until you’ve actually been charged with a crime — but the Supreme Court has held that an undue delay in bringing an indictment can be a due process violation.  The test for that is both simple and daunting:  the defendant has to first prove actual prejudice resulting from the delay, at which point it becomes the state’s burden to justify the delay.  But the first step is extremely difficult, because it requires actual, not speculative, prejudice:  claiming that it’s harder to find helpful defense witnesses now than it would’ve been back then doesn’t make the cut.  Neither does Bolton’s argument, which was that “he could have already served a substantial portion of his sentence had he been indicted and convicted earlier.”

The “throw the mud against the wall and see what sticks” approach is evident in several other assignments, such as the claim that the trial court erred in failing to instruct the jury to make a determination whether the victim was left in a safe place unharmed, which would’ve reduced the kidnapping count to a 2nd degree felony.  The court spends a largely unnecessary two pages discussing the law on this before correctly concluding, “it is difficult indeed to imagine that one may engage in sexual activity with another against their will and still argue that such a person is left ‘unharmed.’”  Another assignment relating to jury instructions, that the trial court should have charged on the lesser offenses of sexual battery and abduction, have more meat on it but was rejected as well:  the difference between rape and sexual battery is that the former requires proof of force while the latter requires only proof of coercion.  While that might seem to be hair-splitting, here Bolton committed the crime at gunpoint, and that’s about as clear evidence of force as you’re likely to get.  Abduction is a bit of a closer call, but that one goes against Bolton, too.

As does just about everything else.  The claim that the prosecutor’s statement in closing that “DNA evidence has exonerated people” was unfair goes nowhere:  it was prompted by the defense lawyer’s attack on the DNA evidence and his contention in closing that there was only a 60% probability that Bolton had committed the crime, when the testimony of the State’s expert was that the odds of someone else being the perpetrator was 1 in 1.481 trillion.  The fact that Bolton was acquitted of the firearm specifications but convicted of weapons disability doesn’t create an inconsistency in the verdicts; in fact, the court acknowledges that the law permits such a conviction to be upheld “irrespective of its rational incompatibility with the acquittal.”  Bolton claims that the sole evidence linking him to the crime, the DNA comparison, is insufficient, but the panel concludes that 1 in 1.481 trillion sounds pretty sufficient to them.

Bolton doesn’t get shut out:  the court agrees that the kidnapping and gross sexual imposition charges should have merged, that he should’ve been classified as a Megan’s Law offender rather than an Adam Walsh offender, and that the case has to be sent back for proper imposition of court costs, because the judge imposed costs in the entry but didn’t say anything at the time of sentencing.

But let’s go back to that sufficiency argument.  Basically, the court held that nothing more than a DNA test that shows a high probability that the defendant was the perpetrator — 1.481 trillion is over 200 times the world’s population — is sufficient proof of guilt.  DNA wasn’t merely critical to the case; it was dispositive.  And that’s what the third assignment of error focused on:  the trial court denied the defense’s motion for funds for an expert witness on DNA.

The key case on this is Ake v. Oklahoma, a 1985 decision holding that due process may require the provision of expert assistance to an indigent defendant.  But there’s a big catch that’s developed in the case law:  the defendant has the burden of “establishing the reasonableness of the request,” which means that a defendant “at a minimum, must present the trial court with sufficient facts upon which the court can base a decision.”  Here, Bolton made only the assertion that an independent review and intepretation of the DNA results “may be useful in his defense,” and that “undeveloped assertion” didn’t make the grade.

“Reasonableness of the request” is one of those “eye of the beholder” things, and given that the standard for appellate review here is abuse of discretion, it’s not surprising to find very few cases reversing a trial judge for not granting funds for experts.  One of the few is State v. Bradley (discussed here), where the 8th reversed a trial judge for his refusal to allocate funds for an expert on eyewitness identification.  Bradley relied heavily on a 1st District decision to the same effect, State v. Sargent.  But other than those two, the landscape’s pretty barren.

Could Bolton’s trial lawyer have been more definitive in his request?  Possibly; rather than simply saying that an expert “may be useful,” maybe something along the lines of, “Hey, the State’s entire case is DNA evidence, and it’s only fair I get an independent DNA test to contest that.”  That gets you an expert, too, somebody you can talk to about any possible lines of attack on the State’s case.

Would that have worked here?  That’s second-guessing, and it may be a hard sell in light of the case law.  But if you’ve got a case where you need to make that argument, you’re better off if you build a strong record of it in the lower court.  And when it gets up on appeal, you might want the appellate panel to get to that argument somewhere before page 19.

As I explained in the earlier post, there’s not much to the argument.  The best indication that Herring wasn’t intended to introduce a new rule is that just a few months later, in Arizona v. Gant, the Supreme Court threw out a car search incident to an arrest — and reversed a 28-year-old precedent in the process — without mentioning anything about a new test for warrantless searches.  But the State plodded on, and the Supreme Court accepted the case to review that precise question.

And didn’t. 

The details of Gould’s case didn’t paint him as a sympathetic figure.  In 2005, Gould moved in with his mother, and gave her a computer hard drive and told her not to let anyone else have it.  He moved into an apartment five months later, but left the hard drive with the mother.  A month later, Gould’s twin brother told her she should get the drive out of the house because it contained child pornography, and she gave it back to Gould.  Gould’s other brother moved in with him a few months after that, and shortly thereafter, Gould stole the brother’s truck and left the city without taking any of his belongings, including the drive.  His mother retrieved it, then took it to the police.  And there it sat for three months, until Gould’s mother consented to a search of the drive.  Sure enough, it contained child pornography, including pictures of Gould engaging in sex with the 7-year daughter of a former girlfriend.  There were indications that the 7-year-0ld was intoxicated at the time the pictures were taken.

Gould argued that the police had illegally searched the hard drive, but the trial court found that Gould had abandoned the drive, thus forfeiting any 4th Amendment claim.  The 6th District reversed, and the State took it up, arguing four propositions of law.  First and foremost was the Herring argument.  Second was an argument that Ohio’s equivalent of the 4th Amendment didn’t have an exclusionary rule.  The reasoning process which led to the inclusion of this argument is simply unfathomable.  It was based on a 1936 decision, and the last time the State argued it, two years ago (oral argument discussed here), the justices just about laughed them out of the courtroom.  And at least in that case there was a tenable argument that the Ohio Constitution, rather than its Federal counterpart, was in issue; here, there wasn’t.  The last two arguments related to the standards for determining what deference a trial court’s findings on 4th Amendment issues should receive from an appellate court.  The Supreme Court granted jurisdiction only over the first, the Herring issue.

I’ve mentioned before that the Supreme Court regards its role as enunciating broad rules of law; one of the most frequent questions asked by the justices in oral argument is, “What rule of law do you want us to write here?”  As a corollary, the court is not in the business of “error correction”:  taking a case simply because an intermediate appellate court might have made a mistake is not something the Supreme Court does.

Except, like all high courts which exercised discretionary jurisdiction, when it wants to, and it did here.  After summarizing the dueling arguments regarding the application of Herring, the court decides all that’s just so much chin music:  the case can be resolved by reviewing the basic question, which, in the court’s view, is whether the hard drive had been abandoned.  The “rule of law” that Gould accordingly enunciates is two-fold:  a warrantless search of abandoned property does not violate the 4th Amendment, and to establish a legitimate expection of privacy, a person “must exhibit a subjective expectation of privacy that, viewed objectively, is reasonable under the circumstances.”  Well, whoop whoop.  These “rules of law” were established back during the Carter administration.

The remaining question, then, is whether the court properly applied those rules of law to Gould’s case, and more importantly, whether that application is something that defense lawyers and prosecutors need to know about.  The answers to those questions are “maybe” and “probably not.”  The court primarily relies on four cases, one its own and the other three from Federal appellate courts, to conclude that Gould abandoned the property.  The Ohio case has virtually nothing to do with Gould’s situation; there, the defendant dropped his luggage while being chased by the police, and the court correctly construed that as abandonment of the property.  The other three cases cited in Gould bear some factual resemblance to those in Gould’s case, but a determined effort to distinguish them could have been just as successful.  The court makes much of the fact that in the year following his theft of his brother’s truck and his leaving the city, Gould “never inquired about the hard drive or attempted to assert control over it or its location, he concealed his whereabouts, and he never knew the hard drive had been removed from his apartment when his brother sold his other belongings.”  The fact that he didn’t know the hard drive had been removed from the apartment hardly bears on his abandonment of the drive.  The better argument might be that, by abandoning the apartment — and stealing your roommate’s truck, leaving the city, and concealing your whereabouts could certainly be construed as that — Gould abandoned its contents, including the hard drive.

So what you wind up with in Gould is a relatively fact-specific case that provides virtually no guidance on 4th Amendment issues that hasn’t been provided in the past 30 years.  But what about the Herring argument?  The court didn’t resolve it, as mentioned; could it rear its ugly head at some future time?

Maybe, but I wouldn’t count on it.  The State’s Memorandum in Support of Jurisdiction contained an entreaty that the “the people of Ohio have a ‘paramount interest’ in knowing how their courts will interpret and apply pronouncements by the U.S. Supreme Court regarding the exclusionary rule,” citing State v. Oliver for that proposition.  I remember Oliver quite well; in fact, I wrote about it when it came down five years ago.  Oliver involved a question about the application of the exclusionary rule in “knock and announce” cases, and between briefing and oral argument, the U.S. Supreme Court came down with its decision in Hudson v. Michigan, holding that the exclusionary rule would no longer be applied in such cases.  Noting that “Hudson presents a significant and arguably new interpretation of the exclusionary rule,” the court agreed with Hudson.  Well, not it didn’t; instead, after proclaiming that the people of Ohio were literally on the edge of their seats to see how Hudson would be applied, the court remanded it back to the trial court to “reconsider its ruling in light of Hudson.”   And here we are five years later, and the people of Ohio are as lacking in knowledge about how Hudson will be applied here as they were then.  Don’t expect their “paramount interest” in knowing how Herring will be applied to be sated anytime soon, either.

The picture was preferable to the 8th’s decision in State v. Hall, an appeal I handled.  Hall was convicted of being one of several people in two cars who did a driveby shooting at a house.  At trial, the defense counsel used the police report to refresh the detective’s recollection as to the time police were called; because of that, the trial court allowed the State to introduce the entire police report, which then went back with the jury during deliberations.  As the panel recognized, this is wrong on so many levels:  even if a statement or report is used on cross, that doesn’t make it substantive evidence which can be introduced.  Further, EvidR 803(8) specifically bars the introduction of police reports unless they’re offered by the defense.  The opinion recounts in detail the prejudice this engendered, with the jury learning of statements that witnesses never testified to at trial, and charges that were never filed.  Even worse, there’s a Crawford problem, because the observations of the police officers were contained in the report, as well as statements from people who never appeared at trial; neither, for that matter, did the police officers.

That takes care of that, right?  Wrong.  After spending six pages detailing the prejudicial consequences of this error, the majoirty brusquely dismisses it in two paragraphs as harmless.  Why?  Although no physical evidence linked Hall to the crime, the person sitting on the porch made an identification of him, another claimed to have recognized his laugh as he drove away, and Hall’s girlfriend, whose family lived in the house, testified that he called her afterwards and confessed.  This, the court finds, is “overwhelming” evidence of Hall’s guilt.

Although the opinion does an excellent job analyzing the legal issues, its handling of the factual record is less than stellar.  It fails to mention, for example, that when asked by the 911 operator which car Hall was in, the witness replied, “It happened so fast, we couldn’t tell.”  Assuming one can make a “laugh ID,” the witness claiming to have done that never mentioned anything to the police about it.  The girlfriend’s claim of the confession was buttressed by the fact that phone records showed he called her after the incident, but what the opinion fails to mention is that she claimed that he left a voice mail message, which was never introduced; moreover, those same phone records showed that she called him 67 times over next three days, and wrote him numerous love letters in jail, conduct hardly consistent with believing he’d shot up her family’s house.  Even if the evidence had been overwhelming, as the dissent ably notes, a Crawford error, like any other constitutional error, must be shown to be harmless beyond a reasonable doubt — that is, there must be no reasonable possibility that it contributed to the defendant’s conviction.  The 8th has been much better in recent years in avoiding the tendency to arrive at a desired result by making a perfunctory determination that even the most egregious error is harmless, but Hall unfortunately bucks that trend.

A month ago my friend John Martin of the Public Defender’s office had an oral argument right before mine.  My case involved an argument that the defendant’s sentence was too long, but his was equally Quixotic:  he contended that a trial court was required to conduct a colloquy with a defendant to ensure that his jury waiver was valid.  When a defendant wants to waive counsel and represent himself, for example, the court must engage in an extensive discussion with him, informing him of the perils of self-representation and making sure that he understands the charges, possible defenses, and the consequences of what he’s doing.  Not so with a jury waiver:  while it needs to be in writing, signed by the defendant, and done in open court, the latter means that the judge is required to do no more than hold up the document and say, “Is this your signature?”  Martin made an eloquent plea that the Boykin requirement of a knowing, intelligent, and voluntary waiver reuires more, but the statute and piles of case law say it doesn’t, and in State v. Simmons, the 8th adds to that pile.

Finally, some interesting work in another non-citizen plea case.  Two years ago in Padilla v. Kentucky, the Supreme Court held that an attorney rendered ineffective assistance by advising his client that there would be no immigration consequences to his guilty plea.  Wrong call:  the crime Padilla pled guilty to involved mandatory deportation.  Padilla (discussed here) actually went further, holding that counsel was required to do more than simply refrain from giving the wrong advice:  he had a duty to warn his client of the possibility that there might be immigration consequences.  In State v. Lababidi, the defendant raises that claim, but the court correctly notes the dissimilarity between that case and this one:  in Ohio, unlike Kentucky, the trial court is required under RC 2943.031 to warn a non-citizen of the possible immigration consequences, and that means the defendant didn’t suffer any prejudice from the attorney’s failure to do so.

But, as the concurring (only in judgment) opinion perceptively notes, that’s not necessarily the case.  While the warnings would solve the problem of the attorney’s complete failure to inform the defendant of immigration consequences, it doesn’t solve the problem of attorney misadvice.  What if the judge is telling the defendant that he may be deported, excluded from admission, or denied naturalization (which is all that the statute requires), while the attorney is wrongly advising him that none of those things will happen?

Speaking of ineffective assistance, you remember the statute about bounty hunters that I cited above?  (You know you want to go back to look at the picture.)  That marks exactly the second time since its enactment in 1953 that the statute has been cited in a court opinion.  The first was back in 2001, in State v. Kole, where Kole had been indicted for burglary for entering the residence of  a third party to arrest a fugitive.  The Supreme Court reversed, finding that the attorney was ineffective for failing to raise the statute as a defense, although not going so far as to find that the statute would be a defense.  This was too much for Justice Cook, who dissented, and also argued that an attorney’s failure to raise a statute that no court had even mentioned in 48 years could hardly be regarded as deficient performance.

Of which there were few.  The big one, of course, was US v. Jones, the GPS case, which I discussed last week.  One correction.  I said that the majority had held that a warrant was required to place a GPS device on a vehicle.  This isn’t correct:  the majority had held that placement was a search, but didn’t address the question of whether the search was reasonable, finding that the government had forfeited the issue by not raising it below.  As I mentioned, this distinction might not be significant; although there is an argument that a search, whether with a warrant or without, need only be reasonable to satisfy the 4th Amendment, in fact the case law pretty much holds that a warrantless search must fall within one of the exceptions to the warrant requirement to be valid, and I don’t see one here.  Still, Jones is one of the more confusing decisions to come out of the court, and I apologize for contributing to that confusion.

But no more decisions for the next few weeks.  SCOTUS is on its “winter recess” — which follows the “holiday recess” and the “fall recess,” as well as the “it’s time to take a couple weeks off recess” — and won’t be reconvening until a conference on February 17, with oral arguments to resume the following week.  The Court now decides about 75 cases a year, half of what it handled just twenty years ago.

The Columbus Seven was no in recess, seasonal or otherwise, handing down several decisions, though none of a criminal nature (referring there to the subject matter of the case, not the reasoning process employed in the opinion).  The most significant was In re Adoption of M.B.  In that case, the biological father, ordered to pay $1,000 a month in child support, instead provided a $125 gift card for Christmas and $60 in cash on the child’s birthday.  The court holds that these de minimis gifts do not constitute maintenance and support, and thus the father’s consent to adoption was not required.  The opinion makes it clear that only mandated child support payments will be considered as “maintenance and support,” but seems to suggest, somewhat disturbingly, that a trial court would have discretion to determine that the need for consent could be negated by “a parent’s missing one or two payments of support in the year preceding the filing of an adoption petition.”

That winter recess thing, though, seems to be affecting the courts of appeals; fewer than one hundred decisions there.  Let’s take a look…

Back when failure to properly impose post-release controls resulted in a void sentence, there was case law to the effect that a motion to withdraw a plea had to be judged under the more liberal pre-sentence standard.  The Supreme Court’s decision in State v. Fischer, holding that only the part of the sentence regarding PRC was void, puts the kabosh to that argument, as the 6th District notes in State v. Beachum:  a defendant seeking to withdraw a plea now must show a “manifest injustice”… Good decision from the 8th District in Brooklyn v. Perna on the parental discipline defense in a domestic violence case; the court vacated the defendant’s conviction, holding that his act of grabbing his teen-age daughter by the arm and throwing her on the couch, resulting in “soft-tissue” injuries that required her to wear an Ace bandage off-and-on for a couple of weeks, wasn’t sufficient harm to allow conviction… Although the Supreme Court’s decision in State v. Gould, which I’ll discuss on Wednesday, skirted the issue of whether Herring v. US had created a “good-faith” exception for warrantless searches, the State’s still pushing that issue in the lower courts.  In State v. Forrest, the 10th District flatly rejects it, holding that the good-faith exception “exists only in the context of searches and arrests where police believe they
have a valid warrant.”

Even though the judge said he’d refer a defendant for a competency evaluation, his failure to do so isn’t error when the record doesn’t indicate any evidence that the defendant is incompetent, says the 8th District in State v. Smith…  In State v. Aaron, the State had indicted Aaron, a Megan’s Law offender, for failing to provide notice of change of address.  The indictment originally alleged a violation of the Adam Walsh Act, but the State tried to amend it under CrimR 7(D) to charge a violation under Megan’s Law.  The 9th District reverses the trial court’s denial of leave to amend, but left unmentioned and unaddressed is the question of whether that would change the nature of the offense, which the rule doesn’t allow an amendment to do… If you grant a defendant judicial release and he violates, you can’t give him a greater sentence than you originally did, says the 1st District in State v. Taylor… A trial court can deny a defendant his right to self-representation if the request is untimely, and while that’s a judgment call, “the second day of trial” makes the cut, the 8th District holds in State v. Buford…  In order to invoke the affirmative defense of defense of others, the defendant stands in the place of the third party.  As the 11th District explains in State v. Kovacic, that means the defendant must show that the third party (1) was not responsible for creating the affray, (2) was in reasonable fear of death or great bodily harm, and (3) did not violate a duty to retreat…

Word.  The 10th District’s decision in State v. Forrest, discussed above, is also notable for laudable observation:

The State’s argument at times seems to imply that persons who live in a minority neighborhood have fewer rights under the Fourth Amendment to the United States Constitution than persons who live elsewhere if a police officer calls the neighborhood a “high crime neighborhood” or asserts that other persons have been arrested in the area.  The Fourth Amendment applies throughout the nation.

Interesting ideas.  Rick Perry rode into the sunset of the Republican presidential nomination process last week, having contributed little but mirth.  The highlight/lowlight of the campaign was probably Perry’s ad showing him striding through a meadow, proclaiming the sad state of a country in which “gays are allowed to serve in the military, but our children aren’t allowed to pray in school.  Gay rights activists had their revenge when they pointed out that, in the ad, Perry was wearing the same jacket that the Heath Ledger character had worn in Brokeback Mountain, a jacket that the movie’s costume designer said was chosen to “help convey the represssed homosexuality of the character.”  But Perry did make one other proposal that’s been kicking around for a while:  that the Constitution be amended to provide for 18-year terms, staggered every two years, for Supreme Court justices.  Hendrik Hertzberg’s article in the New Yorker explains why this might actually be a good idea.

I’ve harped about the penurious compensation for counsel appointed to represent indigent defendants here in Cuyahoga County, but we’re living in the lap of luxury compared to our counterparts in Alabama.  That state imposes few qualifications on training or experience of lawyers appointed to represent defendants facing the death penalty, and caps their fees at $1,000.  After conviction, a capital defendant is not entitled to any state-funded representation, unlike the situation in most other states.  Lawyers from various mega-firms, intent on burnishing their pro bono credentials, have stepped into the gap, and Cory Maples was the beneficiary of that:  two junior lawyers from the firm of Sullivan & Cromwell filed a petition for post-conviction relief, arguing that Maples’ trial lawyers were ineffective.

That claim was rejected, and the clerk sent the notice of the ruling off the S&C attorneys, and a copy to local counsel as well.  The latter did nothing, assuming that the big-city lawyers were taking care of it.  They weren’t; the lawyers had left the firm, without letting Maples know, or having the firm designate replacements.  The envelope to those lawyers was returned to the clerk, unopened.  He did nothing, either.  When the law firm finally caught up with the error, it tried to appeal the decision, but the time had run, and the Alabama courts refused to consider it.  The lawyers tried to take it into habeas, but the district and circuit court denied it, holding that Maples had defaulted on his state appeal without cause, precluding Federal review.

That somebody could wind up being executed over something like this is something Franz Kafka couldn’t have dreamed of, and seven of the nine justices on the US Supreme Court agreed last week in Maples v. Thomas.  Alito grudgingly:  he concurs on the basis that this was a “perfect storm” of misfortune for Maples, rather than emblematic of a system that compensates attorneys for the hundreds of hours of work that a capital case requires less than a garage charges to repair the average fender-bender.  Scalia and Thomas not at all:  to them, the “primacy” of the Alabama courts, and their right to make whatever damned rules they want, is more important than Maples’ chance of avoiding the gurney.

Down in Columbus, an important criminal decision in State v. Gould, although not nearly as important as it could have been.  Gould was a 4th Amendment case, and as I explained in my review of the oral argument, the big issue was the State’s contention that the Supreme Court’s decision in Herring v. US had ushered in a new era in search and seizure law:  a good faith exception applied to warrantless searches.  (The Court had created the good faith exception for searches conducted with a warrant in a 1984 case.)  As I also explained, this was pretty much bullshit, but the court skipped over the whole thing, deciding the case solely on the basis of existing law a defendant’s right to privacy in property he’s abandoned.  We’ll take a closer look at that next week.

Meantime, let’s take a look at what happened in the courts of appeals last week.

When can a prosecutor mention plea bargaining during trial?  Pretty much never, the 6th District concludes in State v. Hunter.  Hunter was charged with conveying drugs into a detention facility, and during closing argument his lawyer mentioned that Hunter wasn’t charged with possession.  That prompted the prosecutor to object and state that those charges “were discussions in plea negotiations suggested by the defense.”  That prompted the judge to declare a mistrial, and the 6th, after reviewing the pertinent law, affirms… In State v. Rucker, the 1st District holds that evidence of a child being beaten with a belt could be used to prove force or threat of force for a rape conviction, even though the beatings had taken place at times other than the sexual assaults, because they were relevant to demonstrating that the victim’s will had been overcome by fear or duress.  The court also holds that where the offenses were committed over a period of time, some before and some after the effective date of the Adam Walsh Act, classification under the AWA was permissible… In State v. Choice, the defendant was charged with disorderly conduct, and waived speedy trial.  Four months later, the prosecution added charges of aggravated menacing, stemming from the same incident.  The 2nd District holds that the waiver didn’t apply to the new charges, and that Choice’s counsel was ineffective for not raising the speedy trial issue…

Being questioned about an accident while sitting in a police car and filling out an accident form isn’t a “custodial interrogation” under Miranda, the 9th District holds in State v. Strehl.  To show how fact-specific these inquiries can be, the court emphasized that at the time of the questioning, the door to the cruiser was open, and the defendant had his feet on the ground… The Supreme Court’s decision in State v. Smith (discussed here), holding that a person has a right to privacy in the contents of his cellphone, and that police need a warrant before accessing its contents, does not apply to information from the telephone service provider as to when and what calls were made, says the 2nd District in State v. Neely…

My alibi witnesses, Johnny Walker and Jim Beam.  Most defense lawyers know that alibi defenses, unless backed up by hard documentation like pay stubs or hotel records, are pretty much worthless.  That’s especially true if the alibi witnesses are the defendant’s friends.  And that’s really true if the alibi is that the defendant was at a party with his friends and was passed out drunk, because, as the 3rd District recounts the testimony in State v. Shane, the friends shared “maybe eight forties, two cases of Milwaukee’s best, fifth of gin, fifth of vodka…”

In Jones, the police had surreptitiously placed a GPS device on his vehicle and used it to track his movements over the next month.  The 2,000 page log showing those movements was used to convict him and give him a life term for drug trafficking.  There were actually two aspects of the police conduct which raised issues:  the initial planting of the GPS device, and the use of it to track his movements.

The first one was problematic for the defendant.  The current view of what constitutes a search or seizure under the 4th Amendment was articulated in 1968 in Katz v. United States, a wiretapping case.  The Court had considered that issue 40 years earlier, and had concluded then that no 4th Amendment violation occurred because the wiretaps were attached to public phone lines, and the defendant had no property interest in those lines.  A similar argument could have been made in Katz, where the police had attached a listening device to a public phone booth.  Katz found that property interests weren’t controlling, though:  the 4th Amendment was intended to protect privacy, not property.  Since then, the determination of whether an action constitutes a search or seizure under the 4th depends on whether it intrudes upon a defendant’s “reasonable expectation of privacy.”  And there are loads of cases holding that a person doesn’t have a reasonable expectation of privacy in the outside of his car.  When Jones parked his van in a public lot, he knew that anyone could walk up to it.  Even the police.

Scalia, writing for five of the justices, finds that a warrant was required, but his motives are suspect.  He gets around the privacy analysis by discarding it.  He is the master originalist:  his opinions in Blakely, Heller, and Crawford are filled with references to the cases of Walter Raleigh and George Dingler and people you’ve never heard of, while sorting through every historical just short of what James Madison had for breakfast the morning he wrote the rough draft of the Bill of Rights.  To him, and a bare majority of the court, it is a simple matter:  “The Government physically occupied private property for the purpose of obtaining information,” and ”such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”

Such an intrustion would have been considered a ”trespass” under common law.  Trespass, though, is a matter of property law, and here Scalia’s purpose is clear:  he wants to unmoor Fourth Amendment law from Katz  and return it to a property-interest analysis.  Not that he calls for overruling Katz:  he simply sees it as adding to, rather than replacing, the property-interest analysis.

This is too much for Alito, who, along with Breyer, Kagan, and Ginsburg, concur only in judgment.  For a conservative, Alito certainly doesn’t do anything to burnish his own originalist credentials, noting that there are no 18-century analogues to what occurred here.  After a debate on the fine points of trespass law, Alito argues that it the majority opinion overlooks the main problem:  the use of the device to monitor Jones’ movements over a month’s period of time.  To Alito, that certainly constituted a search, and a warrant was required.

Well, you say tomahto, I say tomayto, the bottom line is that everybody agrees a warrant is required to attach a GPS device, right?  Ummm… no.  The government had also claimed that even if the attachment was a search, they had probable cause to believe that Jones was the leader of a large drug ring, and thus the search was reasonable.  The majority doesn’t address this issue because they deem it forfeited, since it wasn’t raised in the court below.  Alito wholly ignores the placement of the device and concentrates on its use, but implies that short term use, or even longer-term use for certain crimes, might not be a 4th Amendment violation.  The former, while injecting uncertainy — how long is “short-term”? — at least has some logical integrity:  one might argue that a person could have a reasonable expectation that the police personlly might follow him around for a few days, but wouldn’t have the resources to do that for an entire month.  The latter argument is simply untenable:  there is no legal or logical basis for concluding that one’s reasonable expectation of privacy hinges upon the nature of the crime which one is being investigated for.

Perhaps the most interesting opinion is Sotomayor’s.  Although she concurs in Scalia’s opinion, she also agrees with Alito that privacy expectations are critical here, and she, more than either of the other two, seems fully aware of the implications of modern technology for privacy interests.  What if the government requires automakers to install GPS devices in all vehicles?  Presumably for safety, but it’s not hard to see how the executive, with no oversight, could abuse that power.  In fact, Sotomayor suggests it may be necessary to rethink the whole “reasonable expectation of privacy” concept in light of technological advances.  We voluntarily disclose a vast amount of information to third parties; my Internet provider has information on every website I’ve visited.  I expect them to keep that information, but that doesn’t mean I should have a reasonable expectation that they’ll turn it over to the government.

So what’s the upshot?  Some commentators have suggested that the police will still use GPS devices, at least for short periods to get around the concurrence’s objections, and to argue that the police have probable cause to place the device — the argument they forfeited in Jones – to get around Scalia’s.  The latter argument poses its own problems, though.  Even assuming the police had probable cause to believe that Jones was a drug kingpin, what exception to the warrant requirement would cover placing a GPS device on the car?  One might think the automobile exception would apply, but that exception is based on the mobility of the vehicle, and the resultant lack of time for the police to obtain the warrant.  In the absence of any evidence showing that the car would imminently be moved to an undisclosed location, it’s difficult to see how the police wouldn’t have the time to obtain a warrant.

So Jones is not nearly as defining as the 9-0 vote would indicate.  The details could be worked out in subsequent cases, but there’s another outcome here that Alito suggests.  He points out that in the wake of the Katz decision, Congress passed a detailed wiretapping law, and in fact statutory law, not case law, has governed that subject since.  The same approach might be used to handle GPS monitoring and other similar technological encroachments on privacy.

In fact, that would probably be a superior to having the courts address it on a case-by-case basis.  Perhaps the best way of deciding what our reasonable expectation of privacy should be is to have the people democratically decide, through their legislature, just what reasonable expectation of privacy they want.

Study after study demonstrates that eyewitness recollections are highly susceptible to distortion by postevent information or social cues; that jurors routinely overestimate the accuracy of eyewitness identifications; that jurors place the greatest weight on eyewitness confidence in assessing identifications even though confidence is a poor gauge of accuracy; and that suggestiveness can stem from sources beyond police-orchestrated procedures.

It arguably did in Perry’s case.  He was stopped for suspicion of burglary, and while he was standing in a parking lot, a black man among several police officers, one of the witnesses to the robbery looked out the window and identified him as the burglar.  There was much to discredit that identification — she failed to pick Perry out of a photo array a month later –  but she was allowed to testify about the pretrial identification at trial, and Perry was convicted.  He appealed, claiming that due process required a trial court to reject an unreliable identification, even if there was no police impropriety in how the identification process had been arranged.

Sotomayor bought into it, and if she’d been writing the majority opinion, we’d have a good bit more to talk about here.  But she wasn’t; in fact, she was the lone dissenter.

The problems with Perry’s position became clear in the oral argument last November.  Perry’s argument focused on the special significance that the Court had given eyewitness testimony in Wade, Stovall, and the early cases.  If mistaken eyewitness identifications were such a problem, as those decisions indicated and as decades of subsequent research demonstrated, then merely foreclosing police involvement in producing those identifications wasn’t sufficient:  due process demanded that faulty identifications be suppressed, regardless of how or why they were produced.  He got resistance to that argument from the usual quarters, Scalia especially, but even from Kennedy and Breyer.  And Kagan sealed the deal by posing the question of what would happen if some other category of testimony was shown to be even more unreliable than eyewitness testimony:  would that also be excluded by a due process argument?

That was the whole problem with Perry’s argument.  The Bill of Rights is a procedural guarantee, not a substantive one.  A defendant has a right to a jury trial.  As Troy Davis and numerous others have learned, that is not a guarantee that the jury will come to the right result; in fact, after a guilty verdict, the focus on appeal is not whether the jury got it right, but whether the defendant’s trial was fair.  As Scalia wrote in Crawford, the 6th Amendment right of confrontation is not a substantive guarantee that evidence will be reliable; it is a procedural guarantee that the reliability of evidence will be determined in a certain manner, through cross-examination.  Perry’s argument dispensed with all that:  the focus would no longer be on the procedural aspect of how the identification was procured, but on the substantive aspect of how reliable it really was.

What’s more, we get into the “floodgates of litigation” argument:  if we try to make a judicial determination of whether an eyewitness identification is sufficiently reliable to be admissible, what about accomplice testimony?  That of jailhouse informants?  To be sure, there may be special instructions, especially for the former, cautioning the jury to be very circumspect about accepting such testimony, but we don’t put the trial judge in the position of saying, “That guy is lying, I’m not going to allow him to testify.”  Those are the decisions we entrust to jurors.

One might argue that the high rate of mistaken identifications as a cause of wrongful conviction shows that approach isn’t working.  That may be, but it also may be that the times, they are a’changin’.  The number of DNA exonerations has resulted in people becoming more wary of imposing a death penalty, but when the story of an exoneration also mentions that the defendant was convicted based on eyewitness testimony, it results in people becoming more wary of those identifications.  I’ve had juror in voir dire mention without prompting that eyewitnesses get it wrong, and a few questions — “Have you ever gone up to someone that you thought you knew and realized that you were mistaken?”  “Have you ever met somebody and then a week later not recognized them when you saw them again?” — can get the point across.  Judges are more willing to allow expert testimony on various subjects, like “gun focus” (the tendence of a witness to focus on a gun, rather than the gun holder’s features) or cross-racial identifications, and even allow for state funding of it.  People are more accepting of the fact that seeing isn’t necessarily believing.

And after all, that’s what we have juries for.

As I’ve mentioned, working as assigned counsel is not a road to riches, and it’s even worse in municipal court, where fees are usually capped at a few hundred bucks.  For the lawyer in Parma v. Battaia, undoubtedly a greater challenge than the miserly rate of compensation was resisting the urge to strangle his client with his bare hands when he found that (a) the client had been secretly tape-recording all their conversations, and (b) the client had filed a grievance against him with the bar association.  This came out on the day of trial, and the judge offered Battaia a choice:

Now, being over 18 you’re going to make a decision. The person that you, it seems, intentionally tried to alienate, do you want him to represent you? Or do you want to dismiss him, and represent yourself at this time?

Battaia wasn’t the quickest bunny in the forest — he’d managed to get himself cited for drunk and disorderly twice in the same night, and when they arrested him, he wound up with a criminal damaging charge because he urinated on the cell door and screwed up the electronics — and it’s doubtful that any decision he made under these circumstances would be the right one, but he opted to try it himself, with predictable results.  But it all comes back, because waiver of counsel for trial is a lot different than waiver of counsel for a plea; for the former, the judge has to to engage in a lengthy colloquy with the defendant to ensure that he understands the charges, possible defenses, and the perils of self-representation.

I’ve written before that while the general reversal rate for criminal defendants is about 15%, it goes up to around 50% in search and seizure cases in the 8th, and probably hovers around 70% for appeals from municipal courts.  That’s confirmed by this week’s batch:  Battaia was one of three muni court decisions, and all were reversed.  Mayfield Heights v. Brown involved the identical situation to Battaia, with the identical result.  In Cleveland Heights v. Roland, the court vacates a plea to domestic violence because the judge had failed to advise the defendant, a resident alien, of the immigration consequences of the plea.

As for that 50% rate in search and seizure cases, the prosecution stays on the right side of that figure in State v. Booker, which also demonstrates the importance of selecting the appropriate window treatments for one’s abode.  The Euclid police went to Booker’s apartment to investigate a complaint that he had harassed a security guard there, and as they were walking toward the door, they saw Booker through an open window, sitting on his couch, putting marijuana into small baggies.

That certainly gave the police probable cause to believe that a crime was being committed, but did it give them the right to enter the apartment under the “exigent circumstances” exception to the warrant requirement?  One such exigency allowing entry would be the imminent destruction of evidence, but to rely on that they have to show that Booker was aware that the police were there, so that he would have had a reason to destroy the evidence.  That wasn’t the case; Booker was blithely unaware of their presence, so “the detectives had ample opportunity to secure the premises and obtain a valid warrant without risking retrieval of the evidence.”  Booker doesn’t get off, though, because the court finds he consented to the detectives’ entry:  according to them, they knocked on the door, Booker opened it, and stepped aside when they asked to enter.  Booker’s story is vastly different — the detectives entered without knocking and with guns drawn — but the trial court bought the cops’ version, so that’s what the panel is stuck with.

But let’s go back to that “securing the premises and obtaining a warrant.”  Last year, in Kentucky v. King (discussed here), the Supreme Court confronted a situation where police, chasing a drug dealer, knocked on an apartment door and then, when they heard movements inside the apartment which sounded like people destroying evidence, broke down the door and rushed in.  The Kentucky courts had held that the police couldn’t rely on the exigent circumstances exception because they’d created the exigency by knocking on the door.  The Supreme Court reversed, finding that the police hadn’t created the exigency:  they weren’t doing anything forbidden by the 4th Amendment by simply knocking on the door.

So what if the cops in Booker had just knocked on the door?  At that point, Booker would have been aware of the police presence, and the police could rightfully claim at that point that Booker’s awareness would’ve created a risk of destruction of evidence, and thus their warrantless (and consentless) entry into the apartment would be lawful.

Lastly, there are a number of criminal attorneys who also handle personal injury and other civil cases on the side, so a couple of warning shots across the bow this week.   Sanders v. Gabbardpresents the latest lesson in how forlorn is the task of getting a jury to give a plaintiff money for soft-tissue injuries.  Sanders comes into court with $53,597 in medical expenses and $9,460 in lost wages stemming from a rear-ender, and walks out with an award of $2,894.86 for medical expenses only.  She appeals the trial judge’s denial of her motion for new trial, and there’s some case law which holds that if the jury awards something for medical expenses, it also has to award something for pain and suffering.  But there’s also case law to the contrary, and the 8th adds to the latter body of work, and affirms.

One of things you don’t worry about in criminal law is depositions, but you do in civil work, and scheduling them can be a bear, especially if opposing counsel isn’t cooperative.  A word of caution if you choose to be that uncooperative counsel:  when the other side schedules a deposition, you can’t just call them up the day before and tell them you and your client aren’t going to be there.  That’s what the lawyers did in Borsellino v. Smythe Cramer, and for that their client was hit up for about $3,000 in sanctions.  They protested that the client was a neurosurgeon and very, very busy, but that went nowhere, in light of the fact that the defendant’s attorneys had sent numerous letters over a three-month asking for mutually-agreeable dates, all with no response, and that the final deposition date had been set a month earlier.  Calling up and canceling the day before is not an option; and that point, you need to get a protective order.  The bottom line is that you avoid a whole lot of problems, and an angry client, by just picking up the phone and playing nice.

Hold it, what was that last one?  Yep.  Over the past several years, the American Bar Assocation has been evaluating the death penalty systems in each state.  Their evaluation of Ohio’s was completed in 2007, and resulted in a 495-page report finding fault in a variety of areas.  After chewing on that for four years, the Ohio Supreme Court established a “task force” to review the administration of the state’s death penalty last November.

Judging from the nature of the problem — you don’t come up with a 495-page report if there’s just some fine tuning that’s necessary — and from the two meetings that have been held so far, nobody should get their hopes up that Ohio’s system for killing people is going to become a model for others to emulate.

The task force is charged with the job of evaluating the ABA report and assessing whether Ohio’s death penalty “is administered in the most fair and most fair and judicial manner possible.”  Assuming the panel answers that last question in the negative, an effort which should require no more than four nanoseconds of conscious deliberation, the next issue is what to do about it.  Notably absent from the inquiry is the most obvious one:  the task force is specifically instructed “not to review or report on the issue of whether Ohio should or should not have the death penalty.”

So with hope beaming down on them and the winds of change at their backs, the 22 members of the task force, drawn from the bench, academia, the legislature, and both the prosecutorial and defense sides of the bar, sat down last November to begin their work.  Some of the ABA’s criticisms have been resolved by time; the lack of preservation of biological evidence, for example, was remedied by SB 77 in 2010, and the new open discovery provisions of the criminal rules have substantially addressed several other problems noted by the ABA report.  Discussion ranged over a wide variety of other topics, such as training and funding of defense counsel, costs of imposing the death penalty, data collection, and racial disparity in sentencing.  The result of the meeting, not without irony, was the designation of four subcommittees to look into all that.

But this is one case where the devil isn’t in the details; just about everybody recognizes that the real problem is in the arbitrariness of the application of the ultimate penalty.  As the ABA report noted, prosecutors have the sole and unfettered discretion in deciding whether to seek a death sentence, and as might be expected, standards vary widely:  some prosecutors indict on capital specifications any time a crime meets the criteria, others save it for “the worst of the worst,” and still others use it as a bargaining chip.  One way of resolving that disparity was presented at the task force’s second meeting on Thursday by it chairman, former appellate judge James Brogan, who suggested that the decision of whether to pursue a death sentence should be made by a statewide commission, rather than by county prosecutors, similar to how other states, like Tennessee, handle the issue.

How far this is going is open to question; state Sen. Bill Seitz, who’s on the task force and also spearheaded the efforts to get HB 86 passed, helpfully labeled it “not necessarily a crazy idea.”  And good luck with prosecutors like Joe Deters of Cincinnati’s Hamilton County, which hands out capital indictments like takeout orders from a Chinese restaurant, to relinquish any authority he has over those decisions.  In fact, Deters used the meeting to present a set of proposals, including greater use of victim impact statements and requiring only 10 of the 12 jurors to impose capital punishment, apparently laboring under the misapprehension that the task force’s mission included making it easier to obtain death sentences.

The big problem with resolving the issue of arbitrariness, though, is that a lot of it starts at the top.  Since 1995, all capital cases have to be appealed directly to the Supreme Court.  Part of the court’s charge is to independently reweigh the aggravating and mitigating circumstances, and another is to “consider whether the sentence is excessive or disproportionate to the penalty imposed in similar cases.”  On only four occasions since Ohio’s current capital sentencing law was enacted in 1981, and only once since 1991, has the court found that the mitigating circumstances outweighed the aggravating factors.  The record on disproportionality review is even worse:  not once in its review of over 250 capital cases has the court vacated a death penalty on that basis.

That’s largely because of limitations on review:  the court considers only other cases in which the death penalty was imposed.  In other words, if the defendant kills his girlfriend and their child, and if there’s one other case where a death penalty was imposed when a defendant killed his girlfriend and their child, that’s enough to classify the penalty as “proportionate.”  If fifty people killed their girlfriends and their children without getting indicted for capital murder, and fifty more were indicted but avoided the penalty, that’s not considered.

Remedying that might go at least some way toward resolving the problem of arbitrariness.  I’m not sure I see the commission telling the court which appointed it that the court is part of the problem, not the solution.