Wading through the thicket
Catch-22 is one of the most famous books of the last century. It used World War II as a backdrop for a satire on the inanity of how governments and bureaucracies operate, and the reasoning, or lack of it, which goes into that. Everybody remembers the Catch-22 that is the focal point of the book -- the rule that anyone seeking a psych evaluation to determine that he's not sane enough to fly combat missions is trying to escape danger, and thereby demonstrates he's sane -- but there are others. In fact, the main character comes to realize that Catch-22 doesn't actually exist, but because it doesn't, it can't be repealed, either.
I think Paul Palmer would really appreciate the book.
Back in 1995, Palmer pleaded guilty to sexual battery, and did 18 months in prison. Shortly after he got out, Megan's Law, Ohio's first comprehensive sex offender registration and notification law, was enacted, but it didn't apply to him: it applied only to people who committed sex offenses after its effective date of July 1, 1997, or were still serving a prison term for a sex offense committed prior to that date. Then, in 2008, the Adam Walsh Act went into effect, applying retroactively to all sex offenders, regardless of when they committed their crime. As a result, Palmer became a Tier III offender, the most restrictive category under AWA, and now had to register every 90 days for the rest of his life.
There was a process under the AWA whereby offenders could petition the court to declare that their classification was wrong, or that they shouldn't be classified at all. That's what Palmer did. In the meantime, he got indicted for violating the registration requirements the AWA now imposed upon him, and filed a motion to dismiss those indictments under CrimR 12. The trial court granted his petition, finding that he wasn't subject to the AWA, and also granted the motions to dismiss the indictments, holding that since he wasn't under a duty to register, he couldn't be charged with failing to register.
The 10th District reversed. Interestingly, Palmer hadn't raised a constitutional challenge to the AWA, and had only argued that by its terms it didn't apply to him. That was wrong; it clearly did, the court held. Although that would have also meant that the indictments shouldn't have been dismissed because the charges were valid, the appellate court didn't reach that question, instead deciding that dismissal was improper because the indictment wasn't defective on its face. Palmer wasn't contending that the indictment failed to charge an offense, according to the court of appeals, but simply that the state couldn't prove that he'd committed one, and that's an issue for trial.
Last week, in State v. Palmer+, the Supreme Court reversed. Since the 10th District had decided the case, the Supreme Court had handed down State v. Williams (discussed here), which held that the AWA couldn't be applied retrospectively, to defendants who committed sex offenses prior to its enactment. That would seem to get Palmer off the hook, but the State responded with an argument that Heller would have appreciated. In State v. Bodyke (discussed here), the court had declared unconstitutional the portion of the AWA allowing the Attorney General to reclassify Megan's Law offenders. Aha, said the State, the section you declared unconstitutional also contained the provision which allowed someone to file a petition challenging his classification, so even though Palmer shouldn't have been classified under AWA, by eliminating that provision you've also eliminated his ability to contest that classification. The Palmer court responds by saying that Bodyke only declared unenforceable the "unconstitutional component" of the AWA's reclassification provisions, and left in place the remainder, including the petition process. The court spends the better part of two pages on this argument, which provides yet another reason why I'm not a good choice to be an appellate judge, because if I'd written the opinion, I would've responded, "What? You're kidding, right?" and left it at that.
The more interesting aspect of the opinion is the treatment of the dismissal of the indictment. There have been a number of cases which have held that a motion to dismiss the indictment can't be granted unless the indictment is invalid on its face. In a civil case, you can ask for summary judgment, arguing that there's no dispute as to any of the material facts, and you're entitled to judgment as a matter of law. There's no similar provision in the criminal rules.
Typical on this issue is the 5th District's decision in State v. Serban, reversing a trial court's dismissal of an indictment in an OVI case. Although the parties had stipulated to all the facts, and had those facts come out at trial the defendant would have been entitled to a Rule 29 acquittal at the close of the State's case, the appellate court reversed, holding that a Rule 12 motion to dismiss can't reach "the merits or substance of the allegations," and "can only raise matters that are capable of determination without a trial on the general issue."
The Supreme Court backtracked a little bit on that in its 2008 decision in State v. Brady. There, the trial court had dismissed a child pornography indictment, finding that the threatened Federal prosecution of the defense's expert made it impossible for Brady to defend against the charge, thus constituting a due process violation. The case is funky on several levels (I discussed it here), but the upshot was that although the Supreme Court reversed on the merits, it found that the dismissal was procedurally sound because the court was permitted to consider evidence beyond the face of the indictment if the motion to dismiss doesn't go to the "general issue at trial."
You could certainly make an argument that Palmer doesn't fit into a situation where he's entitled to dismissal of the indictment. It's not facially defective: it simply alleges that he violated the law by failing to register. Of course, he wasn't required to register because he wasn't subject to the AWA, but to get to that argument you needed to get into the facts, like when his crime had been committed. And whether he had indeed violated the law was certainly the "general issue" for trial.
The court does some slippin' and slidin' to fit Palmer into a position where he's entitled to dismissal of the indictment. It starts with the conclusion that "an indictment is defective if it alleges violations of R.C. Chapter 2950 by a person who is not subject to that chapter." True that, but doesn't that raise the factual question of whether the person is indeed subject to that chapter, and doesn't that require looking beyond the indictment? And since whether he violated the act is the general issue at trial, aren't you prohibited from looking at the facts? No problem, says the court:
The general issue for trial in this context is whether the accused violated the law as set forth in the indictment. Where the law simply does not apply, the trial court is well within its authority to dismiss the indictment before trial. In reaching that determination, the trial court may look beyond the four corners of the indictment.
The implications of this may be broader than the court intended. Can you make the argument that the law "simply does not apply" when the facts are legally insufficient to convict the defendant? That may be a stretch, but it's not hard to conceive of situations which may fit within Palmer's ambit, and allow a court to dismiss an indictment without trial where that wouldn't have been appropriate before.
That'll play out in the future. For right now, there's no question of Palmer's impact on one point: if the defendant doesn't fall within the AWA, an indictment charging him with a violation of that statute is getting dismissed.
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