What's Up in the 8th
Coming soon to a Supreme Court near you (namely, the one in
Ohio): the 8th District's decision last
week in State
v. Mole. The case has what is
considered "sex appeal " in appellate circles for Supreme Court review (which
says about all you need to know about appellate circles): it declares a statute unconstitutional , and
it's on an issue of first impression.
Plus, it's got actual sex appeal:
it involves the sexual battery statute.
That statute, RC
2907.03, does two things: first, it
criminalizes non-consensual sexual conduct that falls short of rape, and
second, it criminalizes "consensual" sex acts which really aren't
consensual. As originally enacted, the
statute prohibited sex between parents, guardians, or custodians and their
children or charges. In 1994, it was
amended to include teachers, coaches, and scout leaders. Subsequent amendments brought in mental
health professionals, clerics, and employees of detention facilities where the
victim was a detainee. All of those had two
common threads: the victim was a minor,
and the offender possessed some degree of power or authority over the victim.
Mole tackles the
2009 amendment to the statute, which makes it illegal for a peace officer to
have sex with a minor when the peace officer is more than two years older than
the minor. The argument is one of equal
protection. Normally, sexual conduct
with minors, at least 16- and 17-year-old ones, is perfectly legal. The statute makes that conduct illegal for peace
officers. The question then becomes
whether that classification scheme is permissible.
If the classification is "suspect"-- it's based on race,
religion, national origin, a few others -- the statute is presumed
unconstitutional. But police officers
aren't a suspect classification, so the state need only show a rational basis
for the classification. One judge finds
that the definition of "peace officer" is too broad; it would include not only
police officers, but a forest officer and a tax investigator. He and another judge find that the failure of
the statute to show any logical connection between the offender's status and
the victim's position is fatal; while "the legislature has amended the sexual
battery statute to add categories where an offender has authority or control
over the intended victim," the "peace officer provision "stands alone among the
subsections in that it requires no intent on behalf of the offender and no relationship
or occupational connection between the offender and the victim."
Ordinarily, it would be hard to predict how the Supreme
Court would handle this; the 8th District's opinion treats this as a facial,
rather than an "as applied" challenge.
The former requires a showing that the statute would be invalid under
any circumstances, and given that the "victim" in Moles didn't even know that he was a police officer, an argument
that the statute had no basis as applied to Moles might fare better. The problem is that it might be hard to
divorce the facts from the legal issues especially in this context. The dissent notes that the statute was
amended "as a response to a sexual relationship between a minor and a police
officer that caused a loss of respect for the officer and his department among
the local community." Hopefully, the
Supreme Court will recognize that the goal of a criminal statute is to punish
people for victimizing others, not to prevent people from "losing respect" for
police officers.
As has been noted on numerous occasions, before trial the
justice system is interested in the result; after that, it's interested almost
entirely in the procedure used to arrive at that result. The defendants in Richmond
Heights v. McEllen and State
v. Masters learn that lesson to their sorrow. McEllen pled guilty to domestic violence in
2000, and 12 years later sought to vacate his plea because the conviction kept
him from getting a job, and besides he was intoxicated at the time he made the
plea. The first claim falls into the category of "so sad, too
bad," and although the rule on vacating pleas doesn't have a time limit,
"an undue delay between the occurrence of the alleged cause for withdrawal
of a guilty plea and the filing of a motion is a factor adversely affecting the
credibility of the movant and militating against the granting of the
motion." The court figures that
McEllen must have sobered up sometime during the past twelve years, and should
have moved to vacate the plea then.
Masters uses the vehicle of a post-conviction relief
petition to set aside his 2010 conviction, an effort made all the more forlorn
because the 180-day time limit for filing it has long passed. That means Masters must show that the US Supreme
Court has recognized a new federal or state right that applies to him, and
renders his conviction invalid. Masters
tries to hop aboard the Missouri v. Frye train,
claiming that his lawyer didn't tell him of a pretrial plea offer by the State
of a recommended sentence of six years (Masters got eight). The State denies any such offer was made, but
no matter; the court holds, as it did a few months ago in State
v. Hicks, that Frye doesn't
create a new Federal right, it simply clarifies the right to counsel in the
plea-bargaining context.
Comic relief is provided by Cleveland
v. Turner. The police find
Turner's car stopped in middle of road with the ignition off, and Turner
"seated in the driver's seat, making car noises and moving the steering
wheel as if he were driving." The police make cop noises and arrest
him for DUI, basing it on claim that he's high on drugs. But the 8th
District makes appellate noises and finds that the evidence was insufficient to
show that Cheech -- er, Turner -- was baked, because there were no drugs found
on his person or in the vehicle. The lesson here is apparently that if
you're going to smoke a bowl while wending your way through the city streets,
make sure you smoke it all, and toss the bowl when you're done.
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