Case Update
Only another six weeks until the Supreme Court's "long conference," their session the Friday before the term officially starts, where they weed out the petitions that have accumulated over the summer, trying to determine who's naughty or nice. There's a case where a judge is accused of murder, another involving a disputed kidnapping, some with international implications...
Whoops, that's the fall movie previews! I suppose I could tie this all in to the unwanted emergence of the Dumb and Dumber sequel, but let's not go there. Still, the Court has already accepted forty cases for review, including several criminal ones of note. We'll take a look at those later this week or next.
No waiting another six weeks for oral arguments down in Columbus: SCOTUS' Ohio counterpart has seven cases slated for argument this week. The three on Tuesday are criminal cases. One is a death penalty appeal, with simply horrid facts. (As opposed to those death penalty cases with happy facts.) Mark Pickens and Noelle Washington began dating, but in May of 2009, Washington told the police that Pickens had raped her after she'd told him she planned to move to Tennessee to live with her sister. The next night, Washington, her 9-month old son, and a 3-year-old girl Washington was babysitting were murdered.
There's a Batson challenge and allegations about prosecutorial misconduct and discovery violations, but nothing I read in the short summary provided by the clerk's office leads me to believe that the court is going to rescue Pickens from his date with the gurney, or however the State is killing people by the time they get around to executing Pickens a couple decades from now. Assuming that they are still killing people by then, and given the trend - there were 39 executions last year, down from a high of 98 in 1999 -- I wouldn't want to bet a lot of money on that. On the other hand, Ohio's the only non-Southern or border state still executing people, so give me some odds and we'll talk.
The other two cases raise questions about what needs to be shown to prove an "enterprise" under Ohio's RICO statute, and whether aggravated burglary and the crime committed after entry into a home merge. I'll chat those up later in the week. Or maybe wait 'til the movies come out in the fall.
Let's head on over to the courts of appeals and see what's happening there...
What's in a word? In State v. Smith, the defendant pled no contest to a burglary charge, and the judge imposed a mandatory prison sentence based on Smith's two prior juvenile delinquency adjudications for aggravated robbery. At issue is RC 2901.08, which says that a prior delinquency adjudication can be used "for purposes of determining the offense with which the person should be charged and, if the person is convicted of or pleads guilty to an offense, the sentence to be imposed upon the person relative to the conviction or guilty plea."
There are many situations where a prior offense affects what a person can be charged with; a prior conviction of domestic violence, for example, makes a subsequent one a felony. Similarly, a prior offense can affect the sentence: penalties for DWI become stiffer with each prior conviction, and RVO specs may enter the picture.
Smith makes the argument that the use of the word "and" means that the prior conviction has to affect both what offense is charged and what sentence can be imposed. One judge on the 2nd District panel rejects this interpretation, another concurs only in judgment, and one buys into it, based on the rule of lenity. Something to keep in mind if you run across this situation.
Michael Grady was in a bind. He'd been indicted on 40 counts of breaking and entering, and wound up pleading to ten of them. The prosecutor told the court that the parties had reached an agreement where Grady would cooperate with authorities in various jurisdictions in closing other similar cases, and that at sentencing the State would provide a report to the judge to consider. The judge told Grady, "The extent to which you do cooperate and are helpful will have a positive impact on your sentence."
At the sentencing hearing, though, a different prosecutor shows up, sans report, and asked for a nine-year prison sentence. The judge upped the ante, imposing the maximum sentence for each offense and running them consecutively.
In State v. Grady, the 9th District has little trouble concluding that this is a breach of the plea agreement, and remands the case for the trial court "to exercise its discretion in fashioning an appropriate remedy for the State's breach of the plea agreement." That'll be interesting. One remedy would be to allow Grady to withdraw his plea, but given the evidence against him, that's a non-starter. The other would be to compel the State to provide the report about Grady's cooperation, but that leaves a lot of discretion up to the judge. Still, in light of the judge's promise of a "positive impact" the report could have, I don't see a max-and-stack the second time around.
Cases I never got around to reading. Haight v. Thompson, a suit by five death-row inmates in Kentucky under the Religious Land Use and Institutionalized Pesons Act. The district court granted the prison officials summary judgment, but, as the summary tells us,
The Sixth Circuit reversed in part, holding that there was a triable issue of fact over whether RLUIPA gives the inmates a right to have access to a sweat lodge for faith-based ceremonies and a triable issue of fact over whether RLUIPA gives the inmates a right to buffalo meat and other traditional foods for a faith-based once-a-year powwow.
Is this a great country or what?
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