Case Update
Israel Leija apparently had a death wish. Apparently intoxicated, he led police officers on a car chase that reached speeds of 100 mph, during which he twice telephoned the police and told them he had a gun and would shoot any officers who tried to stop him. His wish was granted by a Texas state trooper, Chadrin Lee Mullenix. Mullenix was positioned as a sniper on an overpass, and despite being told to stand down by his supervisor as the police were laying down road spikes, Mullenix fired six shots into Leija, killing him, then bragged, "How's that for proactive?"
SCOTUS handed down its first decision of the term last week in Mullenix v. Luna, granting immunity to Mullenix in a lawsuit by Leija's family. The fact that it was by a vote of 8-1, and came without the case being even briefed and argued, suggests that whatever ongoing debate there might be over the use of excessive force by police, the Supreme Court isn't going to be joining it.
In addition to the case on allied offenses, which I discussed on Friday, the Ohio Supreme Court handed down one other decision, in State v. Blankenship. Blankenship had consensual sex with a 15-year-old when he was 21, which got him convicted of unlawful sexual conduct with a minor, a fourth degree felony, and got five years of community control sanctions. Oh, and then there was the little matter of having to register as a sex offender for the next twenty-five years.
Blankenship claimed that the latter requirement constituted cruel and unusual punishment. That essentially requires him to show that registration would shock the conscience. Pfeifer and O'Neill agree that in this particular case it does, but adoption of their view would essentially gut the Adam Walsh Act's classification system; instead of automatically imposing a classification based on the crime committed, a judge would have to weigh each case to decide whether registration should be required.
Several takeaways. First, it's a plurality opinion; O'Donnell and Kennedy concur only in judgment. The court never would have reached Blankenship's issue if not for its decision in State v. Williams (discussed here). Up until then, the court had consistently held that prior sex registration schemes were "remedial" rather than punitive; you never reach the issue of cruel and unusual punishment if it's not punishment. The concurrence takes up 14 pages - almost as long as the plurality opinion's 15 - to argue that the court got it wrong in Williams, and the AWA should be considered remedial. There's substance to that argument; every Federal court, including the Supreme Court, has rejected the claim that the AWA is punitive.
Second, the court addresses not only whether the statute is cruel and unusual under the 8th Amendment, but under the Ohio Constitution as well. This continues the court's newfound willingness to hold that the state constitution "provides protection independent" of the Federal one.
A couple of interesting court of appeals cases...
The 2nd District cements its reputation as the most defendant-friendly court in the state when it comes to sentencing. The judge in State v. Morefield had sentenced Morefield to four years in prison for sexual battery, but the 2nd had bounced it back, finding that the sentence was "unsupported by any consideration of any of the statutory factors on the record." On remand, the judge stated that he had considered the principles and purposes of sentencing, and the seriousness and recidivism factors, and imposed the same sentence. Not good enough, says the majority. Here's the money quote:
Since appellate review of sentences is provided by R.C. 2953.08(G), a trial court is not endowed with unreviewable discretion to sentence within the statutory range. To exercise appellate review, we must be able to review the record to find what underlying facts were considered by the trial court relating to the applicable eight factors set forth in R.C. 2929.11, and the twenty-three factors set forth in R.C. 2929.12.
That's at complete odds with decisions from other districts which hold that a trial court has "unfettered discretion" to impose a sentence within the range specified by the legislature, and that even if a judge utters not a word about the sentencing statutes, the court will "presume" that he considered them. What's more, the Morefield court doesn't remand the case; instead, it decides that two years is good enough, and modifies the sentence on its own. Definitely worth a look if you've got a sentencing appeal, but hurry; I wouldn't be surprised to see the Supreme Court take a look at this one.
Old Chief lives, at least in the 11th District. Old Chief was the 1997 case where the Supreme Court held that the district court erred in not accepting the defendant's stipulation that he had been convicted of a crime which made him ineligible to have a weapon. The defendant in State v. Baird tries to avail himself of that, contending that the trial court should've allowed him to stipulate to the two prior OVI convictions in his trial on a third such charge, instead of letting those convictions go to the jury. The Ohio courts have rather consistently rejected Old Chief, since it concerned an interpretation of the Federal rules of evidence, rather than being based on constitutional principles. The 11th has no such qualms, reversing Baird's conviction. Even the dissent agrees with the underlying analysis, differing only because she finds the error harmless.
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