Case Update
My recent hiatus, compelled by my work feeding the poor in India and working on a cure for cancer, has left my forlorn uncounted legions of readers without a Case Update in months. To cure your jonesing, let's take a look at some of the Ohio Supreme Court cases of recent vintage.
Pursuant to RC 2151.421(G), the Cuyahoga County Department of Family and Children's Services has a "memorandum of understanding" with county law enforcement that social workers will go into the jail and interview defendants charged with sexually abusing children, then turn the defendants' statements over to law enforcement. Notably, this interview is conducted without the amenity of advising the defendant of his Miranda rights. When the 8th District found fault with this procedure in State v. Jackson, I agreed, commenting that "I'm having a hard time seeing how that's not a violation of the defendant's Fifth and Sixth Amendment rights."
There were only six Ohio Supreme Court justices who disagreed with me on that point.
The law on this is that the Miranda warnings are only required to be given by law enforcement officers and their agents. To establish that one is an agent, you have to show that he acts at the direction or under the control of the officer. There were no discussions between the cops and the social worker before the latter's interview, and no cops were present during it.
The troubling part of this case, to me, is that this should've been a close call, and wasn't; newly minted justice DeGenaro is the only dissenter. (Kennedy concurs only in judgment.) Does anybody really believe that there has never been any communication between social workers and the cops? That the workers don't get feedback about what the interview should include? The idea that that would be sufficient to show direction and control is a legitimate argument.
This might be a case of once bitten, twice shy. A few years back, the 8th District held by a 2-1 vote that since schoolteachers were "mandatory reporters" of child abuse, they were agents of law enforcement, and anything the child told them was testimonial and barred by Crawford.
This sounded pretty silly, but to everyone's utter astonishment, the Ohio Supreme Court affirmed by a 4-3 vote. It wound up in front of SCOTUS, which unanimously reversed.
I had a personal injury case once where I got a judge reversed on summary judgment. At the last pretrial, the defense attorney mentioned something about a directed verdict. The judge looked at him and said, "I'm not getting reversed twice."
You get administered a 9-zip smackdown on what constitutes an agent of law enforcement, you're going to be real careful about how you decide what constitutes an agent of law enforcement in the future.
The stunning idiocy of Ohio's law on post-release control is on full display in State v. Gordon. The very short version is that under last year's decision in State v. Grimes, a judge has to tell a defendant three things, at sentencing and in the journal entry, to validly impose post-release controls: (1) whether it's three years or five years, (2) whether it's discretionary or mandatory, and (3) that there could be consequences under RC 2967.28 for violating post-release control. Gordon claimed that the judge also had to tell him that he could have the remaining period of his post-control, and at least one year, tacked on as consecutive time for any new crime they commit. The court held the judge didn't.
But here's the rest of the story: Gordon also pled out to several counts of child rape. He is serving a sentence of 55 years to life.
Let me put this as delicately as I can: This is one of the five stupidest fucking things I've ever heard of. In the unlikely event that Gordon makes it another 55 years, and in the even more unlikely event that he gets paroled -- remember all those headlines you saw, "Child Rapist Paroled"? Me neither -- he will be on parole. We've had post-release control for twenty years now, but we've also dramatically increased the number of offenses with life tails. God knows how much time and money was spent litigating this case to the Supreme Court, and it will have absolutely no effect on anyone. Couldn't somebody in the legislature get it together long enough to just come up with a one-sentence amendment somewhere that if someone is going to be placed on parole, you don't need to talk about PRC?
Two of the more interesting cases were ones the court didn't decide: State v. Bowshier and State v. Upkins were dismissed as having been improvidently granted.
Sometimes I look up the backstory for the dismissal, but I didn't need to here. Fischer's two dissenting opinions, joined in by French, spell it out.
Both cases involved Anders briefs. Bowshier is messy from a procedural standpoint: it was an appeal from a forfeiture proceeding, and it's not clear that a defendant is entitled to appointed counsel for an appeal from one. But Upkins' dismissal is more puzzling. His appellate lawyer, who also represented him at trial, filed an Anders brief. The court reviewed the proceedings, found no error, granted the attorney leave to withdraw, and dismissed the appeal.
Fischer's grievance, it seems at first blush, is with the entire concept of Anders briefs. But when you drill down, you find that his complaint is that the court isn't addressing the issue. He doesn't really, either, omitting any mention of the central problem: an Anders brief is the appellate attorney's equivalent of the trial lawyer getting up in opening statement, shrugging his shoulders, and telling the jury, "I got nothing," before walking out.
To be sure, his is a likely vote for curtailing them: he points to several states and two Ohio appellate districts, the 4th and 7th, which prohibit them.
I'm not sure that's appropriate. There's a judge here who will conduct a painstaking 45-minute plea hearing, a painstaking 45-minute sentencing hearing, give the defendant two years of community control sanctions, and then appoint a lawyer for the appeal.
Still, something has to be done to limit their use. Last March, I pointed out that, in the preceding two years, 25% of the appeals in Butler County had been resolved on Anders briefs, including an appeal from an aggravated murder conviction after trial. That still seems to be the case; since May 1 of this year, the 12th District, which includes Butler County, has disposed of forty criminal cases. Nine of them were resolved by Anders briefs, the same attorney filing one in three separate cases.
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