More Impeachment Problems

I previously wrote about the problem of impeaching one’s own witness.  Generally, a party is not permitted to call a witness solely to impeach him as a backdoor method of getting otherwise inadmissible evidence into the record.  If you recall, Evid. R. 607 requires a party to demonstrate (1) surprise and (2) affirmative damage to their case in order to impeach their own witness with prior inconsistent statements.  But, there is the potential for an end-around this restriction.  Evid. R. 614 allows the court to call someone as the court’s witness.  When this happens, neither the prosecutor nor the defendant are calling the witness and each will be allowed to examine the witness under cross examination, as opposed to direct examination.

This means both parties can lead the witness and, importantly, impeach the witness. Because the recalcitrant witness is not technically being called by the state, the proscriptions in Evid. R. 607 do not apply.  I worked on a case maybe a year or so ago where the state utilized this very method in order to get an uncooperative witness to testify.  This tactic was recently employed by Montgomery County prosecutors again in State v. Christan, 2014-Ohio-2672.

Christan was a Dayton-area restauranteur indicted for several crimes, including making false alarms, insurance fraud and a violation of Ohio’s RICO statute.  The Second District’s decision is lengthy as it resolved a total of eleven assignments of error.  While there are several interesting legal issues involved, I want to focus on one in particular: the extent to which the decision on Evid. R. 614 might give the state the ability to skirt the old “voucher rule.”

In Christian, the court called the defendant’s co-conspirator (Mr. Adams) as its own witness at the request of the prosecution. Mr. Adams had been hired by the defendant to, among other acts, stage a burglary of defendant’s home, stage an arson at one of her restaurants, and fire shots at the defendant’s home to make it look like an enemy was out to get her.  The reason proffered by the state as to why the court should call him as a court’s witness was that Adams had an ongoing relationship with the defendant and would ‘likely be guarded in is testimony, due to his loyalties to the defendant, and the implications his testimony has on his involvement in the defendant’s crime spree.”

So the State wanted to call him, but feared that he may not be all that helpful and sought the ability to elicit testimony as upon cross-examination.  That does, in itself, seem appropriate.  I don’t really have any problems with that portion of the decision as a matter of law. If someone is reluctant to help the state, maybe the court should be able to call that witness so that the state is not limited in what it can elicit by the rules governing direct examination.  I don’t think that’s particularly fair, but under established law, it is right.

What is most important about the decision is how this procedure might be a method to emasculate Evid. R. 607(A).  While the Christian decision does not explicitly mention that the State wanted to cross Adams in order to impeach him with prior inconsistent statements, the opinion does note that “[t]he State also stated that Adams had become less cooperative with the State when he was told ‘he would not receive any consideration with respect to his own pending criminal charges in another county’.” So, it is fair to assume that Adams had at one point cooperated by providing statements adverse to the defendant, and the State was now worried he would testify differently at trial.  Nonetheless, even if this was not the case in Christian, the opinion implies this method of introducing otherwise inadmissble evidence is proper.

In overruling this assignment of error, the Second District cites one of its previous decisions, State v. Hazel, 2012-Ohio-835, in which is stated:

[i]ndeed, a request for designation of a court’s witness often arises precisely because the State has anticipated an unfavorable change in the witness’s account of previous events.”

This language seems to say that it is appropriate for the Court to help the state out by calling a witness precisely to allow the state to then elicit the prior inconsistent statements.  There is a major problem with this view: prior inconsistent statements are inadmissible hearsay.  While a party is always permitted to impeach a witnesses’ credibility with prior inconsistent statements, the prior statements are not to be considered substantive evidence toward any element of the offenses.  In other words, you can use prior inconsistent statements to show the jury this guy is a liar and should not be believed, but the earlier, conflicting statements are not ordinarily to be considered as affirmative evidence of the crime at issue.  Why did I use the term ordinarily? Well, because like most legal rules, there are exceptions.

Evid. R. 801 defines what is and what is not hearsay.  Subsection (D)(1) states that prior inconsistent statements are not hearsay when:

The declarant testifies at trial or hearing and is subject to cross-examination concerning the statement, and the statement is (a) inconsistent with declarant’s testimony, and was given under oath subject to cross-examination by the party against whom the statement is offered and subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (b) consistent with declarant’s testimony and is offered to rebut an express or implied charge against declarant of recent fabrication or improper influence or motive, or (c) one of identification of a person soon after perceiving the person, if the circumstances demonstrate the reliability of the prior identification.

So, does this make the prior inconsistent statements admissible as substantive evidence?  Not in most instances.  As the rule clearly states, the prior inconsistent statement has to be made under oath, subject to cross-examination, and subject to the penalty of perjury to be considered non-hearsay.  This is hardly ever going to be met in a criminal case.  Statements to detectives are not made under oath or subject to cross examination, period.  What about grand jury testimony, you ask?  Well, yes it is made under oath and subject to the penalty of perjury, but there is almost never any cross examination.  Rarely are defendants present at grand jury proceedings. Most often, the defendant is not even aware of when the grand jury is going to hear the case.

Unless the court believed that Adams’ prior statements met this standard, the statements are hearsay, and not relevant to prove any fact of consequence. Sure, the state could show his testimony at trial is not credible due to his prior statements, but that does nothing to prove the defendant is more likely to have committed the offenses at issue. It proves only that this man is a liar.

If a witness is impeached for the prior inconsistent statements, it would be proper for the judge to provide a “limiting instruction” to the jury.  Basically, the court should tell the jury that it may consider those prior statements in assessing this man’s truthfulness as a witness, but it may not take those statements into account when evaluating the evidence of the defendant’s guilt.  Do these work? Not really. Jurors are people and it’s hard to “un-hear” what you heard.

So if the defendant requests and receives a limiting instruction, the damage has been done anyway.  This is precisely why the state likes to get the statements before the jury.  In a purely legal sense, it does nothing for their case.  It’s the practical affect of the statements that provides the benefit. This is why courts should be reluctant to call a witness when the sole reason to put him on the stand is to elicit the prior inconsistent statements.  The procedure should be utilized only when a witness simply doesn’t want to say much and cross-examination will ease in the elicitation of evidence relevant to guilt or innocence.



Cell Phone Issues

Everyone has a cell phone these days.  And we do a lot of our daily tasks on our cell phones.  They really are mini computers, not merely our primary way of communicating to one another. Like watches used to be, we feel naked when discovering we don’t have our phone. It is almost always with us.  That is probably a good thing.  However, if you engage in criminal conduct, cell phones have become a major problem as they contain a lot of information about where we are, where we have been, who we communicate with, and what we communicate.

Privacy issues with cell phones are heating up in a variety of contexts.  To what extent does the 4th Amendment protect citizens from police intrusion into the data stored or transmitted by our cell phones?  Let’s look at two of the major issues moving their way through the courts.

Warrantless Search Of Cell Phones.

The United States Supreme Court recently heard oral argument in two cases dealing with the warrantless search of an arrestee’s cell phone, U.S. v. Wurie and Riley v. California.  The government contends that police should be permitted to search the content of a person’s cell phone, without a warrant based upon probable cause, whenever that person is under arrest.  The government claims the “search incident to an arrest” exception to the warrant requirement is applicable.  This particular exception is well established.

Police are allowed to rummage through your pockets and open your pack of cigarettes to see whats inside before they place you in the cruiser and take you downtown.  The idea behind the exception is that if the police are going to take someone into custody, it is reasonable for them to search the person for evidence or weapons in order to prevent destruction of evidence and to protect officers. Because the 4th Amendment only prohibits “unreasonable searches,” a warrantless search under these circumstances is constitutional.

The incident to arrest exception has been extended to permit warrantless searches of the areas immediately surrounding the physical location of the arrestee.  This is often referred to as the “Chimel” area, which is named after the Supreme Court case in which the rule was established.  The Chimel area consists of drawers, cabinets, and closets within the reach of the arrestee.  Subsequent cases further give police the right to search the interior of a car where a person in arrested.

At one time, police were actually allowed to search the interior of a car in which an arrestee had recently been, but was no longer located.  In other words, up until recently, the supreme court had allowed police to observe someone exit a vehicle, arrest them outside of the vehicle, secure the person in the back of a cruiser and then search the interior of the vehicle in order to prevent the arrested person from destroying evidence or grabbing a weapon.

One can see the justification for searching the guys physical person and areas he can reach.  That actually has some logic.  But, the question now is why would police need to search the data on a cell phone?  No one hides weapons or drugs in a cell phone.  And if they are worried about the guy destroying evidence on the cell phone, they can simply seize it and obtain a warrant to search.  To my knowledge, no criminals I’ve ever met can delete illegal content on a cell phone with his handcuffs on.

The obvious answer as to why police do not want to have to get a warrant is that they might not have any probable cause to believe there is evidence of a crime on the phone. They want to get the guy’s contacts so they know who he gets his drugs from and who he sells to.  The state can’t just come out and say that, though, so they made up a lot of illogical reasons why searching the phone would promote to two overriding policies behind the exception: (1) preservation of evidence and (2) officer safety.

While I don’t know how the supremes are going to view the case, we already have a ruling in our great state.  The Supreme Court of Ohio has already held that police must get a warrant to search the content of a cell phone taken from an arrestee.  In State v. Smith, the Court stated in summation:

“We hold that the warrantless search of data within a cell phone seized incident to a lawful arrest is prohibited by the Fourth Amendment when the  search is unnecessary for the safety of law-enforcement officers and there are no exigent circumstances. Because the state failed to show that either of these exceptions to the warrant requirement applied, the search of Smith’s cell phone was improper, and the trial court was required to exclude from evidence the call records and phone numbers taken from the cell phone.”

It will be interesting to see how SCOTUS rules.

Third Party Data

Another important question related to cell phones is to what extent does someone have the right to prevent government intrusion into data conveyed to third parties (i.e., the provider’s records or the webpages visited, etc). The answer here is, not much.  The 4th Amendment precludes the government from searching or infringing on reasonable privacy interests.  If a person subjectively has a reasonable expectation of privacy and society objectively recognizes that expectation as reasonable, 4th amendment protections apply.  The government must then have probable cause to invade that protected interest.

If, however, the claimed privacy interest is not reasonable, the 4th amendment is not implicated and the police may search and seize as they see fit.  By way of illustration, it would be a violation of the 4th Amendment for the police to bug your home and listen to your living room conversations (without a warrant).  But, if you have that same conversation in a coffee shop, the police are fully entitled to sit at the table next to you and eavesdrop.  It is unreasonable for someone to believe that his public conversations couldn’t be overheard by third parties, whether detectives or the nosy neighbor-type. If you didn’t want others to hear what you said, you should have said it in a private place.

The idea that whatever information you voluntarily provide to others is no longer “private” has allowed the government to get all sorts of information on prospective defendants from telecommunications companies.  Once you send information via cell phone to third parties, that information is no longer subject to the 4th Amendment’s protections.   Police will not need a warrant.  They may not even need a subpoena, depending on how helpful the company wants to be.

This issue is illustrated by the Second District’s recent decision in State v. Taylor, 2014-Ohio-2550.  Taylor, his brother and a third accomplice had driven from his home in Detroit, Michigan to Dayton, Ohio.  Rather than taking in a Dragon’s game, they held up a pawn shop.  Bullets proceeded to fly and after the dust settled, two people were dead – the pawn shop owner and the accomplice.  Taylor was ultimately convicted of two counts of murder.

At the trial court level, Taylor filed a motion to suppress the evidence obtained from the warrantless searches of his cell phones, including GPS data that tracked his location at various times as he traveled to and from the crime scene.   The police had submitted a request form to the telecommunications provider requesting the “ping” history of two cell phones.  As the decision states, “pings are GPS locations that are [emitted] from phones that will give geographic location of the phone, and it will range usually in meters …” Essentially, the cell phone pings provided a map of everywhere Taylor had been, which, unfortunately for him, included the pawn shop at the time of the murders.

Taylor claimed that the tracking of the cell phone pings constituted a search and required a warrant.  The court overruled his motion, determining that he had no legitimate expectation of privacy in this information collected and stored by the phone company.  The Appellate panel agreed.

The decision cites several cases in which information conveyed to third party providers loses any expectation of privacy, including electricity usage bills and phone logs collected by the phone company. Therefore, the information is not protected by the Fourth Amendment.  Not only do the police not need a warrant, they don’t even need probable cause.  As part of its analysis, the Second District included the following quote:

“The Supreme Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.”

That pretty much sums it up.  Just because you may not expect the police to be snooping around your cell phone records, or anticipate that your service provider will allow them, doesn’t mean it is unconstitutional.  Anything you voluntarily convey to third parties is not protected by the 4th Amend and is fair game for authorities to search and seize.

US v. Wurie and Riley v. California

When Police Destroy Evidence

In a remarkably brave decision, the Second District court of appeals ruled that police destruction of a materially exculpatory video must result in dismissal of the indictment.  The case is State v. Blair, 2014 Ohio 1279.  This result is rare.  Not only is the legal standard that defendants must meet absurdly illogical and almost insurmountable, as I will discuss below, but the felony that was ordered dismissed in this case was assault on a police officer.  You know the appellate court really had some problems with the officers for it to dismiss that particular charge.

I often file motions to preserve evidence along with my request for discovery.  The reason is simple.  If I believe there is helpful evidence that may eventually spoil or be destroyed, I want the court to order its retention for my use.  This could be samples of an illegal substance, which could be used for independent testing or reweighing, or it could be the dash-cam on the police cruiser.  Let’s just say it is not uncommon for my client’s rendition of events to differ significantly from the officer’s.

If the interaction of the officer and my client is captured on a video, I want to see that.  Sometimes I wished there wasn’t a video, but other times it is very helpful.  But what happens when the video is destroyed by the state? One of the remedies is for the trial court to grant a motion to dismiss.  Seems fair, right?  There is just something unseemly about the notion that there is an independent, objective way to prove who’s telling the truth, but that it has been lost forever, conveniently or not.  So let’s look at when the court should dismiss the charge.

Legal Standard:

Due Process protections prevent the state from convicting a defendant when (1) the state fails to preserve “materially exculpatory evidence,” or (2) destroys in bad faith “potentially useful” evidence.   In short, when the evidence is materially exculpatory, a defendant need not show the state acted with any form of malice (bad faith).  All a defendant needs to demonstrate is that the state had a duty to preserve the evidence and failed to do so, whether on accident or through negligence.  If, however, a defendant can show the state acted in bad faith, the defendant only has to convince the trial court that the evidence was “potentially useful,” even if it wouldn’t have necessarily established his innocence.

In Blair, the Second District noted that to be considered materially exculpatory, “evidence must possess an exculpatory value that was apparent before the evidence was destroyed, and be of such nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.”

At first glance, this standard doesn’t seem all that bad.  If a defendant can get comparable evidence from some other place, why worry so much.   And although the Blair court considered the evidence to have been materially exculpatory in this case, most trial courts hardly reach the same conclusion when applying the above standard.

Because trial court’s believe almost anything that comes out of officers’ mouths, all the police have to say is, “whoops, my bad.”  “I accidentally erased the video.  I’m so sorry.” That takes us out of bad faith. We now have to prove not just the utility of the evidence, but that it is (1) exculpatory, (2) the exculpatory nature of it was apparent prior to its destruction, and (3) there is no comparable evidence obtainable elsewhere.

Normally, that is an insurmountable standard.  First, how in the world is a defendant going to prove the evidence is exculpatory without having ever seen it?  If you have no idea what is on it, how much of the event was captured, it is difficult to argue that it would prove your guy’s innocent.   It is through witness testimony that you prove the exculpatory nature of the evidence.  And let me tell you, trial court’s always believe what the defendant and his friends say would be shown on the video had it been preserved.  In reality, the trial judge holds the hearing, listens to witnesses from both sides and immediately proceeds to credit the officer’s testimony, which undoubtedly “proves” that the video was not exculpatory.

Second, another nifty part of this standard is that a defendant must demonstrate that the exculpatory nature of the evidence was apparent prior to its destruction. Huh? Apparent to who?  Again, the defendant never saw it.  It takes officers to say what was on it, if anyone ever saw it at all.  Also, it is not uncommon for something that appears at first glance to be innocuous to end of being really helpful.  That’s why we review the evidence over and over again.  You see things the second time you may not have seen the first.  And how would officers truly appreciate what might be exculpatory.

So why was Blair’s motion ultimately sustained by the appellate court? Because of the rare circumstances that other independent evidence existed that tended to show the cop’s were less than truthful.  An internal affairs investigation had been conducted shortly after Blair’s arrest. The investigating officer watched the video and wrote a report.

His version of what was on the video, as memorialized in his report, didn’t coincide with the arresting officer’s version of events.  Plus, the same investigating officer’s testimony at the evidentiary hearing wasn’t believable.  He had a poor excuse for why his initial report failed to corroborate the arresting officer’s claims, while he now claimed that it mostly did.  The appellate panel probably smelled the rat.  The opinion notes the inconsistencies in the testimony of the various officers.  I believe that was the biggest reason it had a hard time rubber stamping the trial court’s decision.  The entire thing just felt wrong.

In summary, if a defendant is going to prevail on a motion to dismiss, there better be some other, objective information from some officer that supports the contention that the video would exculpate the defendant.  Luckily for Blair, this was one of those cases.



The Latest and Greatest Misused Crime: Disrupting Public Services (F4)

In its infinite wisdom, our beloved legislature keeps creating new laws and new ways for folks to end up behind bars.  Sometimes, I suppose, there is a need for a new offense.  Life changes, after all, and the manner in which we interact and conduct business changes almost daily, it seems.  However, I still contend that new evils can largely be handled by existing offenses.

Rest assured, there is almost nothing mean you can do to another human being that won’t be considered a crime as you read this today.  If the legislature immediately stopped creating new crimes, there would still be nothing mean you could do to someone else 20 years from now without being a criminal.   One of my personal favorites is R.C. 2917.46, which is entitled: “Unauthorized use of block parent or Mcgruff house symbol.” I have no idea what led to this provision’s passage. But whatever happened after someone was fooled into believing the defendant’s home was a Mcgruff house was probably already a crime, and probably much worse than the false claim itself.  Is this really needed? Of course not. Yet, the new crimes keep on coming.

By the way, this is the major reason our courts had a heck of a time dealing with the merger of “allied offenses of similar import.”  A single course of illegal conduct can arguably constitute several, if not dozens, distinct statutory offenses. Prosecutors charge them all and leave it to the judge to ultimately decide which ones are so similar that they really are the “same offense” such that multiple convictions violate double jeopardy protections.  Prosecutors like to charge as many offenses as possible to create negotiating leverage.

Okay, I’ll get off my soapbox on this issue.  Well, mostly.  Another absurd result of having so many crimes on the books is that it only takes one creative prosecutor to utilize a particular offense in a situation for which it wasn’t really intended.  If the elements seem to fit, they charge it, even when there is a different statute that more aptly fits what the defendant did.

Why would prosecutors do this?  Again, it is a matter of negotiating leverage or the fact he or she simply doesn’t like the guy. If you can charge someone with a felony, why settle for the misdemeanor, even if the misdemeanor is really more on point.

This is what has happened with the Disrupting Public Services statute.  Prosecutors are now using this statute as a way to backdoor a felony charge in the typical misdemeanor domestic violence situation (DV).  Typically, a first-time offender for DV is only facing a misdemeanor, not a felony. Oh, and why we need the specific crime of DV  when assault is and has been on the books, is beyond me.

Anyway, R.C. 2909.04 reads in relevant part:

(A) No person, purposely by any means or knowingly by damaging or tampering with any property, shall do any of the following:

   (1) Interrupt or impair television, radio, telephone, telegraph, or other mass communications service; police, fire, or other public service communications; radar, loran, radio, or other electronic aids to air or marine navigation or communications; or amateur or citizens band radio communications being used for public service or emergency communications;

   (2) Interrupt or impair public transportation, including without limitation school bus transportation, or water supply, gas, power, or other utility service to the public;

   (3) Substantially impair the ability of law enforcement officers, firefighters, rescue personnel, emergency medical services personnel, or emergency facility personnel to respond to an emergency or to protect and preserve any person or property from serious physical harm.

(B) No person shall knowingly use any computer, computer system, computer network, telecommunications device, or other electronic device or system or the internet so as to disrupt, interrupt, or impair the functions of any police, fire, educational, commercial, or governmental operations.

So, this apparently prohibits messing with any form of public service, which is something that ought to be outlawed – and already was under trespassing, criminal mischief, vandalism, etc. I guess I haven’t actually gotten off my soapbox entirely. Sorry.

However, now prosecutors are charging guys accused of domestic violence with this felony of the fourth degree when the girl’s cell phone gets damaged as well.  How in the world destroying a singular cell phone would disrupt “mass communications services” is really a stretch, but courts have bought it.  Therefore, defendants are told: “you never should have shoved/punched her, DV is a terrible plague on society and therefore, we’re going to punish you with a misdemeanor.  Oh, and the fact you threw her cell phone in anger is going to carry 18 months in prison as a felony.” Does that make sense?

I would argue that the legislature enacted this statute to prohibit someone from knowingly destroying a telephone pole or a satellite dish, or the radio transmissions of the local fire department, etc., such that mass communications are truly interrupted.  It was not enacted to hang a felony on a guy that, out of anger, destroyed a lady’s cell phone by throwing it across the room during their altercation. But the state is busy utilizing this statute for that very scenario.

There must have been some prosecutor’s convention where this brilliant idea was broadcast because I see it more and more.  And until appellate court’s start to rethink how destroying a cell phone, or cutting a single phone cord could possibly disrupt “mass communications,” we’ll continue to see it used.

Oh, and just for the record: it was already illegal to destroy someone’s personal property.  And I highly doubt that absent this statute being enacted, a defendant would have been in the clear after blowing-up the sewage system. That’s just a hunch.




Some random Issues

Effective Assistance of Appellate Counsel:

The Ohio Supreme Court recently issued a decision in State v. Johnson, 2014 Ohio 770, in which it stated that a criminal defendant’s appellate attorney is entitled to view what is know as a pre-sentence investigation report (PSI) as part of his or her representation on appeal.  Believe it or not, prosecutors were arguing that a defendant’s appellate counsel should not be allowed to view this report that is routinely prepared in the trial court, and greatly impacts the sentence a defendant receives.  Only in America.

Under Ohio law, a defendant may not be sentenced to community control sanctions (i.e. probation) for a felony unless the court first orders and considers a PSI.   After a defendant is convicted, either after trial or through a plea, the court will order the adult probation department to meet with the defendant, gather all pertinent information about the defendant and prepare this report with a recommendation as to whether the defendant should be given community control or be sent to the pen.  Most judges will follow the recommendation of the probation department, so this recommendation is usually a very big deal.  The report usually consists of facts and information about the crime itself, the victim, the defendant’s social, educational and criminal background, and other ancillary matters.  PSI’s are then filed under seal and are virtually unobtainable by interested parties, save for the government, of course.

Although by statute the PSI is supposed to be part of the appellate record automatically, in practice a motion must usually be filed with the appellate court directing the trial court to send it (under seal) to the appellate court.  I have handled a few appeals where the state wanted to make the PSI part of the record and the appellate court has never told them “no.” Well, in Johnson, the defendant’s appellate attorney wanted to make the PSI part of the record and the opportunity to view it.  For whatever reason, Johnson’s counsel thought it might be helpful.  The state objected and the 12th District Court of Appeals agreed with the state that a defendant’s appellate counsel is not allowed to view the defendant’s PSI.

The argument against the disclosure of the PSI  was purely a statutory construction one, and the 12th Dist. relied on the technical wording of the statute to deprive an attorney of important information regarding his client’s sentence.

Revised Code Section 2951.03(D)., reads:

“The contents of a presentence investigation report prepared pursuant to this section, section 2947.06 of the Revised Code, or Criminal Rule 32.2 and the contents of any written or oral summary of a presentence investigation report or of a part of a presentence investigation report described in division (B)(3) of this section are confidential information and are not a public record. The court, an appellate court, authorized probation officers, investigators, and court personnel, the defendant, the defendant’s counsel, the prosecutor who is handling the prosecution of the case against the defendant, and authorized personnel of an institution to which the defendant is committed may inspect, receive copies of, retain copies of, and use a presentence investigation report or a written or oral summary of a presentence investigation only for the purposes of or only as authorized by Criminal Rule 32.2 or this section, division (F)(1) of section 2953.08, section 2947.06, or another section of the Revised Code.” (emphasis added).

The State argued that term “Defendant’s counsel,” quoted above did not mean his appellate counsel, only his trial counsel.   The Supreme Court had little trouble declining to adopt such an absurd interpretation, stating “[c]onstruing R.C. 2951.03 and 2953.08(F)(1) to preclude appellate counsel from accessing the presentence investigation report may implicate constitutional concerns of due process and/or the right to effective assistance of appellate counsel on a first appeal as of right.” No, really? That this case was an easy call for the Court is not what is news. Rather, it is the fact that the state would even spend time and energy arguing against disclosure of important information to a defendant’s attorney.

Wrongful Imprisonment.

In another decision recently handed down by the Ohio Supreme Court, it was decided that basically there is no way for a person to collect under the wrongful imprisonment statute.  Ohio, like all states, is entitled to sovereign immunity, meaning its citizens cannot sue it unless it agrees to be sued.  I know, why would a state ever agreed to be sued?  Well, Ohio has opened its courts to civil suits where it is the defendant in limited situations, one of which was supposed to be for those folks that were wrongfully imprisoned. Think of the guy that spent 20 years in the can for a rape he didn’t commit. Shouldn’t he be entitled to compensation? The legislature thought at least some defendants ought to be compensated for losing years or decades of their life behind bars when they didn’t deserve to be there.

So how did the court gut the statute?  This time statutory construction cuts against defendants. In Mansaray v. State, 2014 Ohio 750, the Court was required to construe some admittedly weird language of the wrongful imprisonment statute, R.C. 2743.48.  While there are a total of 5 elements a litigant must establish in order to be considered “wrongfully imprisoned,” the Court focused exclusively on the 5th element.  Section A of the applicable statute reads as follows:

(A) As used in this section and section 2743.49 of the Revised Code, a “wrongfully imprisoned individual” means an individual who satisfies each of the following:

   (1) The individual was charged with a violation of a section of the Revised Code by an indictment or information, and the violation charged was an aggravated felony or felony.

   (2) The individual was found guilty of, but did not plead guilty to, the particular charge or a lesser-included offense by the court or jury involved, and the offense of which the individual was found guilty was an aggravated felony or felony.

   (3) The individual was sentenced to an indefinite or definite term of imprisonment in a state correctional institution for the offense of which the individual was found guilty.

   (4) The individual’s conviction was vacated, dismissed, or reversed on appeal, the prosecuting attorney in the case cannot or will not seek any further appeal of right or upon leave of court, and no criminal proceeding is pending, can be brought, or will be brought by any prosecuting attorney, city director of law, village solicitor, or other chief legal officer of a municipal corporation against the individual for any act associated with that conviction.

   (5) Subsequent to sentencing and during or subsequent to imprisonment, an error in procedure resulted in the individual’s release, or it was determined by the court of common pleas in the county where the underlying criminal action was initiated that the charged offense, including all lesser-included offenses, either was not committed by the individual or was not committed by any person.

Okay, the first four requirements seem to make sense, if you try not to think too hard as to how someone could be sent to prison for a anything other than a definite or indefinite prison term.  But, I digress.  The real issue was the fifth requirement.  A defendant has to show that either (1) a court ruled that no crime was committed at all, or at least that he didn’t do it; or (2) there was an error in procedure, subsequent or during imprisonment, that ultimately resulted in his release.

In Mansaray, the criminal defendant turned civil litigant had successfully challenged on appeal the trial court’s decision overruling his motion to suppress.  In other words, the appellate court said, “hey trial court, you should have suppressed that evidence, Mansaray should never have been convicted, and we reverse his conviction and sentence.” Because the state did not have any competent evidence to seek a conviction after the appellate court’s ruling, Mansaray was in the clear.  And, in his mind, had been wrongfully imprisoned the entire time it took to have his case resolved. Not so says the Supreme Court.

The decision notes that Mansaray could not show that no crime had been committed, or that Mansaray didn’t commit it.  Drugs were actually found in Mansaray’s home.  It was only because that the police forget their elementary school civics lessons that he wasn’t convicted.  In real life, this guy illegally possessed drugs.  So, the only way to satisfy the statute’s fifth element was for Mansaray to show that an error in procedure had occurred that resulted in his release.  And that is where the problem arises.

Certainly there was an error in procedure: the trial court erred in not suppressing the illegally seized evidence.  Further, the error in procedure did result in his release from prison.  No problem, right?  Wrong.  The Supremes noted that the statute required the error in procedure to have taken place subsequent to or during the imprisonment.  Here, the error had taken place well before the imprisonment.

While the language of the statute does support this decision, it is a little absurd to think that a defendant should have to show an error in procedure after his case is over and he’s serving his 10-20 years.  There are no more procedures left for someone to mess up.   So, this basically leaves a defendant with only one option to seek relief under the statute:  convince the common pleas court that no crime was actually committed (fat chance) or that the defendant didn’t do it (better chance for DNA cases like rape, murder, etc.).

The court didn’t elaborate on what type of procedure could possibly happen while the defendant’s behind bars, and I struggle to think of one.  If I happen to discover some way in which this portion of statute could be satisfied, I’ll update.  Otherwise, let’s go with the theory that the state didn’t really want to be sued by some guy that, in reality, did do something wrong.  This is so even if the state violated his constitutional rights while it was busy sending him to prison.