Search results for: ohio v clark

On June 18, 2015, the U.S. Supreme Court handed down a merit decision in Ohio v. Clark. In a unanimous decision written by Justice Alito, in which Justice Scalia, joined by Justice Ginsburg, concurred in judgment only, and Justice Thomas wrote a solo separate concurrence in judgment only, the Court held that the admission of a young child’s out-of-court statements to his teachers identifying the defendant as his abuser did not violate the Confrontation Clause, even though the child did not testify at the trial.

Case Background

Darius Clark, known as “Dee,” lived with his girlfriend T.T. and her two children L.P., a then three year old boy, and A.T., a then 18 month old girl. Only L.P. is involved in this case.

One day at school, one of L.P.’s preschool teachers, Ramona Whitley, noticed that L.P.’s left eye was bloodshot and bloodstained.  In better light, Whitley noticed other marks on his face.  Whitley contacted the class lead teacher, Debra Jones, who contacted her supervisor.  Upon questioning by the teachers about what had happened and who had done this to him, L.P. said something like “Dee Dee.” When Jones asked if Dee were big or little, L.P. said Dee was big. Further examination of L.P. revealed more injuries.  Whitley called the authorities to report the suspected abuse.

When Clark later arrived at the school, he denied any responsibility for what had happened, and quickly left with L.P. The next day a social worker found both children at the home of Clark’s mother, and took them to the hospital, where a doctor determined both had been abused.

Ultimately, Clark was charged with multiple counts of child endangerment, felonious assault, and domestic violence. L.P. did not testify at Clark’s trial, because the trial court found him incompetent to do so under Ohio Evid.R. 601(A), which presumes children under ten who “appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly” are incompetent to testify.

Clark moved to exclude L.P.’s out-of-court statements to his teachers on the grounds they violated his rights under the Confrontation Clause. The trial court denied the motion. The trial court allowed the state to introduce L.P.’s statements to his teachers pursuant to Ohio Evid. R. 807, a special hearsay exception for child statements in abuse cases. The rule allows the admission of reliable hearsay by child abuse victims.

The jury found Clark guilty of all but one charge. He was sentenced to twenty-eight years in prison.

On appeal, Ohio’s Eighth District Court of Appeals reversed, finding the introduction of L.P.’s statements to his teachers violated the Confrontation Clause. In a 4-3 decision, in State v. Clark, 2013-Ohio-4731, the Supreme Court of Ohio agreed, holding that a child’s statement to his teachers about physical abuse constitutes testimonial evidence barred by the Confrontation Clause when the child has been found incompetent to testify.  Ohio’s Chief Justice Maureen O’Connor wrote the dissent, finding the statements nontestimonial, and thus admissible.

Supreme Court of Ohio Decision

The Supreme Court  of Ohio majority held two things, (these holdings form the syllabus of the case), both of which were declared incorrect by the U.S. Supreme Court decision: first, that when questioning a child about suspected abuse, pursuant to a teacher’s statutory duty to report abuse, a teacher acts in a dual capacity as both an instructor and as an agent of law enforcement.  Second, the statements made in this case were testimonial because they were made to the teachers for the primary purpose of helping gather evidence to identify and prosecute the offender, and were made in the absence of any ongoing emergency.

Analysis of U.S. Supreme Court Decision

Part I is the Case Background

Part II A 

In this part of the opinion, the Court reviews the basic Confrontation Clause jurisprudence from Crawford v. Washington, 541 U.S. 36 (2004) to the present. In Crawford, the Court rejected the reliability rationale of Ohio v. Roberts.  Where testimonial evidence is at issue, the Sixth Amendment demands that if the declarant is unavailable, the defendant must be given a prior opportunity for cross examination.  But Crawford did not define “testimonial,” leaving that for future development.

That future development came in a pair of domestic violence cases decided the same day,  Davis v. Washington, 547 U.S. 813 (2006) and Hammon v. Indiana, 547 U.S. 813 (2006). In those cases the Court formulated what has become known as the primary-purpose test. Statements are non-testimonial when their primary purpose is to help police respond to an ongoing emergency. By contrast, statements are testimonial when their primary purpose is to gather evidence to help prove a crime.

The Court  again addressed the primary purpose test in 2011 in Michigan v. Bryant,  562 U.S. 344 (2011). The Court greatly expanded the concept of an ongoing emergency and held that context very much matters. The primary purpose inquiry must include all relevant circumstances, of which an ongoing emergency is just one factor. A very important additional factor is the formality of the interrogation. A formal station house interrogation is more likely to produce testimonial statements, while less formal questioning is less likely to do so.  The touchstone here is whether the primary purpose of the questioning was to “create an out-of-court substitute for trial testimony” (Bryant, at 358).

All of the statements in these precedential cases were statements to law enforcement. Justice Alito notes that the Court had not yet addressed the question of whether similar kinds of statements made to non-law enforcement personnel raised similar Confrontation Clause concerns.  It addresses that question in this case.

There is one other very striking finding in this part of the opinion, which Justice Scalia later pounces on.  Justice Alioto wrote, quoting from Bryant, “[A]nd in determining whether a statement is testimonial, ‘standard rules of hearsay designed to identify some statements as reliable, will be relevant.’” Does this sound like Ohio v. Roberts sneaking in the back door, I wrote in my margin notes when reading this.

So, then, the Court concludes this  section with two important holdings.  One, if the primary purpose is not testimonial, the “admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.” And two, the primary purpose test is a necessary, but not always sufficient basis on which to preclude admission of those out-of-court statements. So the question becomes, if the primary purpose test isn’t always sufficient, what else is needed?

Part II B

The Court here tackles the question it has previously reserved—how to characterize statements made to persons other than law enforcement, in this case teachers.  The Court refused to write a bright line rule that no statements made to non-law enforcement personnel raise Confrontation Clause concerns. But the Court found that they are less likely to be testimonial than statements made to law enforcement personnel.

The holding here is that, in considering all relevant circumstances (remember, Bryant requires that) L.P.’s statements to his teachers were not made for the primary purpose of prosecuting Clark; thus their introduction at trial did not violate the Confrontation Clause.

The Court found that L.P.’s statements did occur in the context of an ongoing emergency—clearly rejecting the Supreme Court of Ohio finding that they did not. The Court noted that as in Bryant, the emergency here was ongoing and the circumstances unclear.  And the Court adopted one of Ohio Chief Justice Maureen O’Connor’s main dissent points—that the main objective of the teachers’ questioning was to protect L.P., not to collect evidence to prosecute Clark.

Once again, the Court emphasized that context matters.  The questioning here occurred in an informal setting—a preschool lunchroom and classroom. This was nothing like a formal station house interrogation.  That tilts toward non-testimonial, as does the fact that the statements were made to teachers. It is not the job of teachers (notwithstanding the mandatory abuse reporting requirements) to dig up evidence to prosecute people.

Another key finding incorporated the concerns expressed by many of the justices during the oral argument of this case about how in the world a little kid forms a primary purpose.  After all, that test is supposed to be applied from the point of view of the declarant.  Here is what the Court said about that:

“L.P.’s age fortifies our conclusion that the statements in question were not testimonial.  Statements by very young children will rarely, if ever, implicate the Confrontation Clause.”

And, Justice Alito also threw in a little originalism, noting that historically, “there is strong evidence that statements made in circumstances similar to those facing L.P. and his teachers were admissible at common law.” And he provides that evidence.

Part III

This part of the opinion refutes the arguments made by Clark. The Court rejected Clark’s argument (accepted by the Supreme Court of Ohio majority) that the mandatory reporting obligation made teachers law-enforcement agents.  The Court held that mandatory reporting duties do not “convert a conversation between a concerned teacher and her student into a law enforcement mission aimed primarily at gathering evidence for a prosecution.” Teachers are nurturing, and their main concern was to protect L.P. and get him out of harm’s way. The fact that the questioning ultimately led to Clark’s prosecution was both irrelevant and inevitable.

Clark was also wrong to argue that the admission of the statements was fundamentally unfair because Ohio law does not allow incompetent children to testify. That problem is handled by Ohio’s special hearsay exception for child abuse statements. Finally, the Court rejected Clark’s position that the primary purpose of the questioning should be evaluated from the perspective of whether the jury would view the statements as the equivalent of in-court testimony.

Conclusion

L.P.’s statements to his teachers were not testimonial.  Judgment  reversed and case remanded.

Justice Scalia’s Separate Concurrence in Judgment Only

Scalia agrees that because of L.P.’s age his primary purpose was not to “invoke the coercive machinery of the State against Clark.” He also agreed that L.P.’s conversation with his teacher lacked the solemnity necessary for testimonial statements, and that their primary purpose was to protect L.P. from harm.

Scalia said that he wrote separately “to protect the Court’s shoveling of fresh dirt upon the Sixth Amendment right of confrontation so recently rescued from the grave in Crawford v. Washington.” He criticizes Justice Alito for his hostility to Crawford, and for an attempt to sneak back to Ohio v. Roberts.

Justice Ginsburg joined this separate concurrence in judgment only.

Justice Thomas’ Separate Concurrence in Judgment Only

Justice Thomas agrees that mandatory reporters of abuse do not become agents of law enforcement here, that statements made to private persons or by very young children will rarely implicate the Confrontation Clause and that the admission of the statements in this case did not.

As he has said before, though, he would find the proper touchstone to be whether statements made—be it to private persons or law enforcement-have sufficient indicia of solemnity to qualify as testimonial. These clearly did not.

Concluding Observations

This case is certainly a big win for Ohio’s Chief Justice Maureen O’Connor.  She wrote a blistering dissent in Ohio’s 4-3 decision in State v. Clark, emphasizing the primary role of teachers as protectors, not law-enforcement agent prosecutors. She urged the state to take this case up to the U.S. Supreme Court in her dissent, and she has surely been vindicated.

Here’s how her dissent began:

“The majority decision creates confusion in our case law, eviscerates Evid.R. 807, and threatens the safety of our children. Not surprisingly, it is also wrong as a matter of federal constitutional law.” She  emphatically disagreed with the majority that teachers become agents of law enforcement merely because they are required to report child abuse. She also questioned the use of the primary purpose test when the questioner is not a member of law enforcement, suggesting the objective witness test instead. Although she didn’t get that from the U.S. Supreme Court, she got the equivalent or better, particularly with the finding that the statements of very young children will rarely implicate the Confrontation Clause. That should help with some of Ohio’s messy jurisprudence on child witnesses. Most of all, though, the U.S. Supreme Court clearly saw the teachers as protectors in an ongoing emergency here, which was one of her overarching points.

 

 

Read the complete analysis of the merit decision here.

In a 9-0 decision released today, in Ohio v. Clark, the U.S. Supreme Court held that the admission of a young child’s out-of-court statements to his teachers identifying the defendant as his abuser did not violate the Confrontation Clause, even though the child did not testify at the trial.  Read the blog’s background of the case here. Read the U.S. Supreme Court’s merit decision  here.

Here is a quotation from the opening paragraph of the opinion, written by Justice Alito:

“The question in this case is whether the Sixth Amendment’s Confrontation Clause prohibited prosecutors from introducing those statements (Professor’s note—the statements made by  the child, L.P., identifying Clark as his abuser to his teachers) when the child was not available to be cross-examined. Because neither the child nor his teachers had the primary purpose of assisting in Clark’s prosecution, the child’s statements do not implicate the Confrontation Clause and therefore were admissible at trial.”

Joining Justice Alito were Chief Justices Roberts, and Justices Kennedy, Breyer, Sotomayor and Kagan. Justice Scalia wrote a separate opinion, concurring in judgment, joined by Justice Ginsburg. Justice Thomas wrote his own opinion, also concurring in judgment.

I’ll do a proper analysis of the merit decision when I have had a chance to read and absorb the decision.

 

Update: on June 18, 2015, the U.S. Supreme Court issued a merit decision in this case.  Read the analysis here.

On March 2, 2015, the U.S. Supreme Court heard oral argument in Ohio v. Clark. The two specific questions involved are

  1. Does an individual’s obligation to report suspected child abuse make that individual an agent of law enforcement for purposes of the Confrontation Clause?
  2. Do a child’s out-of-court statements to a teacher in response to the teacher’s concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause?

Case Facts

Three year old L.P. and his two year old sister lived with their mother and her boyfriend Darius Clark. One day at school, one of L.P.’s preschool teachers, Ramona Whitley, noticed that L.P.’s left eye was bloodshot and bloodstained.  In better light, Whitley noticed other marks on his face.  Whitley contacted the class lead teacher, Debra Jones, who contacted her supervisor.  Upon questioning by the teachers about what happened, L.P. said “Dee did it.”

As a person required by law to report suspected child abuse, Whitley contacted the authorities.  A social worker arrived at the school. As the social worker was questioning L.P., Clark arrived, denied any responsibility, and left with L.P. The next day a social worker found both children at the home of Clark’s mother, and took them to the hospital, where a doctor determined both had been abused.

Ultimately, Clark was charged with multiple counts of child endangerment, felonious assault, and domestic violence. The trial judge found L.P. incompetent to testify at trial, but allowed seven witnesses—including his preschool teachers, police officers, social workers, his maternal grandmother and his maternal great aunt to testify as to what L.P. had told them.The jury found Clark guilty of all but one charge. He was sentenced to twenty-eight years in prison.

On appeal, the Eighth District Court of Appeals found the statements to relatives inadmissible under Evid. R. 807, and the rest inadmissible under the Confrontation Clause.

The only statements at issue in the appeal to the Supreme Court of Ohio were L.P.’s statements to his teachers.

Supreme Court of Ohio Merit Decision

The merit decision in this case, State v. Clark, 2013-Ohio-4731, was handed down on October 30, 2013. In a 4-3 decision written by Justice Terrence O’Donnell, for himself and Justices Paul Pfeifer, Sharon Kennedy and Bill O’Neill, the court held that a child’s statement to his teachers about physical abuse constitutes testimonial evidence barred by the Confrontation Clause when the child has been found incompetent to testify. Chief Justice Maureen O’Connor wrote a very heated dissent, for herself and Justices Judy Lanzinger and Judi French. They would find the statements nontestimonial and thus admissible for use against Clark.

The Testimonial/Nontestimonial Distinction

This jurisprudence has evolved since the seminal case of Crawford v. Washington, 541 U.S. 36 (2004).  In Crawford, the U.S. Supreme Court rejected the reliability rationale of Ohio v. Roberts.  Where testimonial evidence is at issue, the Sixth Amendment demands that if the declarant is unavailable, the defendant must be given a prior opportunity for cross examination.  But Crawford did not define “testimonial,” leaving that for future development.

In 2006, on the same day, the U.S. Supreme Court decided Davis v. Washington, 547 U.S. 813 (2006) and Hammon v. Indiana, 547 U.S. 813 (2006), a pair of domestic violence cases to further flesh out the distinction between testimonial and nontestimonial statements by formulating what has become known as the primary-purpose test. Statements are non-testimonial when their primary purpose is to help police respond to an ongoing emergency. By contrast, statements are testimonial when their primary purpose is to gather evidence to help prove a crime. Since then, the U.S. Supreme Court has continued to develop this area of case law.  In Michigan v. Bryant,  562 U.S. ___ (2011) the Court greatly expanded the concept of an ongoing emergency in allowing the admission of a statement of a dying man at the scene identifying his killer in response to police questioning, noting that context very much matters.  Key factors the Court found highly important were the victim’s urgent medical condition, the threat to the public of a shooter still at large, and the lack of formality of the police questioning.  Taken together, the primary purpose of the questioning was to meet an ongoing emergency. Thus the statement was nontestimonial, and admissible.

In making this testimonial/nontestimonial distinction, three factors are now key—the intent of the declarant (which is the most significant, and the starting point,) the intent of the questioner, and the circumstances of the questioning.

Back to Ohio—the Mandatory Abuse Reporting  Statute

In Ohio, as in most states, teachers are among those mandatorily required to report suspected cases of child abuse.  To the Clark majority, the primary purpose test, which applies to statements made to law enforcement agents, applies here because teachers become agents of the police because of this mandatory reporting obligation.  The primary purpose here was to help prosecute Clark.

To the dissent, teachers do not become agents of law enforcement just because of the mandatory duty to report.  The objective witness test, not the primary purpose test should apply here, where questioning does not involve law enforcement. Looking at the situation objectively, the purpose of this questioning was to protect L.P. Thus the statements were nontestimonial and admissible.

Pertinent Ohio Evidence Rules

Evid.R. 601(A)

Presumes children under ten who “appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly” are incompetent to testify.

Evid. R. 807

Provides special hearsay exception for statements of children under twelve in abuse cases. In order to be admissible, four requirements must be met: 1) the statement must be trustworthy, (2) the child’s testimony must be unavailable, (3) independent proof of the act must exist, and (4) the proponent must notify all other parties ten days before trial that such a statement will be offered in evidence.

State v. Clark Case Syllabus,

  1. At a minimum, when questioning a child about suspected abuse in furtherance of a duty pursuant to R.C. 2151.421, a teacher acts in a dual capacity as both an instructor and as an agent of the state for law-enforcement purposes.
  2. Statements elicited from a child by a teacher in the absence of an ongoing emergency and for the primary purpose of gathering information of past criminal conduct and identifying the alleged perpetrator of suspected child abuse are testimonial in nature in accordance with Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), and State v. Siler 2007-Ohio, 116 Ohio St.3d 39, 2007-Ohio-5637, 876 N.E.2d 534. (Siler also involved statements made by a three-year-old, to the police, implicating his father in the murder of his mother.)

At the U.S. Supreme Court

Attorneys arguing

Matthew E. Meyer, Assistant Cuyahoga County Prosecutor, for the State of Ohio

Ilana Eisnestein, Assistant to the Solicitor General, as amicus for the State of Ohio

Jeffrey L. Fisher, Professor of Law at Stanford University and Co-Director of the school’s Supreme Court Clinic, for Darius Clark

Ohio’s Argument

The teachers here were strictly private parties. The Ohio Supreme Court erred when it held they were transformed into law enforcement agents for purposes of Confrontation Clause analysis strictly because of their mandatory duty to report abuse. Teachers only have a duty to report, not to investigate, and their duty does not even require them to call the police—calling a social worker is sufficient.

The Confrontation Clause does not apply to statements meant solely for private parties without any police direction. Statements to private parties fall outside the clause, and that was the case here. The rules of evidence should govern these kinds of statements.

Statements made by a child found too young to testify should clearly be found nontestimonial. The fact that the child was found incompetent to testify should mean the child’s statements were not “witness-equivalent” and thus should be deemed nontestimonial.

Even if the primary purpose test is applied, the statements were nontestimonial. L.P. didn’t make the statements to create evidence.  The teachers’ intent was to protect L.P. And the questioning occurred in a roomful of students—scarcely the formality associated with custodial interrogation.

Solicitor General’s Argument in Support of Ohio

The Ohio Supreme Court erred in finding teachers to be agents of law enforcement. They were just doing their regular jobs caring for children.  Teachers aren’t in the business of prosecution or of collecting evidence. The questioning here was informal and spontaneous, not formal or solemn.  The teachers’ obligation here was to call social services, not the police.  The issues in this case should be governed by the hearsay rules, not the Confrontation Clause.

Clark’s Argument

The Supreme Court of Ohio was correct in finding L.P.’s statements to his teachers to be testimonial.  It makes no difference that the questioners were teachers and the accuser a young child. Introduction of L.P.’s statement through the teachers violated Clark’s rights under the Confrontation Clause.

Historically, with the exception of excited utterances, it has long been the case that a child’s statements describing past abuse were inadmissible unless the child testified. Ohio’s special hearsay rule for child witnesses is especially unhelpful—it “dispenses with cross-examination precisely where it is needed most.” Ohio’s special evidence rules on child competency are both unnecessary and totally unfair, and give the state a double advantage. Children must be allowed to give testimony, even if it is outside the courtroom in a therapeutic setting, with  age-appropriate accommodations made, and the defense must be allowed to participate in the process.

What Was on Their Minds

Determining the Intent of Three Year Old

Justices Scalia, Sotomayor, Kagan, Ginsburg and Alito all questioned how on earth a three year old could have intent, as required to apply the primary purpose test. I’ve been wondering that same thing since this decision came out.  “We can all obviously agree that three year olds don’t form any kind of intent to make testimonial statements,” commented Justice Kagan.

Testimonial and Non-Testimonial Statements

What is it about the statement to the teacher that makes it testimonial, asked Justice Sotomayor? Is it the fact that she is a mandatory reporter?

Purpose of this Questioning

Law enforcement or ongoing emergency, asked Justice Sotomayor? Doesn’t deciding the intent of the declarant involve looking at what everyone else is doing?

Can’t a person have both safety and the possibility of criminal prosecution concerns at the same time, asked Justice Alito? How is it realistic to try and determine which purpose is primary? Mirroring the same concern, in a key question, Justice Kennedy asked, “what are we supposed to do if we think 50% of the motivation was to comply with the statute and her duty as a teacher not to send this kind home, and 50% was in order to fulfill the reporting obligation to the police.  Then what do we do?”

A Different Test?

Should there be a different test for people with diminished capacity, Justice Kagan asked? Then, in a key exchange of the day, noting that the primary purpose test doesn’t really fit here, she commented to Professor Fisher:

“It seems to me that the strongest part of your case goes something like this. This is a statement that is going to come in and is going to have great consequence in a trial. It is going to function as the most relevant kind of testimony imaginable, it’s an accusation.  In a case like this, there are two potential parties that could be accused.  Essentially, this is fingering one of them, and it’s being done by a three year old. And the question of whether that’s a particularly reliable way to choose between which of these two potential people did it is like a little bit scary.  And then you’re not being able to question it, you’re not being able to do the things that you normally do.”

Mandatory Duty to Report or Primary Duty to Protect?

When a teacher talks to a student—at least an older one-isn’t the involvement of the police in the back of both of their minds, asked Justice Kagan? Are the police routinely involved when there is any kind of serious injury?

Isn’t protecting a child different from protecting an adult, asked Justice Sotomayor?

In Ohio, does the teacher fulfil her obligation to report simply by telephoning social services, asked Justice Kennedy? Is it a legal requirement in Ohio for social services to report to the police?

Since a three year old has no conception about using the statement in court to prosecute an offender, isn’t the teacher’s concern just the child’s safety, asked Justice Alito? Justice Ginsburg asked almost the same thing, suggesting a teacher’s first thought isn’t prosecution, but protection of the child.  “If you have to decide what is the prime purpose, it seems to me that the well-being of the child has got to be the first thing in the mind of the teacher,” she added later.

Aren’t there states in which all citizens are required to report abuse, asked Justice Kennedy?

The Intersection of Hearsay and Confrontation

Can this statement still be deemed inadmissible under other well-settled hearsay principles, asked Justice Kennedy? Is the Due Process clause implicated as well as the Confrontation Clause?

Was there a hearsay exception involved here, asked Justice Ginsburg?

Isn’t all admissible hearsay a substitute for in-court testimony, asked Justice Alito?

Justice Breyer expressed his concern that the Confrontation Clause would swallow up all the exceptions to the hearsay rule, suggesting the situation was “tailored made for the Due Process Clause,” allowing the individual states to experiment with how best to handle the kinds of issues that have come up in this case.

Incompetency of Child Witnesses in Ohio

If a three year old is incompetent to testify in Ohio in court, why isn’t the statement also incompetent out of court, asked Justice Ginsburg?  How can a substitute be permissible? What good would it do to cross examine a three-year-old? How would cross examination be useful here?

If the child were allowed to testify, could the statement to the teacher also come in, asked Justice Kennedy?

How it Looks From the Bleachers

To Professor Bettman

I won’t even pretend to read these tea leaves.  This jurisprudence is messy, messy, messy.  Several things were evident.  The primary purpose test, with its fundamental emphasis on the intent of the declarant, just doesn’t work well when the declarant is three years old.  And in their reporting role, teachers clearly have mixed purposes-concern with the protection of the children, but also in sending along the information they got for further investigation in deciding whether to prosecute offenders. How to determine which is primary–also a factor in the testimonial/nontestimonial equation, when these intentions are so clearly mixed?

Justice Kagan seemed most sympathetic to the defense argument; Justice Alito, the least, and the most aligned with Chief Justice Maureen O’Connor’s position in the dissent in the Ohio opinion.

The SG suggested one way out–letting the hearsay rules, not the Confrontation Clause, govern the issues here. If the Court does go that route, that clearly favors the state in this case.

Professor Fisher, though, clearly sees Ohio’s Evidence Rule 807 as designed to evade the Confrontation Clause.  He sees a different way out–finding the children competent and letting them testify, under special protective circumstances in which the defense is allowed to participate.

And I was supposed to be there in person to hear the argument, but as she so often has this winter, Mother Nature refused to cooperate, so I must settle for listening to the tapes and reading the transcript. Not nearly as exciting.

Update:

You can now read a transcript of the oral argument here, and this superb analysis of the argument from  Lyle Denniston, on SCOTUSblog  here

As previously reported on the blog, the U.S. Supreme Court granted cert. in the case now captioned Ohio v. Clark, which was an appeal by the state from the merit decision of the Supreme Court of Ohio in State v. Clark, 2013-Ohio-4731.

This is the syllabus of the 4-3 decision in State v.Clark:

  1. At a minimum, when questioning a child about suspected abuse in furtherance of a duty pursuant to R.C. 2151.421 (prof’s note-this is the mandatory abuse reporting statute) a teacher acts in a dual capacity as both an instructor and as an agent of the state for law-enforcement purposes.
  2. Statements elicited from a child by a teacher in the absence of an ongoing emergency and for the primary purpose of gathering information of past criminal conduct and identifying the alleged perpetrator of suspected child abuse are testimonial in nature in accordance with Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), and State v. Siler, 116 Ohio St.3d 39, 2007-Ohio-5637, 876 N.E.2d 534.

Read an analysis of the merit decision in Clark here.

The Clark case has now been set for oral argument on Monday, March 2, 2015.

The two specific questions presented are:

  1. Does an individual’s obligation to report suspected child abuse make that individual an agent of law enforcement for purposes of the Confrontation Clause?
  2. Do a child’s out-of-court statements to a teacher in response to the teacher’s concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause?

Numerous amicus briefs have been filed on behalf of the state.  All can be accessed on the SCOTUS blog here.

Jeffrey L. Fischer, Professor of Law at Stanford University and Co-Director of the school’s Supreme Court Clinic, has been appointed as counsel for Clark.  Ohio Attorney General Mike DeWine’s office will argue for Ohio.  Ohio’s State Solicitor is Eric E. Murphy. The U.S. Solicitor General’s Office has moved to share oral argument time with DeWine’s office.  That motion has not yet been ruled on, but undoubtedly will be granted.

Update: On November 24, 2020, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Update: Read the analysis of the argument here.

On July 21, 2020, the Supreme Court of Ohio will hear oral argument in Andrew Welsh-Huggins v. Office of the Prosecuting Attorney, Jefferson County, Ohio, 2019-1481. At issue in this case is deciding what evidence sufficiently proves an exemption under Ohio’s Public Records Act (PRA). More specifically at issue is whether an attorney’s affidavit is sufficient to prove security camera footage is a security record within the specialized PRA dispute system managed by the Ohio Court of Claims.

Case Background

On August 21, 2017, Judge Joseph Bruzzese was shot outside the Jefferson County Courthouse by Nate Richmond. Both Bruzzese and a probation officer walking nearby defensively returned fire at Richmond, who died at the scene. Bruzzese was seriously injured but recovered.

The entire ordeal was captured by a video surveillance camera affixed to the outside of the Jefferson County Courthouse. On the day of the shooting, Associated Press reporter Andrew Welsh-Huggins (“Welsh-Huggins”) requested a copy of the surveillance video from the Jefferson County Prosecutor’s Office ( “Prosecutor’s Office”) per the Ohio’s Public Records Act. The Prosecutor’s Office promptly denied release of the video. For nine months following the incident, Welsh-Huggins repeatedly requested the video arguing that the shooting of a judge is a topic of great public importance and that the video would verify law enforcement’s conclusion that Richmond had “ambushed” Judge Bruzzese. The Prosecutor’s Office denied each request.

On May 7, 2018, Welsh-Huggins filed a formal complaint in the Ohio Court of Claims pursuant to R.C. 2743.75. Enacted by the Ohio General Assembly in 2016, R.C. 2743.75 created a procedural system designed to resolve PRA disputes economically and expeditiously. The system is overseen by the Ohio Court of Claims which appoints a Special Master in each case to oversee, adjudicate, and ultimately recommend whether a record be deemed public or not. Special Master Jefferey Clark was appointed to oversee this PRA dispute.

Among other things, the Prosecutor’s Office based its refusal to release the video on grounds that it fit within the security record exception to the PRA. Special Master Clark made three requests for the Prosecutor’s Office to provide additional information and evidence during his investigation. The requests resulted in an affidavit filed by Prosecuting Attorney Jane Hanlin that outlined her personal knowledge of the court’s surveillance system and a timeline of events depicted in the shooting video.

Based on the information and evidence presented, Special Master Clark found that the Prosecutor’s Office failed to satisfy its burden of proving any PRA exceptions applied to the video. In declining to find the video to be a security record, Special Master Clark determined the video was not directly used to protect or maintain courthouse security, was not a planning, training, or investigatory document maintained for security purposes, and contained no audio that would create a vulnerability for future emergency responses. Consequently, he recommended the Prosecutor’s Office should release the video to Welsh-Huggins, with the image of any peace officer involved redacted.  

Court of Claims Judge Patrick McGrath adopted the Special Master’s entire recommendation and ordered release of the video. The Prosecutor’s Office objected to this conclusion, but those objections were overruled. The Prosecutor’s Office then appealed to the Seventh District Court of Appeals and the Court of Claims granted a stay enjoining release of the video until the matter was decided on appeal.

The Appeal

Joined by Judges Gene Donofrio and David D’Apolito, Judge Carol Ann Robb authored a unanimous opinion overruling the Court of Claims’ decision. The Seventh District Court of Appeals found the Prosecutor’s Office satisfied its burden in proving the video fell within the security record exception to the PRA. Because the PRA’s security record exception applies, the Prosecutor’s Office is no longer required to release the video to Welsh-Huggins.  

Security records are exempted from release under the PRA if evidence supports such a conclusion; bare allegations do not suffice. Here, the appeals court found that while Prosecuting Attorney Hanlin’s affidavit is based on hearsay and is not from a technology or security professional, Welsh-Huggins did not object to the affidavit during the Special Master’s investigation. Therefore, the affidavit is a sufficient basis to conclude the video is a security record.

First, the affidavit asserts that if the video were released to the public, it would expose security blind spots, zoom, rotation, and isolation capacities of the camera, along with the technical vulnerabilities of the entire courthouse’s security system. Second, the affidavit amply noted that the video does not just capture the shooting, but also the response efforts and protocol of law enforcement and emergency personnel. The statutory language of R.C. 149.433 explicitly exempts records which show such critical security information. While other cases have relied on more extensive and specialized evidence, the affidavit in this case was sufficient.

Welsh-Huggins appealed.

Votes to Accept the Case

Yes: Justices Donnelly, Fischer, French, Kennedy, and Stewart.

No: Chief Justice O’Connor, Justice DeWine.

Welsh-Huggins’ Proposition of Law Accepted for Review

A public office must produce competent, admissible evidence to support an assertion of an exception to the Public Records Act.

Key Statutes and Precedent

R.C. 149.43 (Ohio Public Records Act (PRA)) (“Public record” means records kept by any public office, including, but not limited to, state, county, city, village, township, and school district units.)

R.C. 149.433(A)(1) (Exempting security and infrastructure records from release under the PRA) (“Security record” means any of the following: (1) Any record that contains information directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage; (2) Any record assembled, prepared, or maintained by a public office or public body to prevent, mitigate, or respond to acts of terrorism.)

R.C. 2743.75 (Jurisdiction over claims alleging denial of access to public records) (codifies a system to, “provide for an expeditious and economical procedure that attempts to resolve disputes alleging a denial of access to public records” in violation of Ohio’s Public Records Act. The Ohio Court of Claims is the sole and exclusive authority to adjudicate and resolve PRA complaints.)

Evid. R. 103(A)(1) ( Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected; and in case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection.)

Amie v. General Motors Corp., 69 Ohio App.2d 11 (1980) (“a party waives objection and waives any challenge to hearsay testimony by failing to object with reasonable promptness in the trial court.”)

State ex rel. Plunderbund Media v. Born, 2014-Ohio-3679 (Department of Public Safety records concerning threats against the Governor are security records that are exempted from release under the PRA. Whenever the record is used for protecting and maintaining security or maintaining the secure functioning of an office, it is considered a security record and does not need to be released.)  

State ex rel. Ohio Republican Party v. Fitzgerald, 2015-Ohio-5056 (When there are verified threats against a public official, records showing ingress, egress, and timing such as video surveillance of private building entrances are security records for purposes of protecting and maintaining the security of the public office.)

State ex rel Rogers v. Department of Rehabilitation and Correction, 2018-Ohio-5111 (Refusing to extend security-record exemption to surveillance footage depicting use-of-force incident in a prison. To successfully argue a record is a security record, there needs to be information alleging the video is directly used to ensure safety. This information must be supported by evidence, not merely a bare assertion. Generalized claims that the record protects a security interest is insufficient.)

Welsh-Huggins’ Argument

The Seventh District’s decision undermines and complicates the otherwise clear PRA dispute procedures enacted by the General Assembly in R.C. 2743.75.

The Seventh District acknowledged Prosecuting Attorney Hanlin’s affidavit is hearsay and lacks the assessment of a courthouse security professional. However, even in light of these deficiencies, the Seventh District accepted the affidavit solely on the basis that Welsh-Huggins failed to object during the Special Master’s investigation. Such a holding explicitly contradicts the rules and procedures outlined in R.C. 2743.75(E)(2) which forbids parties from making traditional motions such as an objection or motion to leave.

R.C. 2743.75 was purposed to operate as a more expeditious and efficient system for resolving disputes under the PRA. The system’s particularized rules and procedures are designed to operate entirely separately from a traditional mandamus action or civil bench trial. The Seventh District’s requirement that Welsh-Huggins and every future public records requestor object and file motion after motion to any piece of dubious evidence will prolong PRA disputes and make them more expensive. R.C. 2743.75 explicitly requires the Special Master to begin, conduct, and conclude an investigation in no more than 7 business days. Without any objections or procedural hurdles, this PRA dispute took 139 days.

Here, the Special Master requested additional information three times from the Prosecutor’s Office and the evidence he ultimately received was insufficient. Because the evidence was lacking, and in reliance on Ohio Supreme Court precedent, the Special Master properly concluded that the Prosecutor’s Office failed to meet its burden in demonstrating the video is a security record. As trier of fact, the Special Master’s assessment of the quality of evidence ought to be afforded deference. By ignoring the Special Master’s assessment and simply accepting the affidavit because Welsh-Huggins did not object, the Seventh District ignored the instruction of Ohio case law and eliminated the burden of proof required of the Prosecutor’s Office. 

If left to stand, the Seventh District’s decision will have far-ranging and harmful implications. Injecting trial motions into the R.C. 2743.75 system will create an unfair advantage for public offices who are well-equipped with government attorneys familiar with PRA litigation. Prejudice against public record requestors will arise if Special Masters are not allowed to exercise their discretion in weighing the credibility of evidence. By validating an affidavit based on hearsay and lacking in subject-matter expertise, the Seventh District forces Special Masters to simply accept any evidence in favor of a PRA exemption at face value unless unpermitted objections are made. The Seventh District’s decision ignores the plain statutory language and legislative intent of R.C. 2743.75 and should accordingly be reversed.

State’s Argument

As an initial matter, this case should be dismissed as improvidently allowed as it raises nothing more than standard hearsay and sufficiency arguments.

Welsh-Huggins’ argument on appeal is entirely based on one sentence in the Seventh District’s decision discussing hearsay evidence and ignores the remaining 17 pages of the reasoned opinion which analyzes why the video is a security record. First, the affidavit at issue is not even required to decide the video is a security record. On appeal, the video itself was submitted as evidence and the Seventh District relied on its first-hand observation of the video, not the affidavit, to properly conclude the video disclosed important security vulnerabilities and security protocol.

Even if the affidavit is required, it is sufficiently detailed and is not based on hearsay. While Prosecuting Attorney Hanlin’s affidavit does include information provided by the courthouse security specialist, the affidavit is merely a roadmap of what one would see when watching the video. The affidavit is based on Prosecuting Attorney Hanlin’s own personal knowledge as someone who viewed the video and responded to the shooting scene.

Further, the affidavit alone is detailed enough to prove that the video fits squarely within the security record exception. The affidavit merely states that the video depicts: (1) the highest judicial official in Jefferson County under attack; (2) specialized law enforcement and emergency response procedures; (3) technical vulnerabilities of the courthouse security system; and (4) security blind spots, panorama views, and other detailed safety information. The affidavit standing alone proves the video is a textbook definition of a security record as recognized both in R.C. 149.433 and Plunderbund.

Even if the affidavit is considered hearsay, Welsh-Huggins already waived his right to a hearsay challenge. While R.C. 2743.75 prohibits traditional trial motions, Ohio case law and Evid. R. 103 required that Welsh-Huggins either promptly object to the affidavit on hearsay grounds or else forfeit the argument. Here, the Special Master invited Welsh-Huggins to submit reply briefs against the Prosecutor’s Office evidence three times. Indeed, Welsh-Huggins replied all three times, but never once did he argue the affidavit was grounded in hearsay. In fact, Welsh-Huggins’ merit brief before the Supreme Court is the first time he has raised a hearsay argument. This faulty argument is Welsh-Huggins’ complete argument and is again based on one word of the Seventh District’s entire opinion.

While the General Assembly undoubtably crafted R.C. 2745.75 to expedite PRA disputes, the R.C. 2745.75 system Welsh-Huggins argues in favor of runs the risk of depriving public record custodians procedural due process. Here, the Special Master refused to hear the Prosecutor Offices’ witnesses, refused to hold a fair trial, and in not requiring Welsh-Huggins to submit any evidence, bypassed the requestor’s initial burden of proving a record is a public record. Welsh-Huggins argues for a system where a Special Master can ignore evidentiary rules, deny due process, eviscerate a requestor’s burden of proof, conduct a hasty investigation, and then demand full deference to its decision if the case is appealed. The Special Master here conducted such an unfair, apathetic investigation that his final recommendations should be afforded no deference at all. Speed is not the main goal of the PRA and the Court should not interpret R.C. 2745.75 to result in the improper dissemination of exempted records.

Finally, Welsh-Huggins advocates for a system that risks the security and safety of Ohio’s public officials. In a time where attacks on public officials are commonplace, protecting the privacy of security systems is imperative. Here, Jefferson County officials have received death threats in connection with the prosecution of local gang members and the shooter who ambushed Judge Bruzzese has known gang affiliations. Release of the video will invite future copycat attackers to watch the footage, take advantage of security vulnerabilities, plan against emergency response procedures, and better execute an act of terror and violence. Welsh-Huggins’ arguments undermine the precise reason for creating a security record exception and the PRA should not be misused to mandate disclosure of the video.

Amicus in Support of Welsh-Huggins

Ohio Coalition of Open Government et al

Amici are the Ohio Coalition for Open Government, Ohio Association of Broadcasters, Reporters Committee for Freedom of the Press, the E.W. Scripps Company, Gannett Co., the International Documentary Association, the Investigative Reporting Workshop, the Media Institute, the Association of Magazine Media, the National Freedom of Information Coalition, News Leaders Association, Society of Environmental Journalists, and Society of Professional Journalists. Amici have unified interests in the broad release of public records to best inform the public and enforcing the rights and freedoms of a free press.

Amici argue first that the Seventh District’s de novo review is improper, and the more deferential abuse of discretion standard should have been applied because Special Masters have unique expertise in deciding PRA disputes and Special Masters operate in the same way magistrates do for trial courts. Because the Special Master here did not act unreasonably, arbitrarily, or unconscionably, the abuse of discretion standard is satisfied, and the Court of Claims decision should be reinstated. Second, the Seventh District blatantly contradicted the definition of a security record as recognized in Rogers, reversing based solely on hearsay in a conclusory affidavit. If the Seventh District’s decision is upheld, Ohio’s long-standing tradition of broadly interpreting the PRA will be damaged and Ohio will be an outlier among other jurisdictions that define similar security camera videos as public records belonging to the people.

Amicus in Support of State

Ohio Prosecuting Attorneys Association (OPAA)

OPAA is a private, non-profit membership organization founded to support 88 Ohio county prosecutors pursue justice and promote public safety. First, Plunderbund was decided in reliance upon affidavits similar to those used in this case. The Plunderbund affidavits were instrumental in defining what it means for a record to be “directly used” to protect a public office and the video here depicts similar information beyond just the attack that could undermine security protocol and safety.

Second, Welsh-Huggins is not asking for clarity or a new pronouncement of a legal standard; what constitutes a security record has been clearly outlined by Rogers and Plunderbund. Welsh-Huggins is not pursuing this appeal for the public benefit, but rather because he is unhappy with the Seventh District’s outcome. Welsh-Huggins’ appeal should be dismissed as improvidently granted and there is no need for the Supreme Court to confuse settled law as interpreted by Ohio’s lower courts.

OPAA Proposed Proposition of Law 1

The “record” at issue is a security record, and thus prohibited from mandatory disclosure under the Ohio Public Records Act.

OPAA Proposed Proposition of Law 2

The Seventh District’s Decision makes clear that this Court has already sufficiently established the law on “security records” and, therefore, no further pronouncements are necessary to guide Ohio courts.

Student Contributor: Brandon Bryer

Update: On May 5, 2020, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

“So what aspect at the time of the plea—not sentencing—was there substantial compliance?”

Justice Stewart, to the prosecutor

“What are the words the trial court has to say to be ok?”

Justice DeWine to defense counsel

On February 20, 2019, the Supreme Court of Ohio heard oral argument in State of Ohio v. Brad J. Dangler, 2017-1703. At issue is whether a trial court must inform a defendant of all penalties associated with a sex offender classification to comply with Crim.R. 11’s requirement that a defendant enter a plea knowingly and voluntarily. The case was accepted on conflict certification.

Case Background

As part of a negotiated plea, Brad Dangler pled no contest to a sexual battery charge.  At the plea hearing, the trial court told Dangler that he would have to register as a Tier III sex offender for life. Dangler acknowledged that he understood the explanation. At the sentencing hearing, the judge informed Dangler that this registration required specific reporting obligations, and that these obligations would be provided to him in writing at a later time. But at no time did the judge inform Dangler of the community notification requirements and the residential restrictions. Dangler was sentenced to three years in prison and five years of post-release control.

Dangler appealed to the Sixth District Court of Appeals on the grounds that his plea was not voluntarily and knowingly made because the trial court failed to comply with Crim.R. 11 by not informing him of the punitive consequences of his plea—specifically, that the trial court never informed him of the community notification requirements, residence restrictions, and in-person verification requirements of Tier III registered sex offenders.

In a unanimous decision written by Judge Mark L. Pietrykowski, joined by Judges Thomas Osowik and Christine Mayle, the Sixth District reversed the trial court. The Appeals Court held that the trial court failed to substantially comply with Crim. R. 11’s requirement that Dangler be informed of the punitive consequences of his plea.

The Supreme Court then accepted the case on conflict certification.

Certified Question

“During a plea proceeding, does the failure of the sentencing court to inform a defendant of all the penalties associated with a sex offender classification imposed by R.C. Chapter 2950 constitute a complete failure to comply with Crim.R. 11 and render the plea void without the need to show prejudice resulted?”

Certified Conflict Cases

 State v. Creed, 2012-Ohio-2627 (8th Dist.) (The trial court substantially complied with Crim.R. 11 despite failing to notify the defendant that by pleading guilty he could not live within 1,000 feet of a school.)

State v. Young, 2014-Ohio-2213 (2nd Dist.) (The trial court’s reference to the correct sex-offender tier level and the need for registration constituted partial compliance, and because no prejudice was shown, the plea was valid.)

Read the oral argument preview here.

Key Statutes and Precedent

R.C. 2950 (Ohio’s sex offender classifications and registration requirements, including duty to register, residency restrictions, and geographic notifications.)

Crim.R. 11 (A court shall not accept a guilty or no contest plea without addressing the defendant personally and determining that the plea is knowingly, intelligently, and voluntarily made.)

State v. Nero, 56 Ohio St.3d 106 (1990) (“Literal compliance with Crim. R. 11 is certainly the preferred practice, but the fact that the trial judge did not do so does not require vacation of the defendant’s guilty plea if the reviewing court determines that there was substantial compliance.”)

State v. Veney, 2008-Ohio-5200 (“Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving.”)

State v. Clark, 2008-Ohio-3748 (“for a plea to be knowingly, intelligently, and voluntarily made, the trial judge must substantially comply with Crim.R. 11 by informing the defendant about the applicability of postrelease control and parole to his or her sentence.”)

State v. Williams, 2011-Ohio-3374 (The registration requirements of R.C. 2950 are punitive, rather than remedial, measures.)

State v. Barker, 2011-Ohio-4130 (An alleged ambiguity during a Crim.R. 11 oral plea colloquy may be clarified by reference to other portions of the record, including the written plea. Syllabus paragraph 2.)

State v. Young, 2014-Ohio-2213 (2nd Dist.) (“. . . a trial court need not elaborate on every specific registration requirement before accepting a plea.”)

State v. Clark, 2008-Ohio-3748 (Due process requires that a defendant’s plea be made knowingly, intelligently, and voluntarily; otherwise, the defendant’s plea is invalid.)

State v. Sarkozy, 2008-Ohio-509 (Before accepting a guilty plea, failure of the trial court to inform a defendant of the mandatory term of postrelease control, which was part of the maximum penalty, does not meet the requirements of Crim.R. 11(C)(2)(a) and prejudice need not be shown.)

State v. Bishop, Slip Opinion No. 2018-Ohio-5132.  (Crim.R. 11 requires trial courts to advise defendants with prior felonies, during plea hearings in new felony cases, of the trial court’s ability to impose consecutive prison sentences for violations of post-release control.)

At Oral Argument

Arguing Counsel

David T. Harold, Williams County Special Prosecutor, Wood County Prosecutor’s Office, for Appellant State of Ohio

Karin L. Coble, Law Office of Karin L. Coble, Toledo, for Appellee Brad J. Dangler

State’s Argument

There are two issues in this case-what constitutes a complete failure to comply with Crim.R. 11 and whether or not prejudice must be shown at the time of a plea. In this case there was substantial compliance with the Rule and Mr. Dangler failed to show prejudice. The failure to mention one facet of sex offender classification does not equate to a complete failure at the time of plea. The Sixth District has taken the standard of whether or not things must be mentioned at sentencing and moved it to whether or not it has to be mentioned at the time of the plea.

Mr. Dangler was not surprised at the time of his plea or at the time of his sentencing that he was going to be a sexual offender, because he was apprised in his very first appearance that he was going to be classified as a Tier III sexual offender if found guilty. This was reaffirmed at various times in the proceedings, including at plea. And again, at the sentencing hearing, Mr. Dangler was read verbatim from the form that more fully informs the offender of the requirements of his classification, and he did not object or protest that he had not been properly informed. And while the state concedes that Mr. Dangler was not informed of the community notification requirements at the time of plea, that does not constitute a complete failure to comply with the Rule. What is required at the time of plea is to inform the offender of the Tier the offender will be in, and how long the registration will be.  In this case, that would be a Tier III offender, with lifetime registration. At that point the rule is substantially complied with, and it was in this case. Additionally, Mr. Dangler was at all times represented by counsel, who must share some of the responsibility for informing the offender of the particulars involved in sexual offender classification.

The Sixth District is requiring what is in effect a strict compliance standard for a substantial compliance issue. That court is saying that one small mistake when something is not mentioned at plea creates a complete failure. At a minimum, what needs to be said at the time of plea is you are a Tier III sexual offender which will include registration for life. The state asks this Court to harmonize the Sixth District with the other districts within the state that require a showing of prejudice when one or two factors are not mentioned at the time of plea in order to find that substantial compliance has not occurred.

Dangler’s Argument

This Court has explicitly held that Chapter 2950 is punitive. The rule from the Sixth District logically follows from all of this Court’s precedents starting with Williams, and most recently, with Bishop. But unlike Bishop, trial judges in this situation do not have to track down additional information from a separate case. Here, because the consequences are automatic upon acceptance of a plea, the trial judge will already have all of that information at hand.

The Sixth District has articulated a very clear test for trial courts that encapsulates the core punishments that derive from a tier classification. The core punishments are address verification, community notification, and the residential restrictions. And by articulating all of that information at the time of the plea, everybody in court can be on the same page. The Sixth District has created a form, which may be somewhat complicated, but no more so than what is required for judges at a DUI sentencing.

This case presents this Court with an opportunity to give appellate courts very clear guidance about what constitutes substantial compliance by trial courts in this context. Following the Sixth District’s rule, at the time of plea, the trial judge must tell the defendant, and ask if he understands, that upon acceptance of the plea, he will automatically be classified as a Tier III sex offender, subject to registration for life, which includes address verification every 90 days for life, and which includes community notification and residential restrictions, and that failure to abide by these restrictions will result in additional penalties. This is both necessary and sufficient to constitute substantial compliance.

Once there is substantial compliance, it must be determined whether there is partial compliance or a complete failure to comply with the rule. As reaffirmed in Bishop, partial compliance means that a punishment is mentioned, but not explained.  If there is partial compliance, then the burden is on the defendant to show he was prejudiced by that lack of an explanation, but at least it was mentioned to him.

According to this court’s precedents, what constitutes compliance is mentioning the requirements. Not having to go into detail, but simply mentioning that the requirement exists and that there will be additional penalties if not met puts the defendant on notice so he can then inquire either of the court or of counsel.  These  requirements could also be put in a form that would be available to trial judges at the time of the plea rather than at the time of the sentencing.

What Was On Their Minds

What Suffices for Substantial Compliance

Is the state really just saying there was substantial compliance here and the defendant didn’t show prejudice, asked Justice Stewart? (answer: yes.)

Are the residency restrictions and the community notification requirements collateral, asked Chief Justice O’Connor? Aren’t they essential parts of a Tier III classification? Is there any variation where some Tier III sexual offenders do not have to register and do not have to have community notification? Must the advisement include the consequences of failure to comply? What exactly should the test be? Aren’t the specifics necessary at the time of the plea? Including the fact that failure to comply with this will result in criminal charges?

Why isn’t the analysis here that Mr. Dangler was told he was a Tier III sex offender, and now he has to show prejudice, asked Justice DeWine in a long exchange with Ms. Coble. What exactly must the trial judge say to substantially comply? Must the judge discuss the restrictions near a school? Or a child care facility? And what exactly should be said about the residency requirements? Just that there are some or must the judge list the places they can’t live in? List everything in the statute? If it is the punishments that must be explained, would the judge need to read the defendant the entire statute? Whether there is partial compliance or a complete failure, isn’t that the question of whether there is substantial compliance? Either you substantially comply or you completely fail to comply? It seems to me that saying “Tier III sex offender,” mentions the so-called punishment, and that is the compliance required. After that, the defense is just debating the level of detail it wants the court to explain.  I’m just trying to get everything that needs to be in there because there is a big list of things, DeWine said.  Isn’t the reason the form’s at sentencing because that’s when the legislature said it should be done?

Justice Fischer asked a series of hypotheticals in another lengthy exchange with Ms. Coble.  Assume two statements by the trial judge, he said. One is that you will be found to be a Tier III and you will have residency requirements. The other is you’ll be a Tier III, you’ll have residency requirements, and can’t live within 1000 feet of a school or child care center—go further in depth.  Is either substantial compliance? No, said Ms. Coble, for failure to advise the defendant that if he failed to comply he can be charged with a new felony. What about the judge telling the defendant that he will be found to be a Tier III and if he violate any of those provisions, there are punishment consequences, including possibly jail and fines. Is that sufficient? (still no, said Ms. Coble.)

What Was Defendant Told by the Court

Did the defendant know what a Tier III offender was, asked Chief Justice O’Connor? How?

Was there a point at which the court specifically advised the defendant of the residency restrictions and the community notification, asked Justice French? Are they on a form somewhere? A booklet? How would he be advised of those specific requirements? (The prosecutor conceded Dangler was not informed of the community notification requirements).

Getting back to the plea, the Criminal Rule 11 requirements are inherent upon the judge, noted Justice Stewart. Counsel has some responsibility, but the Criminal Rule 11 requirements are a must so that the judge knows the plea is being made knowingly, intelligently and voluntarily made.  So what aspect at the time of the plea—not sentencing—was there substantial compliance? Doesn’t Rule 11 require that all the penalties inherent in taking a plea be told to the defendant? How does someone knowingly decide to enter into a plea when told he has to register as a Tier III sexual offender? Aren’t the defendants required to know what all of that entails? Living restrictions, registration restrictions, the timeliness of them, what can happen if you don’t register—just by saying Tier III, is the defendant supposed to know all that?

Setting aside the idea of whether the court in this particular case substantially complied, would the state agree that it would be advisable for this Court to guide the trial courts of this state that it would be the best practice at every plea colloquy to have the form signed rather than at sentencing, and that way defense counsel can go over every single detail about the sexual registration requirement, have the defendant sign it, have counsel sign it,  and that should be done at the plea hearing, rather than at sentencing, asked Justice Donnelly? Later, he asked if the Court wasn’t entitled to presume that Mr. Dangler had competent counsel who went over everything in detail before Mr. Dangler entered his plea.

How It Looks From The Bleachers

To Professor Emerita Bettman

First off, compliments to both counsel for an extremely well-argued case.  I’d place Ms. Coble in particular in the top tier of oralists the blog has previewed. And Mr. Harold had a very nice, sincere manner, particularly when he admitted the trial court had failed to inform Dangler about the community notification requirement.

I’m with Ms. Coble here. I think at the plea hearing, telling a defendant he is a Tier III offender doesn’t mean the defendant understands what that means, as the Chief suggested, nor should the trial judge have to inform the defendant of every provision in the statute, as Justice DeWine seemed to be suggesting if the Sixth District is affirmed. I think Ms. Coble’s answer is just fine—the defendant needs to be informed by the trial judge of the punitive consequences of a Tier III classification, namely address verification, community notification, and the residential restrictions, and that there will be additional punishment if these requirements are not met. So what if this puts more of a burden on the trial court?  That’s part of being a judge, and cannot be replaced by defense counsel’s duties to a client.  As the Chief suggested in one of her questions, just informing a defendant that he is a Tier III offender doesn’t mean the defendant understands what that means. And the punitive consequences that are attached to that classification are so draconian, what’s the harm in spending a little more time spelling out exactly what that means, at the plea hearing, to make sure that plea is knowingly made? It would seem that is the time it most matters.

Whether Dangler has a majority for his position is hard to say, because this one may be close, but I think the Chief and Justices Stewart, Donnelly, and French will go with Dangler’s position. Justices DeWine and Fischer seemed convinced there was substantial compliance and no prejudice here.

To Student Contributor Carson Miller

This is a close call. Chief Justice O’Connor latched onto Ms. Coble’s argument that the main issue in this case is defendants’ knowledge of the potential penal consequences of violating their sex offender requirements, rather than exact specificity of what the sex-offender registration requirements actually are. Both Justices Stewart and French questioned the state on similar grounds. I think Dangler has these three votes.

On the other side, Justices Fischer and DeWine emphasized the burden placed on trial courts to determine how they might substantially comply with Crim.R. 11; Justice DeWine asked if judges would be required to read R.C. 2950 to defendants before they enter a plea.

To what degree should trial courts rely on counsel to explain to their clients the consequences of accepting sex-offender status? Justice Donnelly asked both sides about the role of defense counsel in putting defendants on notice, and whether courts should ensure that defense counsel have done this. I think that Justice Donnelly’s vote will decide the case.

I think Dangler will win, with Chief Justice O’Connor, Justice French, Justice Stewart, and Justice Donnelly forming the majority. I think that Justice Donnelly will be swayed by the opportunity to provide trial courts with clearer guidance as to what exactly courts need to ensure defendants are aware of when making a plea. However, if Justice Donnelly determines that this burden better falls on defense counsel, the state could very well win this case.

Update: Read about the disposition of this case here

“So are you suggesting that we should interpret the statute to indicate that the trial court must always hold a hearing on the ability to pay costs, or only if it’s requested or depends on the facts of the case?”

Justice DeGenaro, to counsel for the defendant

“You want us to write what the statute says? Why would we do that? The legislature has already written it.”

Justice O’Donnell, to the assistant county prosecutor

On April 24, 2018, the Supreme Court of Ohio heard oral argument in the case of State of Ohio v. James L. Dunson, 2017-0186. At issue in this case is whether, in a post-conviction motion to waive, suspend, or modify court costs after they have been imposed, a trial judge must consider an indigent defendant’s present or future ability to pay in assessing such costs.

Case Background

On March 15, 2013, James Dunson was convicted of two counts of murder and a number of lesser offenses. After merging various offenses and merging the two murder counts, Dunson was sentenced to fifteen years to life for murder, plus three years on a firearms specification. After his conviction, Dunson was also ordered to pay restitution in the amount of $3869.10 and court costs in the amount of $6,199.10. No fines were imposed. Dunson appealed his conviction, which was upheld.

On December 28, 2015, Dunson filed a post-conviction motion to vacate or stay court costs, fines, mandatory fines and/or restitution. Dunson filed an affidavit of indigency along with the motion, which included a proposed payment plan. The state filed no reply. The trial court found that there was no evidence of Dunson’s present or future inability to pay costs, and denied the motion without a hearing. Dunson appealed.

In a split decision written by Judge Mike Fain and joined by Judge Jeffery E. Froelich, the Second District Court of Appeals held, after ordering additional briefing, that the trial court had erred in failing to consider Duncan’s indigency and ability to pay the court costs and in failing to determine whether garnishment of his prison account was prohibited by any exemption statutes. Judge Michael T. Hall dissented over the finding as to court costs.

Read the oral argument preview of the case here.

Key Statutes and Precedent

R.C. 2947.23 (costs of prosecution shall be assessed against the defendant in all criminal cases; court retains jurisdiction to waive, suspend, or modify the payment of these costs, at the time of sentencing or thereafter.)

R.C. 2329.66 (Setting forth list of exemptions from garnishment to satisfy a judgment or order.)

R.C. 2949.14 (provides for collection of court costs from non-indigent felons.)

Ohio Adm. Code 5120-5-03 (Court order for payment of funds from inmate’s account.)

Sixth Amendment (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed…and to have the assistance of counsel for his defense.”)

Bearden v. Georgia, 461 U.S. 660 (1983) (“This Court has long been sensitive to the treatment of indigents in our criminal justice system.”)

State ex rel. Pless v. McMonagle, 139 Ohio App.3d 503 (8th Dist. 2000) (“A declaration of indigency for purposes of a criminal proceeding, cannot be used to avoid the collection of court-imposed costs.”)

State v. White, 2004-Ohio-5989 (A trial court may assess court costs against an indigent defendant convicted of a felony as part of the sentence. (Syllabus Paragraph 1) Waiver of the costs is permitted but not required if the defendant is indigent.)

State v. Threatt, 2006-Ohio-905 (Court costs imposed at sentencing “are not punishment, but are more akin to a civil judgment for money.”)

State v. Clevenger, 2007-Ohio-4006 (“R.C. 2947.23 requires a trial court to assess costs against all criminal defendants, and to do so even if the defendant is indigent.”)

State. v. Fuller, 2013-Ohio-3274 (2nd Dist.)(“A trial court has no duty to waive court costs; it has discretion whether to do so, and R.C. 2949.092 does not provide standards for the exercise of that discretion.”)

State v. Copeland, 2016-Ohio-7797 (2nd Dist.) (“Although a trial court need not consider whether a defendant has a present or future ability to pay court costs when court costs are assessed, the trial court should consider the defendant’s ability to pay when a defendant subsequently moves for a waiver, modification, or stay of the payment of court costs. The collection provisions of the Ohio Administrative Code, while perhaps relevant, are not dispositive.”)

At Oral Argument

Arguing Counsel

Meagan D. Woodall, Assistant County Prosecutor, Montgomery County, for Appellant, State of Ohio

Patrick T. Clark, Assistant State Public Defender, Columbus, for Appellee James Dunson

State’s Argument

The appeals court erred when it held that trial courts must consider present and future ability to pay and whether exemptions from civil judgments apply to a defendant when assessing a post-conviction motion to suspend, vacate or modify court costs. Trial courts may, but  are not required, to do so. Indigence is a standard that has to be applied, not present and future ability to pay. Had the legislature intended for present and future ability to pay to be considered, it would have expressly said so, so as it did in several other statutes.

Pursuant to R.C. 2947.23, a trial court has the ability to modify or waive court costs at any time after sentencing, but the statute makes no mention of considering present and future ability to pay costs. The court should apply the plain language of the statute, not insert or delete words from it.

Based on the affidavit of indigency that Mr. Dunson submitted, the trial court found that there was no evidence that Mr. Dunson would be unable to pay now or in the future. So in this particular case, the trial court did make this finding, even though there is no explicit requirement that the court do so. Even if the court finds that the defendant is indigent, the court is still under no obligation to waive court costs. That is simply permissive.

While it is the state’s position that Mr. Dunson never raised a constitutional argument below, thus waiving that issue, this court has already determined, in State v. White, that the right to a jury trial was not infringed because of a mandatory requirement to pay court costs.

There are several ways court costs can be collected from indigent defendants including, as in this case, garnishment from an inmate’s prison account. There is no statutory authority for a trial court to have a hearing on this. There simply was no evidence before the court that any money was being taken out of Mr. Dunson’s account. There are mechanisms in place through the Ohio Department of Rehabilitation and Correction for an inmate to submit and prove the right to any exemptions, and an inmate grievance procedure and writs of mandamus or prohibition to challenge any alleged wrongful takings. The exemption/garnishment statute should be dealt with by ODRC.

What the trial court did in this case was apply the statute as written, and the court of appeals was wrong finding the court abused its discretion in doing so.

Dunson’s Argument

The simple question before the court today is whether the trial court needed to consider Mr. Dunson’s current and future ability to pay when ruling on a motion to waive, modify, or suspend court costs. The trial court did not properly do so in this case. This court should hold that trial courts must conduct that analysis.

One interpretation that can be drawn from the court’s judgment entry in this case is that the court ignored and did not consider Mr. Dunson’s inability to pay, as the appeals court correctly determined. The appellate court’s affirmative answer to the question of whether trial courts must consider current and future ability to pay connects the plain language of R.C. 2947.23 to the intention of the legislature. But even if this court concludes that the trial court did consider the defendant’s present and future ability to pay the court costs, Mr. Dunson could still properly and separately argue to the appeals court that such a finding was an abuse of discretion.

While the defense agrees that the constitutional issue is not directly before the court, as a matter of statutory construction, the state has asked this court to interpret what R.C. 2947.23 means. The constitutional background is important as the court answers that question. When a criminal defendant experiences significant court costs –sometimes thousands of dollars–for requesting a jury, if that decision chills his fundamental Sixth Amendment right to a jury trial, then that is unconstitutional. The purpose of assessing court costs is to reimburse taxpayers. But if this can’t be assessed against a criminal defendant without undue hardship to that defendant, there’s not a narrow enough tailoring of the application of the statute to the purpose of court costs to justify the infringement on Sixth Amendment rights.

Turning to the plain language of R.C. 2947.23, the three verbs in that statute chosen by the legislature– waive, modify, or suspend court costs–implicitly requires a present ability to pay analysis. It is impossible for a trial court to choose among those three options without considering the defendant’s current and future ability to pay.

In this case, Mr. Dunson made alternative requests to the trial court– the first was to waive the court costs, the second was, if not waiving, to modify them to allow a $5 per month payment plan. That decision is left to the discretion of the trial court and Mr. Dunson is not asking the court today which should happen. He is only asking the court to affirm a rule that when trial courts are presented with a motion to suspend, modify, or waive court costs by an indigent defendant, the trial court must consider that person’s present and future ability to pay. He is not asking the court to hold that trial courts must always hold a hearing on these motions.  He asks only that if a defendant meets his burden of production of presenting evidence that implicates ability to pay, trial courts must consider current and future ability to pay, which the trial court can consider without a hearing. There may be some circumstances where a hearing would be warranted, but not across the boards in every case.

What Was On Their Minds

What Did The Trial Court Actually Consider?

Is there evidence or some showing in the record that the trial court did not consider the ability to pay, asked Justice French? What in the record suggests that? When the defendant appealed his original 2013 conviction, did he raise, as an issue, the amount of the costs that were imposed?

What findings did the trial court make in this case, asked Justice O’Donnell? Reading from the court’s judgment entry, he got into a heated exchange with Dunson’s counsel about whether the trial judge actually made a finding on ability to pay, but one the defendant didn’t agree with. Wasn’t the court the factfinder, which doesn’t mean the court has to find the facts in favor of the evidence presented by the defendant, does it, he asked?

Was the only evidence before the trial court the defendant’s affidavit, asked Justice DeGenaro? And despite that evidence, the trial court denied the defendant’s request for a hearing on court costs and his ability to pay?

What Should The Trial Court Actually Consider?

Should the trial court consider the ability to pay court costs, asked Justice O’Donnell? Isn’t that what the appellate court held? Is it discretionary with the trial court? How is this handled in other appellate districts? As usual, he asked what the court should write in this case.

Inability to Pay/Hearing

There is nothing to preclude a judge from considering present and future ability to pay, is there, asked Chief Justice O’Connor? Or hold a hearing? Didn’t the defendant request such a hearing on this, which the trial court summarily rejected? Does he have the right to re-petition the court for a modification of the court costs after he is released from prison? (answer:yes)

What weight should be given to the fact that there was an affidavit of indigency and appointed counsel in the case, which by definition means the defendant was indigent, asked Justice O’Donnell? Can a defendant be incarcerated for not paying? (answer:no) Is the state’s proposition of law limited to court costs, or does it extend to fines and restitution? Does the trial court have the discretion to waive mandatory costs? In every case?

Constitutional Issue?

Isn’t there a problem with the right to a jury trial if the court doesn’t look at the ability to pay, asked Justice DeWine? But that issue is not in front of us, either directly or indirectly, right?

What are the constitutional questions here, asked Chief Justice O’Connor, noting they were not presented below. She commented that the defendant was not being incarcerated for inability to pay, but was in a wholly different category.

Dunson’s Prison Account

Was money being taken from Mr. Dunson’s prison account and given to the court, asked Chef Justice O’Connor?

Dunson’s Remedies: Court or Department of Corrections?

How can the state argue that the defendant’s remedies belong in the province of the Department of Corrections when the statute says that a trial court may cancel costs if it finds they are uncollectable or if it determines the offender is indigent, asked Justice O’Donnell, commenting that that would seems to be a judicial province.

Isn’t the ODRC acting because the trial court did not issue an order relieving Dunson of the burden of the 6000 plus dollars, which the court did without hearing, asked Chief Justice O’Connor? Aren’t the role of the court and that of the Department two different standards and processes? The court’s role, is either you’re exempt or you’re not, based on your status of indigency and your income, not divving up how the prison system would take a look at this? Do we know for a fact, that money has been taken out and given to the court for court costs? How much has been take out to reduce Mr. Dunson’s bill? Have they been nickel and diming it down?  Would Mr. Dunson like the amount that is currently being taken from his prison account to stop while he is in prison and suspend the collection of the balance? He’s not asking that the court wipe the slate clean for the $5800 remaining court costs? Does he have any other income?

How It Looks From The Bleachers

To Professor Emerita Bettman

This was a strange argument. One of the problems with this case is that from the judgment entry, quoted verbatim during questioning by Justice O’Donnell, it would appear that the trial court did consider Dunson’s present and future ability to pay court costs, although based on what information is unclear. That left both parties in somewhat of an awkward position—the state insisted the trial court did not need to consider present and future ability to pay costs, while the defense argued that it did, but the fact seems to be that the court did so, albeit without hearing. The defense didn’t agree with the trial court’s conclusion, nor did the appeals court. But the state, arguing that the information need not be considered at all, nonetheless agreed with the trial court’s finding.  All of this thoroughly exasperated Justice O’Donnell. And Justice French specifically asked what evidence in the record was there to show that the trial court did not consider the ability to pay.

One possible solution here was suggested by the Second District in State v. Copeland—“Although a trial court need not consider whether a defendant has a present or future ability to pay court costs when court costs are assessed, the trial court should consider the defendant’s ability to pay when a defendant subsequently moves for a waiver, modification, or stay of the payment of court costs.” Whether the high court agrees with this or not, it certainly would seem to be a best practice in this post-conviction situation.

Both Chief Justice O’Connor, who was in prosecutorial questioning-style mode, and especially Justice O’Donnell, were very tough on both counsel, both of whom seemed at different times to irritate each of them. Most everyone else was pretty quiet.

The Chief cares very deeply about this and related issues. She has been co-chair of a national task force examining fine, fee, and bail practices. In January of this year she sent a letter to all the state’s judges reminding them “that courts are centers of justice, not automatic teller machines whose purpose is to generate revenue for governments, including themselves…Practices that penalize the poor simply because of their economic state; that impose unreasonable fines, fees, or bail requirements upon our citizens to raise money or cave to local funding pressure; or that create barriers to access to justice are simply wrong.”

The prosecutor seemed only begrudgingly willing to admit that it was permissible, even if not required, for a trial court to consider present and future ability to pay, and spent a lot of time on all the many internal prison remedies available to Dunson. And defense counsel seemed thrown off guard with Justice O’Donnell’s insistence that the trial court had done exactly what the defense insisted should be done, but the defense simply didn’t agree with the court’s conclusion.

Justice O’Donnell then went on to ask if the state and the defense were on the same side, saying he was confused with the defense position, a good way through Dunson’s argument—never a good sign. Later he seemingly got so frustrated with the prosecutor’s repeated insistence that indigence, rather than present or future ability to pay, was what the statute required, that he asked her why she was asking the court to write what the statute said when the legislature had already done so.

It was also totally unclear what exactly was in the record, before the trial court, in making its decision.

One thing is certain—no constitutional question is going to be reached.

Messy, messy, messy.

To Student Contributor Mark Tassone

I found myself wavering back and forth between the two sides in this case. The State did not seem to deviate from its appellant brief, consistently reminding the Court that the statute does not require a consideration of present or future ability to pay. While there was little flair in this argument, the State’s key strength, in my eyes, was its consistent message.

Dunson, on the other hand, seemed to grapple with what exactly he was asking the Court to rule. At one point, Dunson and Justice O’Donnell got into an energetic dialog wherein O’Donnell made the point that the trial court came to the specific conclusion that Dunson was seeking. O’Donnell posited: “If we agree with your position, what do we write here?” Dunson was caught off balance.

I am doubtful, at this point, of the likelihood that the Court will rule with Dunson. Justice O’Donnell seems, quite unabashedly, to believe that the trial court acted within the meaning of the statute and considered Dunson’s ability to pay. Justice De Wine seems skeptical of Dunson’s case, questioning whether Dunson’s public policy argument—which, I felt was his strongest—was acting as a “back door” for raising constitutional issues.

While I recognize the significance of the issue of indigent defendants and the need for reforms, I think this was the wrong case to carry that mantle. This one goes to the State.

 

 

 

 

Update: On June 7, 2018, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.  

“Your argument is if the police pay an informant, they control him. Isn’t the parallel if the state pays an employee they control him, also?”

Justice Fischer, to the Assistant Prosecutor

On February 13, 2018, the Supreme Court of Ohio heard oral argument in State of Ohio v. Demetrius Jackson, 2017-0145. At issue in this case is whether a suspect’s rights have been violated when he is questioned, without being informed of his Miranda rights, by a children’s services social worker who must report her findings to a law enforcement agency.

Case Background

Jackson was arrested for raping a fourteen-year-old girl. After his arrest, Jackson was advised of his Miranda rights by a Cleveland Police detective. While being held in the Cuyahoga County Jail, Jackson was interviewed by a social worker from the Cuyahoga County Division of Children and Family Services. The social worker did not advise Jackson of his Miranda rights. Jackson admitted to having what he claimed was consensual sex with the minor girl, who he thought was an adult.

At a bench trial, over Jackson’s objection, the judge allowed the social worker to testify as to Jackson’s statements from the interview. Jackson was convicted of rape and related offenses, and sentenced to eleven years in prison.

In a split decision, the Eighth District Court of Appeals reversed Jackson’s conviction, holding that the social worker was acting as an agent of law enforcement, had conducted a custodial interrogation, and should have advised Jackson of his Miranda rights.

Read the oral argument preview of the case here. 

Key Precedent

Fifth Amendment of the United States Constitution (“No person shall… be compelled in any criminal case to be a witness against himself…”)

Sixth Amendment of the United States Constitution (“In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him…and to have the Assistance of Counsel for his defense.”)

R.C. 2901(A)(11) (Definition of “law enforcement officer”)

R.C. 2151.421 Reporting Child Abuse or Neglect

(G) (“the public children services agency shall investigate . . . each report of child abuse or child neglect . . . . The investigation shall be made in cooperation with the law enforcement agency . . . . A representative of the public children services agency shall, at the time of initial contact with the person subject to the investigation, inform the person of the specific complaints or allegations made against the person. The information shall be given in a manner that is consistent with division (I)(1) of this section and protects the rights of the person making the report under this section. . . . The public children services agency shall submit a report of its investigation, in writing, to the law enforcement agency.”)

Mathis v. United States, 391 U.S. 1(1968) (Defendant was convicted through the testimony of an IRS agent, attained while the defendant was incarcerated for another crime. The Court held that despite the IRS agent questioning the defendant on a matter unrelated to his being in custody, the obligations of Miranda still remained.)

Miranda v. Arizona, 384 U.S. 436 (1966) (“[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”)

State v. Bolan, 27 Ohio St.2d 15 (1971) (“[T]he duty of giving ‘Miranda warnings’ is limited to employees of government agencies whose function is to enforce law, or to those acting for such law enforcement agencies by direction of the agencies.”)

State v. Watson, 28 Ohio St.2d 15 (1971) (Defendant challenged the trial court’s refusal to suppress in-custody statements to a newspaper reporter. “The Miranda requirements do not apply when admissions otherwise admissible are given to persons who are not officers of the law or their agents. . . . Although defendant was in custody, the statement in question was not the result of ‘questioning initiated by law enforcement officers.’ Therefore, it is of no consequence that the statement might have been influenced by earlier statements made by defendant to the police.”)

Estelle v. Smith, 101 S.Ct. 1866 (1981) (Defendant held in custody was compelled by the court to submit to a ‘mental status examination’ performed by a court-appointed psychiatrist. The Court concluded that, “when faced while in custody with a court-ordered psychiatric inquiry, [defendant]’s statements . . . were not ‘given freely and voluntarily without any compelling influences’ and, as such, could be used . . . only if [defendant] had been apprised of his rights and had knowingly decided to waive them.”)

State v. Roberts, 32 Ohio St.3d 225 (1987) (“[S]tatements by an in-custody probationer to his probation officer are inadmissible in a subsequent criminal trial, where prior to questioning, the probation officer failed to advise the probationer of his Miranda rights as required by Section 10, Article I of the Ohio Constitution and by the Fifth and Fourteenth Amendments to the United States Constitution.”)

Ohio v. Clark, 135 S.Ct. 2173 (2015) (“[M]andatory reporting statutes alone cannot convert a conversation between a concerned teacher and her student into a law enforcement mission aimed primarily at gathering evidence for a prosecution.”)

At Oral Argument

The New Seating Chart

Every time a new justice joins the court, the seating arrangement changes. This is the first blog post on a case in which Justice DeGenaro participated.  So, as she has the least seniority, she now sits on the end where Justice DeWine had been sitting. Facing the bench, as if arguing, the configuration is now Justice DeWine, French, O’Donnell, the Chief, then Justices Kennedy, Fischer, and DeGenaro.

Arguing Counsel

Anthony T. Miranda, Assistant Prosecutor, Cuyahoga County, for Appellant State of Ohio

Jonathan N. Garver, Cleveland, for Appellee Demetrius Jackson

State’s Argument

A social worker’s statutory duty to share information with law enforcement does not transform her into an agent of law enforcement. The test, as previously articulated by this court, is whether the social worker is being controlled or directed by law enforcement. In this case, she was not.

The appellate decision finding no legitimate purpose for the social worker’s interview, other than to directly assist law enforcement in its investigation, was incorrect. It ignores the separate function that social workers serve, which is to substantiate abuse and neglect allegations. In this case, for example, the social worker learned after interviewing the defendant that he had contracted a sexually transmitted disease—at sentencing it was revealed that the 14 year old victim in this case had also contracted that disease.

The state asks the court to reject a bright-line rule and instead to adopt a test that considers all the facts surrounding a social worker’s interview of the defendant, which is a sounder approach than a bright-line rule.  Did the police set up the interview between the social worker and the defendant? Were the police present during the interview? Were they providing the questions to be asked?

The U.S. Supreme Court decision in Ohio v. Clark, while dealing with Sixth Amendment issues, is persuasive on these issues as well. There, the Court rejected the bright line rule that a teacher, because of a teacher’s mandatory reporting obligation, is an agent of law enforcement for purposes of the Confrontation Clause.  That is strong evidence to reject a bright-line rule in this case.

The concerns about coercion present in Miranda are not present in this situation.  The social worker did not have the power to arrest the defendant, there is no evidence in the record that she had the power to detain him beyond his wishes, or keep him in the room. Here, the social worker informed Jackson of the allegations, and asked him if he had anything to say, which suggests nothing more than a voluntary exchange of information.

Nor are the informant line of cases from the U.S. Supreme Court dispositive of these issues. They differ from this case in two important ways. First, an informant is paid by police, which is a level of direction and control between informant and police not found here. And second is the surreptitious nature of the conversations in those cases, not found in this case.

The state asks the court to adopt the test that considers all of the facts surrounding the social worker’s interview, and find there is no evidence of direction or control by police in this case.

Jackson’s Argument

Miranda both meets the legitimate needs of law enforcement and protects the interests of the accused. So, requiring children’s services investigators—who are, after all, state actors–to advise an accused of his Miranda rights will not prevent them from performing their job any more than requiring police officers to give those warnings has prevented them from doing theirs.

The court of appeals should be affirmed for two reasons. The first involves the existence of a mutual agency relationship between the children’s services agencies and law enforcement. The second deals with other considerations that were deemed important by the U.S. Supreme Court under Miranda.

Even under Ohio v. Clark, albeit in a Sixth Amendment context, the U.S. Supreme Court did not hold that private citizens are not agents of law enforcement under any and all circumstances. In Clark, what the Court held was that in determining whether an out-of-court statement is testimonial for purposes of the Confrontation Clause, Ohio’s mandatory reporting statute does not convert a private citizen, like the pre-school teacher in that case, into an agent of law enforcement. Here, however, in this context we are dealing with a state actor, not a private citizen.

A number of statutes affecting children’s service agencies other than the mandatory reporting statute come into play here, including those requiring the starting of an investigation within 24 hours, sharing the reports of its investigation with the police, and requiring children’s service agencies to enter into a memorandum with law enforcement and the local prosecutor setting forth the normal operating procedure to be employed by all concerned officials. Other statutes address the creation of a child’s advocacy center, use of a multi-disciplinary team, and establishing protocols and procedures for any and all referrals and investigations, and coordinating all these activities. So in this situation a mutual agency relationship has been established, much like the agency relationship that exists in a partnership. That mutual agency relationship is created by statutorily-mandated institutional relationships. So, there is no need to ask whether a police officer made a specific request of the agency to conduct this investigation, because the law requires it.

The other concern addressed in Miranda was the coercive nature of police questioning in a custodial interrogation. Here, the only function of the children’s service investigator is to interrogate alleged perpetrators. Since that is her only function, presumably she is just as trained and capable of interrogating a suspect as a police officer. Thus, the social worker in this case is an agent of law enforcement under the ambit of Miranda.

Finally, the possibility that exculpatory information might be revealed during an interrogation like this one does not negate the necessity for giving the accused Miranda warnings. In this case, it is likely the revelation of what might be described as exculpatory evidence put pressure on the defendant to testify at trial.

What Was On Their Minds

Ohio v. Clark

Doesn’t Ohio v. Clark tell us that just the fact that there is mandatory reporting doesn’t transform the person who has to report into an agent of law enforcement, asked Justice DeWine? Why would that be any different here?

Social Workers

Is there case law where a social worker in this kind of situation has been found to be an agent of law enforcement, asked Justice O’Donnell? Is there any case that holds that a social worker is an agent of law enforcement?

Isn’t the purpose of the investigation what is at issue here, asked Justice DeWine? Is this the functional equivalent of a police interrogation?

This Social Worker

Was the testimony clear enough about what the social worker in this case actually said to this defendant, asked Justice French, commenting that the trial court seemed to have trouble with what this social worker actually said to this defendant as opposed to what she does as a matter of protocol. Didn’t that have the consequence of forcing the defendant to testify in this case? Would he have testified were it not for the social worker’s testimony?

Isn’t the social worker paid by the state, asked Justice Fischer?

Isn’t questioning by a social worker more concerning for Fifth and Sixth Amendment purposes because it seems so unofficial, asked Justice DeGenaro? Didn’t Mr. Jackson refuse to speak to the detective after he was Mirandized, and then five days later the social worker showed up at the jail to interview him, where she indicated that her primary duty is to interview alleged perpetrators in a jail?

Is it the defense position that this social worker had a duty to advise of the Miranda warnings, asked Justice O’Donnell? (answer: yes)

Doesn’t the social worker need to know what’s going on in the home, and who may have allowed this, and other things the state should be concerned about, asked Justice DeWine? Isn’t this interview required to determine whether to remove the child from the home, and those sorts of things?

Wasn’t some of the information given to the social worker exculpatory, asked Chief Justice O’Connor? But there wasn’t any indication that Mr. Jackson changed his defense?

Law Enforcement

Is the social worker’s obligation to share information with law enforcement based on subpoena, asked Chief Justice O’Connor? (answer: no, it is statutory)

What Should Happen with this Appeal

If the court were to agree with the state that there needs to be some kind of multi-factored test in this situation, can the court apply it and decide it or must it go back to the appeals court, asked Justice Fischer? (answer: this court should apply the factors)

If the court does agree with the state, doesn’t the case have to go back to the appeals court to decide the other issues mooted by its disposition of the case, asked Justice O’Donnell? (state’s answer, yes, but after finding the social worker is not an agent of law enforcement here.)(Professor’s Note-the issues mooted were an evidentiary challenge to allowing the police officer to testify that the victim told him she had been raped, and that the conviction in this case was against the manifest weight of the evidence.)

How It Looks From The Bleachers

To Professor Emerita Bettman

To me this is a much closer question than Clark, because the social worker/child advocate in this case, unlike the teacher in Clark, is a state actor, and I thought Mr. Garver made a very effective argument about the institutional co-ordination and cooperation between the children’s services agency, the police, and the prosecution. Whether that is enough to swing four justices is another matter.

Justice O’Donnell was the author of State v. Clark, 2013-Ohio-4731, in which the Supreme Court of Ohio held, in a Sixth Amendment context, that the primary purpose of  questioning by teachers of a child victim of abuse was to gather evidence for a subsequent criminal prosecution, so statements of the child identifying his abuser could not be admitted through the teachers at trial. Joining O’Donnell were Justices Pfeifer, Kennedy and O’Neill.  That decision was unanimously overruled by the U.S. Supreme Court in  Ohio v. Clark, 135 S.Ct. 2173 (2015).  That might make O’Donnell gun-shy about buying the defense argument in this Fifth Amendment context. He kept pressing Mr. Garver for cases finding a social worker to be an agent of law enforcement. The Chief generally has been very protective of children, so their interests always trump with her. I’m putting her solidly in the state’s corner. Justice DeGenaro’s questions seemed most sympathetic to the defense position, which I think is a strong one, but I’m going to disagree with student contributor Mark Tassone, and call this for the state, even though I wouldn’t vote that way.

Justice O’Donnell’s question to Mr. Garver about cases finding social workers to be agents of law enforcement caused me to go back and review the Court’s 2010 decision in State v. Arnold, another Sixth Amendment case, which involved statements made by a child rape victim to a social worker at a child-advocacy center. The court in that 4-2 decision (then-Chief Justice Eric Brown did not participate in the case) got into a heated disagreement about whether the social worker in that case was an agent of law enforcement. The social worker was operating in a dual capacity as both a forensic interviewer collecting information for use by the police, and a medical interviewer getting information for diagnosis and treatment.

Then-Justice O’Connor, writing the majority opinion, found the statements made by the child about her father’s actions leading up to the rape were primarily forensic, and thus testimonial and inadmissible, but the statements describing the acts performed by her father were necessary to diagnose and medically treat the child. Those statements were nontestimonial, and were admissible. Justices Pfeifer and O’Donnell strongly disagreed in dissent, finding the social worker to be an agent of law enforcement the whole time.

To Student Contributor Mark Tassone

I cannot say this was among the more lively oral arguments I’ve witnessed.

The state’s argument seemed stagnant and flat. However, the state did make important points in justifying its interest in having social workers involved during alleged abuses of children (the possibility of sexually transmitted diseases as well as the possibility of the child being returned to a potentially compliant and unsafe guardian).

The Chief Justice’s question right out of the gate whether the reporting was done through subpoena or statute may have tipped her hand in Jackson’s favor.

However, the prosecutor did seem to bounce back by pointing out that there is no evidence that the social worker in question ever spoke to the police. Thus, the state attempted to draw a distinct line between this case and other Sixth Amendment cases.

The string of questions at the close of the state’s arguments demonstrate a likelihood of remand.

Jackson emphasized the relationship between the state agencies. I thought Jackson’s description of an “institutional arrangement” was his best swing for the fences. However, Jackson failed to answer Justice O’Donnell’s question pinning down a case in which a social worker has been found to be an agent of law enforcement. And I believe Jackson missed a real opportunity for a home-run.

On the whole, this was certainly not the warmest bench I’ve seen. However, my sense is that the court is very concerned by the state’s reporting requirement. And I foresee the court finding in Jackson’s favor with a remand to determine the unaddressed issues in the Eighth District’s decision.

 

 

 

 

 

 

Update: On June 7, 2018, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.  

Read the analysis of the oral argument here.

On February 13, 2018, the Supreme Court of Ohio will hear oral argument in State of Ohio v. Demetrius Jackson, 2017-0145. At issue in this case is whether a suspect’s rights have been violated when he is questioned, without being informed of his Miranda rights, by a children’s services social worker who must report her findings to a law enforcement agency.

Case Background

Jackson was arrested on August 5, 2015, for raping a fourteen-year-old girl. Unable to make bail, Jackson remained incarcerated from his arrest date through sentencing. After his arrest, Jackson was advised of his Miranda rights by a Cleveland Police detective. While being held in the Cuyahoga County Jail, Jackson was interviewed by a social worker from the Cuyahoga County Division of Children and Family Services. The social worker advised Jackson of the allegations against him, that he did not have to speak with her, and that anything he said could be used by the courts, but did not give him the  actual Miranda warnings.  Jackson then admitted to having what he claimed was consensual sex with the minor girl, who he thought was an adult.

At a bench trial before Cuyahoga County Common Pleas Court Judge Janet Burnside, over Jackson’s objection, the judge allowed the social worker to testify as to Jackson’s statements. Jackson was convicted of rape and related offenses, and sentenced to eleven years in prison.

In a split decision written by Judge Eileen A. Gallagher and joined by Judge Mary Boyle, the Eighth District Court of Appeals reversed Jackson’s conviction, holding that the social worker was acting as an agent of law enforcement, had conducted a custodial interrogation, and  should have advised Jackson of his Miranda rights. Judge Sean Gallagher dissented.

Votes to Accept the Case

Yes: Chief Justice O’Connor, and Justices O’Donnell, Kennedy, French, O’Neill, Fischer, and DeWine.

No: There were no dissenters.

Key Precedent

Fifth Amendment of the United States Constitution (“No person shall… be compelled in any criminal case to be a witness against himself…”)

Sixth Amendment of the United States Constitution (“In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him…and to have the Assistance of Counsel for his defense.”)

R.C. 2901(A)(11) (Definition of “law enforcement officer”)

R.C. 2151.421 Reporting Child Abuse or Neglect

(G) (“the public children services agency shall investigate . . . each report of child abuse or child neglect . . . . The investigation shall be made in cooperation with the law enforcement agency . . . . A representative of the public children services agency shall, at the time of initial contact with the person subject to the investigation, inform the person of the specific complaints or allegations made against the person. The information shall be given in a manner that is consistent with division (I)(1) of this section and protects the rights of the person making the report under this section. . . . The public children services agency shall submit a report of its investigation, in writing, to the law enforcement agency.”)

Mathis v. United States, 391 U.S. 1(1968) (Defendant was convicted through the testimony of an IRS agent, attained while the defendant was incarcerated for another crime. The Court held that despite the IRS agent questioning the defendant on a matter unrelated to his being in custody, the obligations of Miranda still remained.)

Miranda v. Arizona, 384 U.S. 436 (1966) (“[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”)

State v. Bolan, 27 Ohio St.2d 15 (1971) (“[T]he duty of giving ‘Miranda warnings’ is limited to employees of government agencies whose function is to enforce law, or to those acting for such law enforcement agencies by direction of the agencies.”)

State v. Watson, 28 Ohio St.2d 15 (1971) (Defendant challenged the trial court’s refusal to suppress in-custody statements to a newspaper reporter. “The Miranda requirements do not apply when admissions otherwise admissible are given to persons who are not officers of the law or their agents. . . . Although defendant was in custody, the statement in question was not the result of ‘questioning initiated by law enforcement officers.’ Therefore, it is of no consequence that the statement might have been influenced by earlier statements made by defendant to the police.”)

Estelle v. Smith, 101 S.Ct. 1866 (1981) (Defendant held in custody was compelled by the court to submit to a ‘mental status examination’ performed by a court-appointed psychiatrist. The Court concluded that, “when faced while in custody with a court-ordered psychiatric inquiry, [defendant]’s statements . . . were not ‘given freely and voluntarily without any compelling influences’ and, as such, could be used . . . only if [defendant] had been apprised of his rights and had knowingly decided to waive them.”)

State v. Roberts, 32 Ohio St.3d 225 (1987) (“[S]tatements by an in-custody probationer to his probation officer are inadmissible in a subsequent criminal trial, where prior to questioning, the probation officer failed to advise the probationer of his Miranda rights as required by Section 10, Article I of the Ohio Constitution and by the Fifth and Fourteenth Amendments to the United States Constitution.”)

Ohio v. Clark, 135 S.Ct. 2173 (2015) (“[M]andatory reporting statutes alone cannot convert a conversation between a concerned teacher and her student into a law enforcement mission aimed primarily at gathering evidence for a prosecution.”)

State’s Argument

Miranda applies only to law enforcement and its agents.  Social workers are not statutorily defined as law enforcement, and are not transformed into law enforcement by their duty to report suspected child abuse to law enforcement. Interviews by social workers like the one that took place here serve important health and safety interests of child victims. In this case, specifically, it helped to identify that the child had been exposed to a sexually transmitted disease.

The Supreme Court of Ohio has not addressed the issue of whether social workers are agents of law enforcement for Fifth and Sixth Amendment purposes, and the Ohio appeals courts have reached conflicting conclusions on this issue. This Court should reject the bright-line rule established by the Eighth District that any interview by a public children’s services agency social worker makes the social worker an agent of law enforcement because of the duty to share the information later with law enforcement.

Of the states that have considered this issue, Louisiana, North Carolina, Oklahoma, and Texas consider a variety of factors before deeming a social worker an agent under the constraints of Miranda. Maine, New Jersey, and Pennsylvania use a bright-line rule like that adopted by the Eighth District Court of Appeals. The state urges the court to adopt the multi-factor approach and reject the bright-line rule.

A social worker’s obligation to inform law enforcement of suspected child abuse does not categorically change all social workers into agents of law enforcement. Notably, the United States Supreme Court, in Ohio v. Clark, unanimously rejected the argument in the Sixth Amendment context, that a statutory duty to report suspected abuse to police transforms a private citizen (there, a teacher)  into a law enforcement agent. The fact that a prosecution later resulted made no difference.

Miranda is meant to protect citizens against “an interrogation environment”—an environment which is entirely absent from the present case. Interviews by social workers do not share the coercive environment of concern in Miranda. Indeed, Jackson testified that he did not feel compelled in making the statements to the social worker.

The social worker in this case gave Jackson all the advisements that were required. No police officer was present for this questioning. There is no evidence that this interview was part of a broader police investigation. There is no evidence that Jackson refused to speak with the social worker or felt compelled to do so, or asserted any constitutional rights. Jackson voluntarily made statements to a non-law enforcement person. No Fifth or Sixth Amendment rights were implicated or violated.

Jackson’s Argument

The purpose of the Miranda warnings is to protect an individual against self-incrimination in the coercive environment of custodial interrogation.  That is when procedural safeguards must be employed to protect the privilege.

The state’s proposed proposition of law in this case presents the issue too broadly. The issue is only whether the social worker in this case was acting as an agent of law enforcement, not whether all social workers do.

The social worker who questioned Jackson in this case was a member of a special unit of a state agency which collaborates with and works as a team with law enforcement in the investigation and prosecution of crimes against minor children.  The U.S. Supreme Court has already extended the Miranda requirements to an IRS agent conducting a routine tax examination, and to a court-appointed psychiatrist appointed to perform an evaluation of the defendant. The Supreme Court of Ohio has held probation officers must give Miranda warnings to in-custody probationers.

Social workers employed by children services’ agencies are employees of the state and are, therefore, “state actors” under Miranda. In those jurisdictions that require social worker/investigators employed by state agencies to give Miranda warnings, courts emphasize that social workers investigate crimes against children on behalf of the state. The interests of the accused are not in line with the investigating social worker. Social workers are required by law to report any potential wrongdoing. And social workers often work alongside police, leading to criminal prosecutions. Being is custody is often key to a court’s analysis.

Courts often do not find Miranda violations when the defendant makes statements to a social worker outside of confinement. But here, when Jackson made the statements, it is undisputed that he was in custody.

The social worker with whom Jackson spoke was employed by the county; social workers often interview alleged sex-offenders side-by-side with police officers. This social worker exclusively interviews alleged sex-offenders, thus she likely possesses interrogation skills equal to or greater than a member of law enforcement.

Jackson denies that he voluntarily spoke with the social worker. Rather, he was removed from his jail cell and brought to a special interview room at the request of the social worker. And without counsel present, he was subjected to questioning which, under R.C. 2151.421, “shall be made in cooperation with [a] law enforcement agency”.

Finally, Jackson challenges the State’s depiction of the split among the courts of appeal on this issue. This case was not accepted on conflict certification; none was even requested. Furthermore, those cases are factually distinguishable.

State’s Proposed Proposition of Law

A social worker’s duty to cooperate and share information with law enforcement does not render the social worker an agent of law enforcement under the Fifth and Sixth Amendments of the U.S. Constitution, where the social worker does not act at the direction, control, or behest of law enforcement.

Student Contributor: Mark Tassone