Sunday, August 23, 2009

Sauce for the Goose

It's a small little rule, XIV(2)(A)(3), of the Ohio Supreme Court's Rules of Practice. This week it grew in stature.

Here's what XIV(2)(A)(3) says:
In a case involving a felony, when a county prosecutor files a notice of appeal under S.Ct.Prac.R. II or an order certifying a conflict under S.Ct.Prac.R. IV, the county prosecutor shall also serve a copy of the notice or order on the Ohio Public Defender.
Seems simple enough, sensible, and frankly, fairly trivial. If the state asks the Supreme Court to hear a felony appeal, it should tell the public defender. Why? The PD may well have to defend the decision below, and it needs some notice. It's no big deal, anyway. Just drop a copy of the documents in the mail to the PD's office in Columbus.

Except for years nobody much did it. And it didn't really matter because the PD kept track on its own and the court itself would try to ensure that the PD got involved when necessary. I can't say that no cases fell through the cracks, but the number that did was surely tiny.

Just over a year ago, the PD decided the rule really should count. In at least three cases (State v. Cargile, State v. Lester, and State v. Rohrbaugh) the Public Defender filed motions to dismiss appeals for failure to comply with the rule. In February, the court denied all three motions, though it cautioned prosecutors to start obeying the rule. (Opinions here and here and here.)

And so things stood. Another empty threat by the court against prosecutors. Until last Thursday. In April of this year, the Mahoning County Prosecutor asked the Ohio Supreme Court to review a decision from the Seventh District Court of Appeals ordering that Lawrence Owens should be resentenced. The prosecutor didn't bother complying with Rule XIV(2)(A)(3). The PD's office filed a motion to dismiss. On Thursday, the court granted the motion and dismissed the state's appeal.

OK, I know. The case isn't that big a deal. They probably wouldn't have heard the appeal, anyway. And yeah, the prosecutor never bothered to file a response to the motion to dismiss. And the court gets ticky enough about its own rules that this isn't the first time the state's gotten burned for not obeying them.

Still, it's good to see the court actually following though on one of its threats against the state - something it ordinarily doesn't do. Consider Chief Justice Moyer's comments, in dissent, in State v. Fears where the context was repeated and intentional misconduct by the prosecutor during the sentencing phase of a death penalty trial. The majority's position was, roughly, please stop continuing to do this as we keep telling you. The Chief had had enough. He wrote:
Clearly, our protestations have failed to change the advocacy of some prosecutors. It is as if they intentionally engage in improper conduct, safe in the belief that this court will continue to protest with no consequences.

The Owens case is probably no big deal. Like I say, the court is particularly energetic when enforcing its procedural rules and the case wasn't all that important. So maybe the prosecutors will learn routinely to mail a copy of their appeal documents to the Public Defender. Still, it's something.

Would have been nice if the court had been unanimous, though.

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