Sunday, September 13, 2009


More than twenty years ago, in Griffey v. Rajan (no free copy for a link, sorry), the Ohio Supreme Court set forth what you'd think might seem an fundamental principle of any decent justice system:
Ohio courts should strive to decide cases upon their merits rather than upon procedural grounds.
In fact, courts (in Ohio and elsewhere) rely on that principle exactly to the extent they're so inclined. Griffey itself was decided on a procedural technicality, despite its announcement of the rule against doing that. The full sentence, omitting citations, says, basically that policy is the more important than procedure except when it isn't.
Although we are committed to the principle that Ohio courts should strive to decide cases upon their merits rather than upon procedural grounds . . . , we refuse to let Civ.R. 60(B) [which would allow the merits to be heard] serve as an emasculation of the pleading rules and time limits.
The short of it is that there's no rule.

Which brings us, again, to the saga of Rommell Broom. (See here and here.) When last we dropped in on the case (here), the Ohio Supreme Court had decided to expedite its review of the case - which would give it time to decide and then stay the execution in order to permit a hearing. Friday afternoon, the court ruled. And in the great battle between technical procedure and merits, procedure won again.

The formal question was whether Broom should have a chance to use material that the state unconstitutionally hid at trial to show
by clear and convincing evidence that, but for constitutional error at trial, no reasonable trier of fact would have found him guilty.
Got that? Broom wants the chance to demonstrate that if the state hadn't cheated he couldn't possibly have been convicted. And remember, nobody is disputing the fact that the state did cheat, did violate the Constitution.

And the court said "No." Gee, you could have tried to use the material to show that years ago. Just because we seemed to say back then that you couldn't, well we didn't absolutely clearly say you couldn't, so it's too late now. The court didn't even say that he could have used the evidence back then, just that he might have been able to. And he had to have tried.

We might never have allowed you to try proving that you're innocent, but we're certainly not going to let you do it now. And then there's the throw away, almost a passing thought, certainly not the basis of the decision: Oh, you're probably guilty.

Justice Pfeifer concurred only in the result. He said that he looked at the evidence and it really wouldn't have made a difference. Otherwise, procedure be damned, he'd support the right to a hearing. And Justice O'Donnell, who didn't bother explaining why (didn't want to be pissing into the wind seems like one possibility) dissented and would have allowed the effort to prove innocence.

Years ago, I was arguing a case in the court of appeals. The issue involved some ambiguity about how judges were to impose sentence under Ohio's then new felony sentencing law. The reality was that if I won (which I did), my client would get resentenced and might (though not necessarily) get the same sentence again, this time properly imposed. One of the judges asked me why, if the ultimate sentence would probably be the same, the court of appeals was even involved. My answer was something like this:
Part of your job as an appellate court, is to make sure lower courts do their job right, and to tell them how to do it. My client is entitled to a fair sentencing procedure done in accordance with the law. If he gets that, maybe he'll get a lower sentence, maybe not. But he'll have gotten a chance. Rules matter and you have to explain what they are. But they matter not just for themselves but so that the parties get their chance. And you have to ensure that.
The judge looked at me from the bench and said
You know, I don't think I've ever said this before, I don't think I've ever even thought this before, but I agree with you completely.
When Alice asked Humpty Dumpty how he could "make words mean so many different things," she got a simple but dishonest answer:
"The question is," said Humpty Dumpty, "which is to be the master; that's all."
Words signify, they have meaning, not in themselves but toward an end. So with procedural rules. They matter not in themselves but because they provide a mechanism for reaching the merits of a case. When they triumph on their own, when they become the master, when we don't give Broom a chance to prove he's innocent now because he didn't make an effort to prove it at a time when it looked like he wouldn't be allowed to, the tail wags the dog.

Death, the courts tell us, is different. Damn straight.

Execution Tuesday.

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