Willful Ignorance Takes One Small Hit

Public policy dictates that there be an end of litigation; that those who have contested on issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties. We see no reason why this doctrine should not apply in every case where one voluntarily appears, presents his case and is fully heard, and why he should not, in the absence of fraud, be thereafter concluded by the judgment of the tribunal to which he has submitted his cause.

So wrote Justice Roberts (Owen, not Chief John) for the Supreme Court of the United States, in Baldwin v. Iowa State Traveling Men's Assn. (1931).

The actual question in Baldwin involves civil procedure and collateral attacks.  Roughly, Baldwin Sued ISTA in Missouri.  ISTA said Baldwin couldn't do that because it didn't have sufficient connection to Missouri and, therefore, the Missouri court had no jurisdiction over ISTA.  If Baldwin wanted to sue, it should have done so in Iowa.  ISTA lost that argument.  Then it went home, and Baldwin was awarded damages.  ISTA didn't appeal the decision about where it could be sued.  Baldwin then went to Iowa and sued to collect.  ISTA defended that lawsuit by arguing that it couldn't have been sued in Missouri, the exact argument it had lost in Missouri. This time it won.

The Supreme Court's point is that ISTA had its chance.  It had a procedure it could have used to complain about the Missouri court's jurisdictional ruling, but it chose not to.  It could have ignored the Missouri court altogether and fought the jurisdictional issue in the Iowa courts.  It can't have it both ways.  Having given up the right to complain once, the Court said, ISTA can't just try and litigate the same point again.

You lost.  Get over it.

Frankly, the decision makes sense.  As the Court explains,* ISTA had several clear options in this case that would have allowed it to pursue challenges to the Missouri court's jurisdiction.  Ignoring the decision, which is what ISTA did, wasn't one of them.  Like I say, it makes sense.  You don't chose to fight in court A, lose, then decide to refight exactly the same battle in court B.  You want to go into A and fight, then keep fighting in A and through its mechanism for further appeal.

But the law is messy.  What makes sense in one context makes no sense whatsover in another.  The language that seemed so felicitous, so clearly to capture the point in Baldwin is seriously out of place 65 years later when Justice Alice Robie Resnick of the Supreme Court of Ohio quoted most of it in State v. Szefcyk.  In 1991, Szefcyk was driving a truck when he had an accident and killed Philip Lichtcsien, who was riding a bicycle.   A horrible traffic accident.  Typically, he would have been charged with vehicular homicide, a misdemeanor.  Instead, he was charged with involuntary manslaughter, a major felony.  What made it involuntary manslaughter was the underlying minor misdemeanor traffic offense.  Szefcyk was tried, convicted, and appealed.  The court of appeals affirmed his conviction and the Ohio Supreme Court refused to hear his appeal.

Later, however, in another case, the Ohio Supremes said that a minor misdemeanor traffic offense cannot be the basis of an involuntary manslaughter conviction.  The problem is that what turned the accident in Szefcyk's case into a felony was a minor misdemeanor traffic offense. So Szefcyk went back to court.

You can see where this is going.  He won in the court of appeals where the court said, roughly, since the Ohio Supreme Court says that what he did isn't involuntary manslaughter, his conviction for involuntary manslaughter should be vacated.  (I'm oversimplifying a lot, but that was the point.)  But the state appealed.  And the supremes reversed.  He had his chance to appeal (and took it, by the way), and he lost.  The fact that it turns out he was right is irrelevant.

Quoting another case from the U.S. Supreme Court that in turn quoted Baldwin, Justice Resnick said:

“‘[P]ublic policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties.’ [Citation omitted.] We have stressed that ‘[the] doctrine of res judicata is not a mere matter of practice or procedure inherited from a more technical time than ours. It is a rule of fundamental and substantial justice, “of public policy and of private peace,” which should be cordially regarded and enforced by the courts. ***’ [Citation omitted.]” Federated Dept. Stores, Inc. v. Moitie (1981), 452 U.S. 394, 401, 101 S.Ct. 2424, 2429, 69 L.Ed.2d 103, 110-111.

The language is largely the same (after all, Szefcyk quotes Baldwin), but the context is altogether different.  And while Baldwin makes perfect sense, Szefcyk makes none at all unless affirming convictions is a virtue regardless of whether they're proper.  That may have been the Ohio Supreme Court's real purpose, but if so, it's not one they were ready to admit.

Here's how the cases differ.

In Baldwin, ISTA was trying to game the system.  ISTA chose to go to Missouri and fight jurisdiction.  When it didn't win the argument there it chose not to challenge the ruling it lost.  Instead, it went home.  Later, hauled into an Iowa court, ISTA made the same argument and this time won.  The only difference between the Missouri and Iowa cases (as a strictly legal matter) is that Missouri thought ISTA was wrong and Iowa didn't.

Szefcyk never tried to game the system.  He didn't initially choose to go to court.  He was dragged there by the prosecutor who brought criminal charges against him.  He then pursued the argument up through the Ohio Supreme Court which refused to hear his case.  He did all he could.  Then the Ohio Supreme Court - the court that says exactly what Ohio law means - said that what he did wasn't a crime.  That means he should have won.  It's not a disagreement among courts, it's the first definitive word on the subject.  So he went back to court.

The US Supreme Court told ISTA it had its chance and chose not to take it.  It had no right to game the system, no right to argue again a technical question of the Missouri court's jurisdiction.

The Ohio Supreme Court told Szefcyk something rather different.  They told him that even though what he did wasn't the crime he was convicted of, and even though he'd made that very argument, he couldn't get the benefit of it because they're decision (that he was innocent) came after he'd made the argument rather than before.
If only they'd decided before he was tried, it would have been fine.  Too late for him.

What leads me talk about all this today is that the Ohio Supremes just issued another decision.  This time it's about DNA testing, and the case is State v. Prade.

Douglas Prade was tried and convicted of murder in the death of his wife, Margo Prade, back in 1997.  DNA testing at the time revealed so much of Margo's DNA from a bite mark on her coat (the bite wehn through the coat and a shirt and down to the skin) that no other person's could be recovered.  Prade appealed.

In 2004, under a recently passed law, Prade applied for DNA testing.  Under the law, there would be no post-conviction DNA testing if “a prior definitive DNA test has been conducted.”  Because the prior test excluded Prade (and everyone else in the universe except Margo), the court said it was definitive and denied the testing.

In 2008, armed with evidence that new testing methods would likely show the DNA of the person leaving the bite mark on the coat, Prade applied again.  Denied again, and for the same reason.  This time, the Ohio Supremes agreed to hear the case and today, by a vote of 4-2 (neither the late chief justice nor the newly appointed chief justice was involved and a visiting dissenter sat in for O'Connor, who recused herself), the court said that . . . . Well, they really didn't say all that much.  They said that the earlier DNA test wasn't "definitive" because new technology might actually say something definitive.

[A] prior DNA test is not “definitive” within the meaning of R.C. 2953.74(A) when a new DNA testing method can detect information that could not be detected by the prior DNA test.

Still, Prade doesn't get a new test unless the lower courts now agree that a new test would be "outcome determinative."

In dissent, Justice O'Donnell quotes that old line from Baldwin (and Szefcyk) and puts it in the context of Ohio's commitment to providing only a very "narrow" opportunity for post-conviction relief. As this court explained in State v. Steffen (1994), 70 Ohio St.3d 399, 410, 639 N.E.2d 67, postconviction review is not a constitutional right, and it provides only “a narrow remedy.”Because of the significant societal interest in the finality of judgments, the postconviction relief statute provides only a limited opportunity to collaterally attack a conviction, an opportunity not intended to allow inmates to relitigate issues previously resolved at trial. See id. (explaining that res judicata applies to actions for postconviction relief); State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 47 (noting that courts construe statutes establishing postconviction relief narrowly to uphold the societal interest in final judgments). As we stated in State v. Szefcyk (1996), 77 Ohio St.3d 93, 671 N.E.2d 233: “ ‘“[P]ublic policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties.” ’ ” Id. at 95, quoting Federated Dept. Stores, Inc. v. Moitie (1981), 452 U.S. 394, 401, 101 S.Ct. 2424, 69 L.Ed.2d 103, quoting Baldwin v. Ionwa State Traveling Men’s Assn. (1931), 283 U.S. 522, 525, 51 S.Ct. 517, 75 L.Ed. 1244.
. . .
In enacting R.C. 2953.71 et seq., the General Assembly took up this task, considered the public-policy questions raised by postconviction DNA testing, measured an inmate’s interest in proving actual innocence against the societal interest in the finality of judgments, and established a limited remedy affording postconviction DNA testing in cases where biological evidence has not been the subject of a prior definitive test. This court should not expand that remedy beyond the statute’s express terms. The legislature could have provided for courts to consider advances in testing technology in determining whether prior tests were definitive, yet it chose not to do so. Instead, by barring applications for retesting when there has been a prior definitive test, the legislature signaled its intent to uphold the finality of convictions.

I wrote yesterday about finality trumping fairness and even legal accuracy in the context of AEDPA.  Justice Terry O'Donnell (and visiting Judge Patricia Delaney) would apply that principle to DNA testing.  After all, the Ohio legislature said that upholding convictions is more important than being sure the right person was convicted, and that's the sort of position the courts have always taken before.  Why change now?

Just this once, and perhaps just for today, I can say that the Ohio Supreme Court rejected that approach.  Prade now gets a chance to argue that a DNA exclusion by more sophisticated testing than was available at trial might be outcome determinative.

I don't know what will happen next, and I certainly don't know whether Prade killed his wife.  But the guy's doing life in prison.**  It really doesn't seem like such a bad idea to find out if he actually committed the crime.  So the court got it right.  Public policy be damned.

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*In five pages with big type and lots of white space.  Today's Supremes could learn a lot from Baldwin about how to pare down opinions.

**Of course, we just executed Darryl Durr while the supreme court sat on its hands and refused even to decide whether he was properly denied DNA testing.  But Prade is only doing life, so he gets more protection.