I was reviewing an indictment* charging Aggravated Murder and a specification that a gun was used in the offense. It's the usual out of Lucas County, boilerplate with a couple of blanks filled in.
THE JURORS OF THE GRAND JURY OF THE State of Ohio, within and for Lucas County, Ohio, on their oaths, in the name and by the authority of the State of Ohio, do find and present that ________________, on or about the ___ day of _______________, in Lucas County, Ohio, did purposely cause the death of another with prior calculation and design, in violation of § 2903.01(A) and (F) OF THE OHIO REVISED CODE, AGGRAVATED MURDER, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Ohio.
SPECIFICATION THAT OFFENDER DISPLAYED, BRANDISHED, INDICATED POSSESSION OF OR USED FIREARM-§2941.145
The Grand Jurors further find and specify that the offender had a firearm on or about the offender or under the offender's control while committing the offense and displayed the firearm, brandished the firearm, indicated that the offender possessed the firearm or used it to facilitate the offense.
As I said, that's all formula fill-in-the-blanks stuff. You do serious criminal defense in state court around here you see exactly that indictment on a fairly regular basis. But this time I was struck by something about the specification. It wasn't the obvious uncertainty.
- Did he have a gun in his pocket?
- Did he wave one around?
- Did he just announce, "I've got a gun"?
- Did he shoot someone?
I've learned to ignore that, as you do when reviewing these - except maybe for a form motion. Sure, there's a Sixth Amendment (and Section 10, Article I of the Ohio Constitution) issue when the Grand Jury doesn't charge some particular action involving the firearm, but the courts don't find that problematic.
First, the victim (if there actually was one), was probably shot to death, so you know that the actual charge is "used it to facilitate the offense." (You'll get confirmation of a sort from the coroner's report.) Second, if you don't know what's supposed to have been done with the gun, the courts have told you that your remedy isn't to get that part of the indictment dismissed, or even to get a look at the grand jury transcript, but to get the prosecutor to give you a bill of particulars saying what the state intends to prove (regardless of what the Grand Jury might have thought. Fuck the grand jury.
As I say, you ignore those problems. You can tell what the claim is, after all, and for the most part Ohio courts don't think the grand jury requirement actually requires much of anything. And hell, we don't have that many murders in Lucas County. When you get the case, maybe before, you go on line and get the news stories so you know what's supposed to have happened.
No, it wasn't that. It was the specification itself.
A bit of context.
The guy was charged with Aggravated Murder. The potential sentences are set out in Section 2929.03(A) of the Ohio Revised Code.
(A) If the indictment or count in the indictment charging aggravated murder does not contain one or more specifications of aggravating circumstances listed in division (A) of section 2929.04 of the Revised Code, then, following a verdict of guilty of the charge of aggravated murder, the trial court shall impose sentence on the offender as follows:
(1) Except as provided in division (A)(2) of this section, the trial court shall impose one of the following sentences on the offender:
(a) Life imprisonment without parole;
(b) Subject to division (A)(1)(e) of this section, life imprisonment with parole eligibility after serving twenty years of imprisonment;
(c) Subject to division (A)(1)(e) of this section, life imprisonment with parole eligibility after serving twenty-five full years of imprisonment;
(d) Subject to division (A)(1)(e) of this section, life imprisonment with parole eligibility after serving thirty full years of imprisonment;
(e) If the victim of the aggravated murder was less than thirteen years of age, the offender also is convicted of or pleads guilty to a sexual motivation specification that was included in the indictment, count in the indictment, or information charging the offense, and the trial court does not impose a sentence of life imprisonment without parole on the offender pursuant to division (A)(1)(a) of this section, the trial court shall sentence the offender pursuant to division (B)(3) of section 2971.03 of the Revised Code to an indefinite term consisting of a minimum term of thirty years and a maximum term of life imprisonment that shall be served pursuant to that section.
Because none of the exceptions apply, if the accused person is convicted the judge gets to pick one of four sentences of life in prison. Three allow the parole board to think about letting her out some day - sometime after no fewer than 20 years, after no fewer than 25 years, or after no fewer than 30 years. The fourth choice is LWOP, Death in Prison.
The judge, and at the time of the indictment, the prosecutor doesn't know who the judge will be, gets to choose one of those sentences on any basis she wants. Some bases are illegal (because he's black, say, or because the family of the victim bought the judge a condo in the Bahamas a few days before the trial), but as long as the judge doesn't actually announce that she's imposing the sentence for an illegal reason, it's OK for her to do so. Judges, after all, all act with absolute integrity all the time - and announce it when they don't - and to suggest otherwise is to violate the Mark Gardner Rule.
Let's say the judge chooses life with parole eligibility after 20 full years. That means that the first time the Parole Board can consider letting the guy out of prison is after he's been in custody for 20 years. The Board doesn't have to let him out then, of course. And in fact, it won't. Just doesn't happen.
He killed someone f'rgodssake. Shit. We'll think about it again in 5 years. And then 5 more.
And 10 years later?
Well, I suppose it's possible. Call it a qualified maybe.
Life with 25, same thing: 10 years of flops minimum.
Life with 30: ditto.
LWOP? Well, that's just death.
OK, that's the context. Here's what caught my attention about the gun spec:
Why is it there? I mean, let's be honest about this.
The gun spec carries a mandatory consecutive and prior 3 year prison sentence. That is, if the guy is convicted of Aggravated Murder and also of the spec (and if he's not convicted of the Agg Murder, he can't be convicted of the spec), he gets one of those life sentences but before it begins he has to serve 3 full years. So the real sentencing options will be
23 years to the Board
28 years to the Board
33 years to the Board
3 years and then Death
Is there really much difference? Especially when we all know that the Agg Murder sentence is likely to be LWOP.
I've written before about sentences that can't be served (here, for instance). This isn't, at least technically, one of them. After all, if the guy gets 23 to the Board he could, in theory, be released after a (mere?) 23 years in prison. Depending on age and health and the vagueries of chance, he could live that long.
Will the extra 3 years make a difference?
Will they deter anyone from committing a murder "with prior calculation and design"? Will a killer do the calculus and make the decision?
Sure, I'm going to kill this guy. That's the plan, and I aim to follow it. I'll take my chance on 20 years to the Board, but not 23. So I'll leave the gun home and use a bomb or a knife or a garotte or just beat him to death. Hah! Then I've got a chance of 20 to the Board rather than 23.
And will anyone care. After all, the victim will end up just as dead.
The extra three years won't deter. And it won't send any lesson - except maybe that we think some ways of killing are worse than others, which may be true, but I can think of lots nastier ways to kill someone than shooting him. It's additional punishment, I suppose (if it's realistically going to make a difference in how long the guy serves if convicted), but not much on an Agg Murder sentence and maybe none.
I get the point of a gun spec. We don't want bad guys waving guns around because they have a tendency to go off. A robbery with a gun is perhaps more likely to end up with a seriously injured - or dead - person than a robbery with a knife. (That's an empirical question. I don't actually know the answer, but let's just assume it's true for the moment.) But a murder always involves someone ending up dead. Gunshot murder isn't, in any rational way, more serious than murder by other means, and as I say, maybe less so if we measure seriousness by, say, pain inflicted.
A gun spec in an Agg Murder case? Piling on for the sake of piling on.
Part of the theory behind our system of criminal justice is that it's supposed to be rational. Each piece is supposed to make sense, both on its own and as part of the larger system. It doesn't operate that way in the real world, of course, but that doesn't mean we shouldn't call it out for the failures.
Look, I've said before that I hate guns and wish they could all be banned (here, for instance). But my policy preference is essentially irrelevant since the Constitution takes a decidedly different view. And regardless of your view of firearms, the issue I'm addressing isn't guns but rational criminal justice charging and sentencing.
Here's the question.
Should charges (or a specification, in this case) be brought simply because it's allowed?
Here's the answer:
*Tip to lawyers, trial and appellate: You should always review the indictment or other charging instrument, not just because you need to know exactly what the charges are (and it's astonishing how often lawyers actually don't know and try to defend against charges they thought were brought against the client but were not), but also because the government screws them up sometimes - and sometimes in ways that matter.