|
|
State of Ohio v. Reginald Warren, Case no. 2006-2148
8th District Court of Appeals (Cuyahoga County)
State of Ohio v. Kenneth Blackburn, Case no. 2007-0519
11th District Court of Appeals (Ashtabula County)
Randall J. Dohme v. Eurand America, Inc., Case no. 2007-0640
2nd District Court of Appeals (Montgomery County)
State of Ohio v. Daniel Brady, Sr., Case no. 2007-0742
11th District Court of Appeals (Ashtabula County)
State of Ohio v. Reginald Warren, Case no. 2006-2148
8th District Court of Appeals (Cuyahoga County)
ISSUE: Do two provisions of Ohio’s criminal sentencing laws combine to violate a defendant’s constitutional right to due process when they are applied to (1) mandate that the defendant be charged and prosecuted as an adult for a crime he committed at the age of 15, and (2) require the trial court to sentence the defendant to life in prison for the adult offense of which he is subsequently convicted, barring any discretion of the trial court to consider the defendant’s age at the time of the offense as a mitigating factor.
BACKGROUND: In 2004, Reginald Warren of Cleveland was arrested and charged with multiple adult counts of aggravated rape, gross sexual imposition and kidnapping for a series of incidents in which he sexually molested a nine-year-old girl 16 years earlier, in 1988, when Warren was 15. Warren was not arrested or charged with these offenses as a juvenile because the victim did not report the crimes to police until 2004. He was found guilty on multiple counts including the forcible rape of a child under the age of 13, for which he received a mandatory sentence of life imprisonment.
Under R.C. 2152.02(C)(3), any juvenile who commits a crime that would be a felony if committed by an adult and who is not “taken into custody or apprehended” for that offense until after his or her 21st birthday must be charged and prosecuted for that crime as if it had been committed by an adult. Because Warren was found guilty of forcible rape in a case where the victim was under the age of 13, R.C. 2907.02 required the trial court to impose a sentence of life imprisonment for that conviction, and barred the sentencing judge from any consideration of the defendant’s age at the time of the offense as grounds for a less severe sentence.
Warren appealed his convictions and sentences. The 8th District Court of Appeals vacated several convictions and the sentences based on those counts, but affirmed convictions for a single count of child rape, four counts of gross sexual imposition and five counts of kidnapping. The court of appeals also rejected Warren’s claim that his life sentence on the rape count was unconstitutional under the rationale of a 2005 U.S. Supreme Court decision, Roper v. Simmons, which held that the death penalty may not be applied to offenders whose crimes were committed before they reached the age of legal majority.
Attorneys for Warren now ask the Supreme Court to rule that the combined effect of the statutes requiring him to be charged as an adult and subsequently mandating a life sentence with no opportunity for mitigation based on his age are unconstitutional as applied in this case. While acknowledging that the U.S. Supreme Court’s holding in Simmons specifically addressed the imposition of the death penalty against juveniles, they point to discussion in the Simmons decision of the historical principle that a juvenile who commits a crime is presumed to be less culpable than an adult committing the same offense. They argue that the rationale underlying Simmons is that criminal courts must at least consider and give some weight to the “diminished blameworthiness”of a youthful offender before imposing the same sentence they would impose on an adult.
They point out that the long delay in prosecuting Warren’s offenses that caused him to be charged as an adult rather than as a juvenile was not the result of any additional fault or misconduct on his part, but rather was the result of a 16-year delay by the victim in reporting the crime. They argue that the lower courts’ application of the two disputed statutes in this case resulted in the arbitrary and irrational outcome that Warren received a much more severe sentence than could have been imposed against an identical 15-year-old offender who committed the identical crime on the same day, but who happened to be charged and convicted of those crimes before his 21st birthday.
The Cuyahoga County prosecutor’s office, representing the state, urges the Court to affirm Warren’s life sentence. Prosecutors argue that the U.S. Supreme Court’s Simmons decision applies exclusively to bar the execution of minors in capital murder cases, and point to a series of court decisions upholding the application of R.C. 2152.02 to prosecute defendants who escape arrest for juvenile offenses until they have turned 21 under adult laws and adult sentencing guidelines. They say the state law mandating a life sentence for child rape was properly applied in this case, and dispute Warren’s claim that he had a constitutional right to have the trial court consider his age as a mitigating factor despite plain language in the sentencing statute that bars mitigation in child rape cases.
Contacts
Erika Cunliffe, 216.443.7580, for
Reginald Warren.
Jon Oebker, 216.443.8146, for the State of Ohio and Cuyahoga County prosecutor’s office.
State of Ohio v. Kenneth Blackburn, Case no. 2007-0519
11th District Court of Appeals (Ashtabula County)
ISSUE: When the state dismisses a criminal indictment and subsequently files different charges against a defendant based on the same conduct, should a period of continuance that was requested by the defendant to prepare for trial on the original charges be included or excluded when calculating the 270-day “speedy trial” deadline by which the state must bring the defendant to trial?
BACKGROUND: Under R.C. 2945.71, Ohio’s “speedy trial” statute, the state must bring a criminal defendant charged with a felony to trial within a maximum of 270 days after the date of arrest. Failure by the state to try a defendant within the statutory time limit is grounds for dismissal of the charges. The statute provides, however, that a defendant may “waive” (voluntarily give up) his right to be tried within the 270 day limit; and the statute also provides that the speedy trial “clock” in a case is “tolled” (stopped from running) during any period of delay in pretrial proceeding that is initiated by the defendant.
In this case, Kenneth Blackburn was arrested in December 2004 and indicted by the Ashtabula County Court of Common Pleas on Feb. 22, 2005, on felony charges of conveying illegal drugs into a detention facility and a related conspiracy count. The state subsequently dismissed that indictment on Dec. 5, 2005. A new indictment was then obtained against Blackburn on Feb. 6, 2006, charging him with two counts of drug trafficking and one count of conspiracy to commit drug trafficking. All of the new charges were based on the same conduct cited in the original indictment.
On March 13, 2006, Blackburn filed a motion to dismiss the new charges pending against him on the ground that he had not been brought to trial within the speedy trial time limit dating back to his arrest in December 2004. The trial court granted the motion to dismiss. On review, the 11th District Court of Appeals affirmed the ruling of the trial court.
The Ashtabula County prosecutor’s office, arguing on behalf of the state, now asks the Supreme Court to reverse the lower court decisions and reinstate the charges against Blackburn. Prosecutors assert that the trial court erred in calculating the “countable” days against the speedy trial deadline because it counted 120 days, from June 7 to Oct. 4, 2005, during which proceedings in the original case against Blackburn were continued based on a motion filed by Blackburn – days they say the court should not have counted toward the 270-day limit. They argue that a Supreme Court of Ohio decision cited by both the trial court and 11th District, State v. Adams (1989), should not have been applied to this case because the defendant in Adams had voluntarily waived his speedy trial right based on the assumption that he would be tried on a known charge, but later was indicted on a different charge for which he might not have waived the deadline. In this case, they point out, Blackburn did not waive his speedy trial rights but rather moved for a continuance in order to retain a new attorney. They assert that a defendant-initiated motion for such a continuance should have stopped the running of the speedy trial clock regardless of whether the state later opted to dismiss the original indictment and charge the defendant with different offenses.
Attorneys for Blackburn urge the Court to affirm the rulings of the trial court and 11th District dismissing the charges against him on speedy trial grounds. They contend that, contrary to the state’s arguments, the Supreme Court’s decision in Adams held that, when the state belatedly introduces new charges against a defendant based on facts that were known at the time of his arrest, the 270-day speedy trial time limit runs from the original arrest date, and any days that were initially waived or tolled based on the defendant’s actions prior to the filing of the new charges must be counted toward the deadline for bringing him to trial on the new charges.
Contacts
Shelley M. Pratt, 440.576.3662, for
the State of Ohio and Ashtabula County prosecutor’s office.
William P. Bobulsky, 440.998.4214, for Kenneth Blackburn.
Randall J. Dohme v. Eurand America, Inc., Case no. 2007-0640
2nd District Court of Appeals (Montgomery County)
ISSUE: Does state and federal case law that bars the retaliatory firing of a worker for reporting workplace safety and environmental hazards apply to an engineering supervisor who, after raising fire safety concerns with his employers, was fired for discussing with an insurance company representative a fire safety report that was missing from the company’s computer after being directed by his employer to greet the representative, but to leave any discussions with him to higher management?
BACKGROUND: Randall Dohme was fired from his position as an engineering/maintenance supervisor at a Dayton-area manufacturing plant operated by Eurand America Inc. for allegedly violating an email directive that employees in his department should leave any discussions with an insurance company auditor who was inspecting the facility to certain specified management representatives. Dohme filed a wrongful discharge suit against Eurand in the Montgomery County Court of Common Pleas. His complaint alleged that his firing was in retaliation for a series of incidents in which he had raised issues about the plant’s fire safety equipment and procedures that went unaddressed, culminating in a brief conversation he had with an insurance auditor visiting the plant in which Dohme informed the auditor that a fire safety report was missing from the plant’s computer records.
Eurand entered a motion seeking summary dismissal of Dohme’s suit on the basis that he was an “at will” employee and that he was fired for violating a direct order not to engage in discussions with a private insurance representative, not for reporting alleged safety violations either to the employer or to a government agency. The trial court granted summary judgment in favor of Eurand, finding that the facts of the case did not present the required elements of a “whistleblower” claim for wrongful discharge against the public policy of the state.
Dohme appealed. The 2nd District Court of Appeals reversed the trial court’s grant of summary judgment and remanded the case for further proceedings. The appellate panel held that the facts asserted in Dohme’s complaint, if proved, were sufficient to support a claim that he had been wrongfully fired for actions advancing the public policy of the state that workers should make good-faith efforts to identify and remedy suspected health, safety and environmental hazards in the workplace. Eurand appealed the 2nd District’s decision, and the Supreme Court has agreed to hear arguments in the case.
Attorneys for the employer point to prior court decisions that they say have limited “whistleblower” wrongful discharge claims to cases in which it is shown that an employee was fired for reporting a specific safety or environmental hazard to the employer itself or to a governmental agency with responsibility for investigating and correcting the alleged hazard. They assert that the conversation that resulted in Dohme’s firing was not an attempt to identify a safety hazard but rather focused on Dohme’s belief that the missing report had been deleted in an attempt to “set him up” for demotion. They also contend that, even if Dohme’s statements were deemed to be safety-related, they would not exempt him from the general application of the “employment at will” doctrine because they were addressed to a private insurance company representative, not to Eurand officials or to a government regulatory agency.
Attorneys for Dohme urge the Court to affirm the 2nd District’s ruling that, viewed in the context of multiple prior reports and complaints Dohme had made to management alleging broken and insufficient fire safety systems, his conversation with the insurance auditor disclosing a missing fire safety report qualified as an attempt to disclose and seek a remedy for a safety hazard at the plant. They also urge the Court to affirm the 2nd District’s holding that a claim for retaliatory firing does not require that an employee have reported a hazard to a governmental entity, but merely that the firing is contrary to the public policy encouraging workers to identify and seek remediation of safety hazards. They point out that insurance companies play a major role in furthering workplace safety by adjusting their premiums according to the presence or absence of effective safety equipment and procedures, and argue that alerting an insurance auditor about a hazard should not be excluded from the range of “whistleblower” actions that are protected against retaliatory firing.
Contacts
Todd D. Penney, 513.984.2040, for
Eurand America Inc.
David M. Duwel, 937.297.1154, for Randall Dohme.
State of Ohio v. Daniel Brady, Sr., Case no. 2007-0742
11th District Court of Appeals (Ashtabula County)
ISSUE: Did the trial court hearing a child pornography case abuse its discretion in granting a defense motion to dismiss the charges on due process grounds after federal agents seized discs containing the digital images at issue in the case from the home of an expert witness appointed by the court to assist the defendant, and the state subsequently refused to provide the defendant with new copies of the disputed images, requiring instead that defense counsel and its expert must conduct any review or manipulation of the images using computer equipment available at the prosecutor’s office.
BACKGROUND: Daniel Brady was charged in the Ashtabula County Court of Common Pleas with multiple counts of pandering obscenity involving a minor and pandering sexually oriented matter involving a minor based on the discovery of pornographic images on his computer that appeared to depict real children in the nude or engaging in sexual activity.
In pretrial pleadings, Brady asserted that he believed the pictures were computer-generated or computer-altered digital images that did not depict real children, and therefore were not illegal. He also argued that current technology has made it impossible for an average person to determine whether a digital image is of a real child or whether some or all of the content of an image has been artificially generated or altered to merely appear that a child was involved. Brady requested that the court appoint a digital imaging expert to assist in his defense, and that the expert be provided with copies of the images found on Brady’s computer in order to determine whether they had been computer-generated or computer-altered – or whether it was possible even for an expert to make such a determination.
The court granted the motion and appointed a digital imaging expert, Dean Boland, who had served as an expert witness in several prior child pornography cases. (Boland, an attorney, is currently serving as Brady’s appellate counsel). Shortly after receiving seven compact discs containing the images from Brady’s computer from the prosecutor, Boland was served by F.B.I. agents with a federal search warrant alleging that he was suspected of receiving, possessing and sharing child pornography. The agents seized the compact discs from the Brady case and other digital files stored on Boland’s computer. When defense counsel asked for new copies of the images from Brady’s computer for the defense expert to analyze, the state refused, offering instead to allow Brady’s attorney and expert to view the images, but requiring them to do so using computer equipment at the prosecutor’s office.
Brady subsequently filed a motion to dismiss the case on due process grounds, arguing that Brady had a constitutional right to the assistance of an expert witness, but that the FBI’s seizure of the evidence and an ongoing threat of federal prosecution against the defendant’s expert if he received, possessed, copied or otherwise manipulated the disputed images made it impossible for Brady to obtain a fair trial. The trial court granted the motion to dismiss. On review, the 11th District Court of Appeals voted 2-1 to affirm the action of the trial court.
The state, represented by the Ashtabula County prosecutor’s office, now asks the Supreme Court to overturn the lower court orders and reinstate the charges against Brady. They assert that the trial judge misapplied Rule 12 of the state’s Rules of Criminal Procedure, which they say allows dismissal of a criminal indictment prior to trial only if the defendant can show material defects in the indictment itself. They argue that the trial court went beyond that limitation by granting what amounted to “summary judgment” in a criminal case based not on the substance of the charges but rather on what they call “speculation” about the possible impact on Brady’s defense of denying unlimited access to the digital files at issue to the defense expert.
Attorneys for Brady point to language in Criminal Rule 12 that they say permits pretrial dismissal of a criminal case based upon matters “capable of determination without the trial of the general issue,” and that allows a trial court ruling on a pretrial motion to dismiss a criminal charge to consider not only the words within an indictment but also “briefs, affidavits, the proffer of testimony and exhibits, a hearing, or other appropriate means.”
In this case, they contend, the trial court acted within its discretion in determining that, based on the digital evidence advanced against Brady, his constitutional right to a fair trial required that he have the assistance of a digital imaging expert able to possess and examine child pornography and even to artificially create trial exhibits that appeared to depict children in the nude or in sexual situations. Because Ohio’s child pornography laws contain a specific exemption from state prosecution for persons who must access or possess child pornography as part of judicial proceeding, but federal law contains no such “judicial exception,” they say, it was not speculation but a demonstrable fact that no defense expert would be able to provide the assistance to which Brady was entitled without violating federal law and exposing the expert to criminal charges. Under that unique set of circumstances, they assert, it was not an abuse of discretion for the judge to make a pretrial determination that “without the trial of the central issue,” a direct conflict between state and federal child pornography laws made it impossible for Brady to receive a fair trial.
As a solution to the dilemma presented in this case, defense counsel suggests that the Supreme Court could make a finding that the federal child pornography law does not preempt Ohio’s statute, and that Ohio courts may therefore apply state law to allow the limited possession, viewing and manipulation of such material necessary to conduct judicial proceedings without violating federal law. They suggest that such an order could then be the basis for a declaratory judgment action in federal court to settle the question.
Contacts
Shelley M. Pratt, 440.576.3662, for
the State of Ohio and Ashtabula County prosecutor’s office.
Dean Boland, 216.529.9371, for Daniel Brady.
These summaries are prepared by the Office of Public Information solely to help news reporters determine if they want to cover the arguments. The summaries are not part of the case record and are not considered by the Court at any point during its deliberations.
Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.