Law Day Theme – Miranda: More than Words

In 1966, in the 5-4 decision of Miranda v. Arizona, the Warren Court fleshed out the Fifth Amendment by requiring warnings to be given before a defendant in custody could be questioned: 

“You have the right to remain silent, anything you say can be used against you in a court of law, you have the right to an attorney, and that if you can’t afford one a lawyer will be appointed for you before questioning.”

Miranda is still vital. In the 12 years that I’ve been on the Ohio Supreme Court, we’ve cited Miranda over 275 times. The case comes up whenever statements have been made in a criminal case or someone’s questioned in custody without counsel. Judges see it in motions to suppress.

 

For the Ohio Supreme Court’s most recent pronouncement, read State v. Barker, released on April 28, 2016. Just because a juvenile was videotaped, we couldn’t say his confession was automatically voluntary. We held this statutory presumption to be unconstitutional and said that the prosecution must always prove a knowing, intelligent, and voluntary waiver before allowing a statement into evidence.

 

I would like to broaden the Law Day Theme to include another protection of words. Miranda is based on the Fifth Amendment protection against self-incrimination, meaning the government can’t force speech. Conversely the government usually can’t shut us up, either. The First Amendment doesn’t allow government to squelch the language of a speaker, no matter how coarse, offensive, or repulsive.

 

The right is relevant during this campaign season. Americans have never been polite political animals. Insults aren’t new. The raw nerves of democracy have been jangling away years ago. 

 

Campaigns of 19th Century

In 1800, John Adams challenged by his vice president, Thomas Jefferson, was called a "hideous hermaphroditical character, which has neither the force and firmness of a man, nor the gentleness and sensibility of a woman." Jefferson was called a “weakling, atheist, libertine, and coward” and there were rumors of his long-term liaison with Sally Hemings.

 

John Quincy Adams and Andrew Jackson faced off twice with the first election considered by Jackson’s followers to be a “corrupt bargain” because candidate Henry Clay threw his support to Adams in exchange for the position of Secretary of State.

 

Their second race in 1828 was ugly. A newspaper wrote “General Jackson’s mother was a common prostitute, brought to this country by British soldiers!” Rumors swirled that Jackson’s wife Rachael was a bigamist because her divorce had not gone through when she married Jackson. Jackson was accused of adultery and living in sin. Adams was labelled a pimp, and it was said his success in Russia was a result of his providing the Czar with the services of an America woman. He was also accused of gambling in the White House. 

 

Jackson won, but his wife died shortly before his inauguration. Denied a second term, Adams later became a congressman and successfully defended 39 African captives in the famous Amistad case.

 

In 1884, Grover Cleveland dealt with the revelation that he had fathered a son out of wedlock, that the child had gone to an orphanage, and that the mother had been driven into an asylum. Even though Cleveland eventually admitted his “illicit connection” he denied fatherhood – he said he was only doing his duty in finding a home for the child and giving him his name.

 

Current Speech Protection

Justice Oliver Wendell Holmes wrote “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Is the “marketplace of ideas” still a valid idea?

 

If so, unfortunately, some of the internet’s bread is very stale and some twitter fruit is very rotten. Just look at internet comments – common civility is gone.   Ugly thoughts that may have been hidden away once now have permission to be belched out in public. And those who disagree are crudely insulted and demonized.

 

When did it happen that anger, grievance, and resentment of others would drown out rational discussion?

 

The anti-intellectual soundbite needs to be challenged. So does the idea that any opinion, no matter how outright wrong, is just as valid as a considered judgment based in fact. And as the U.S. Supreme Court said in Citizens United, “Government can’t police the line between truth and falsity and between valuable speech and drivel.” Since government can’t distinguish based on content of political speech, who can change the tenor of discourse? Isn’t it our duty to try to encourage free exchange of ideas uninhibited by hate or rage?

 

We hear “It’s a free country,” and thank God that’s so. Law Day is a time to celebrate protection of “more than words” – the Miranda decision protects silence of one while in custody and the First Amendment protects our ability to speak.  

 

NOTICE: Free Online Drug Court Training for Court Professionals

The National Association of Drug Court Professionals released a new online course titled “Educating Drug Courts on Medication Assisted Treatment.”

The free course is funded by the White House Office of National Drug Control Policy. It’s designed to give drug and other treatment courts the tools they need to ensure best practices related to medication assisted treatment. The course includes understanding what this treatment is, how it can be used, and its legal ramifications.

The online course is timely as courts across the country will be celebrating National Drug Court Month, which begins on May 1. According to the Association of Drug Court Professionals, there are more than 2,900 drug courts across the nation serving about 150,000 individuals each year.

These courts are crucial to criminal justice reform and are often the most effective strategy to reduce substance abuse, crime, and repeat offenses.

Our current opioid crisis highlights the need for access to new and creative types of treatment of drug addiction. Drug and other treatment courts must ensure every participant has access to the full range of evidence-based treatment when it is determined to be medically needed.

 

Thinking of International Cooperation

Just this week, a judge and nine lawyers from Afghanistan were able to watch oral arguments in four cases heard by the Ohio Supreme Court in the Thomas J. Moyer Judicial Center. Afterward, the group spent time with Chief Justice Maureen O’Connor discussing the differences between the U.S. and Afghan court systems.

Both the Ohio Judicial College and National Judicial College have sponsored programs that allow judges from the United States to periodically receive judges and attorneys from other countries and sponsor them in training. Judges from Ukraine, Russia, Libya, Kazakhstan, Kyrgyzstan, Turkmenistan, Armenia, and Serbia have toured the nation’s court system, including here in Ohio and have marveled at our Supreme Court building. 

Visits have varied and have included more than judges. For example, members of the China International Economic Trade and Arbitration Commission learned about dispute resolution during a visit to Ohio in 2007. A 2009 Korean delegation studied the administration and use of jury trials. The Serbian delegation in 2012 learned about asset forfeiture, and Franklin County judges presented a program on commercial dockets to a Turkmenistan group. 

Twice in 1995, I had the wonderful opportunity to travel to Russia and Ukraine after the breakup of the Soviet Union to teach programs designed to introduce the U.S. legal system and encourage judicial independence. Many students were fascinated to hear that people believed in the rule of law and that American judges had no armies to enforce their opinions. They were surprised that we didn’t have to call party bosses to decide how to rule in a particular case. They were also amazed that someone could actually sue the government. 

So many times we take our system of law for granted. During this primary season, when politics seems to expose the rawer nerves of democracy, it’s not a bad idea to remember that when we are viewed from other places, we appear to be very fortunate and that the sharing of ideas benefits all of us.

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Judicial Seats on March Primary Election Ballot

One week from today, Ohioans will have the opportunity to exercise their right to vote as they go to the polls on Tuesday, March 15 for the primary election.

In a previous post, I’ve mentioned Judicial Votes Count and the many resources available on the website for voters who’d like to learn more about the candidates for judge and justice. The website includes biographical information about the judicial candidates, including the candidates’ reasons for wanting to serve on the bench.

There are 145 judicial races on next week’s primary ballot, including three on the Ohio Supreme Court.

Twenty-seven court of appeals seats are also up for election this year. Before being elected as a Supreme Court justice, I served as a judge on the Sixth District Court of Appeals, as well as in common pleas and municipal court. I was asked to provide some insight in to the appeals court process in a video produced for the Judicial Votes Count website. That video, along with videos about the Supreme Court and common pleas courts, help voters understand the functions of each court.

Judges play an important role in our society by making decisions that affect our lives every day and in countless ways. Become more informed about these important offices by visiting judicialvotescount.org. Then, please vote!

Choosing a Justice – U.S. vs Ohio

U.S. Supreme Court Justice Antonin Scalia’s death on Feb. 13 has led to much speculation about who will replace him. Based on the Constitution, justices on the U.S. Supreme Court are nominated by the president and those nomination must be confirmed by the Senate.

 

There are nine justices on the U.S. Supreme Court who serve lifetime terms. Justice Elena Kagan was the last Supreme Court justice appointed to the bench back in August 2010 by President Barack Obama. The longest serving justice is Justice Anthony Kennedy, who took his seat in 1988, and was nominated by President Ronald Reagan. The newest appointed justice will become the 113th to serve on our nation’s Supreme Court.

 

The Washington Post recently published a helpful infographic that explains the path of U.S. Supreme Court appointments.

 

 

The president also nominates candidates for federal judgeships subject to the Senate’s approval. As of 2014, there are more than 625 active judges who serve federal district courts and nearly 175 judges who serve federal courts of appeals. All federal judges enjoy lifetime terms.

 

In contrast, the seven justices on Ohio’s highest court are elected in statewide elections. We are not appointed, and we serve six-year terms before standing for re-election. The Ohio governor can appoint a justice for vacancies that occur between elections, such as for a retirement or death. In the rare instance that a justice on the Ohio Supreme Court must be appointed, the governor makes the decision alone – it doesn’t have to be confirmed by the Ohio General Assembly. The same holds true for other state courts.   If a judge leaves in the middle of a term, the governor appoints someone to fill the vacancy until voters decide who will retain the seat in the next election.

 

Only 21 states have elections, both partisan and nonpartisan. Ohio has nonpartisan general elections. In 12 states, the justices are appointed for life and in the remaining 17 states the justices are elected after an initial appointment.

 

Voters choose two Ohio Supreme Court justices at the general election in even-numbered years. In the year when the chief justice runs, voters pick three members of the Court. A person must be an attorney with at least six years of experience in the practice of law to be elected or appointed to the Court.

 

Three justices are up for election this year. Chief Justice Maureen O’Connor has no opponent, and Justice Paul E. Pfeifer and I are no longer eligible to seek re-election due to age restrictions, so our Court will welcome two new members in 2017.

 

Now we will have to wait and see who will become the next U.S. Supreme Court justice and who will become the new justices on our state’s Supreme Court.

 

 

Sources: American Bar Association and United States Courts

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Annual Report on Discipline is Released

Do you ever wonder what happens when a lawyer or judge does something illegal or gets into serious trouble?  In most states, there is a disciplinary group that handles complaints against lawyers and judges. Ohio is no exception.

The Board of Professional Conduct, formerly called the Board of Commissioners on Grievances & Discipline, just released its 2015 annual reporton Feb. 17, noting a nearly 20 percent decrease in active pending cases.  This board, made up of 28 volunteer commissioners appointed by the Supreme Court of Ohio, includes judges, lawyers, and members of the public. The board hears complaints against attorneys and judges for criminal behavior or for violations of the ethical codes of the Ohio Rules of Professional Responsibility and the Code of Judicial Conduct.

Disciplinary cases can arise in a number of situations ranging from a lawyer’s neglect of client matters to a felony conviction. When a complaint is made and has probable cause, a disputed case will be heard before a hearing panel of three commissioners, who then write an opinion to present to the full board. After consideration by all commissioners, the report is certified to the Supreme Court with both panel and board recommendations.

The justices will hear oral arguments about the case and then decide if the lawyer or judge will receive the recommended sanction, or a greater or lesser penalty, which might include a professional license suspension or a probationary period with conditions. License suspensions may last for six months, one or two years, or for an indefinite period.  A disbarment, which is the most serious penalty available, means that the attorney or judge will never practice law in Ohio again.

According to the 2015 annual report, there were 48 hearings and 61 certified reports and the board disposed of 102 cases, a 21.4 percent increase in dispositions from 2014.

More information can be found here.

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2016 Civics Education Essay Contest

The National Center for State Courts (NCSC) is now accepting entries for its free 2016 Civics Education Essay Contest in honor of Law Day, May 1. This year commemorates the 50th anniversary of Miranda v. Arizona, the 1966 U.S. Supreme Court decision that mandates what notifications police must give before questioning a criminal suspect. The statements regarding the right to remain silent and the right to an attorney, among others, are commonly known as Miranda Rights.

Third through 12th graders are being asked to consider, “What are the Miranda rights and why are they important?” Teachers are also encouraged to incorporate the actual opinion of Miranda v. Arizonainto their lesson plans. The 1966 case determined that when police take a person into custody, they must be told before they are questioned of their Fifth Amendment right not to make any self-incriminating statements.

The contest is divided into three groups: 3rd-5th graders; 6th-8th graders; and 9th-12th graders. Entries for all grade levels should be typed, 100 words or less, and submitted online at www.ncsc.org/contest. Handwritten submissions will also be accepted and may be sent to:

National Center for State Courts
c/o Deirdre Roesch
300 Newport Ave.
Williamsburg, Va. 23185

It would be great to have an Ohio student as a finalist in this national event.  Good luck to all!

ALL SUBMISSIONS ARE DUE on Feb. 26, 2016.

PRIZES:

·         First place winners will receive a $100 Amazon gift card.
·         Second place winners will receive a $50 Amazon gift card.
·         Third place winners will receive a $25 Amazon gift card.

All winners will receive a classroom set of NCSC’s graphic novel coloring book series the Justice Case Files.

Complete contest details are available at www.ncsc.org/contest.

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2015 Ohio Supreme Court Case Highlights

As we start a new year, I think it is worthwhile to review the Supreme Court of Ohio’s opinions of the last year. According to our statistics, more than 300 opinions were written. Some related to technical issues of procedure or interpretation of statutes, others covered discipline of attorneys or judges, and many dealt with the constitutional rights of those injured or accused of crime. 

Among cases of particular interest to the public were:

• An opinion modifying gross-sexual-imposition We ruled that part of Ohio’s gross-sexual imposition law was unconstitutional and struck down the provision that mandated prison terms when evidence other than the alleged victim’s testimony corroborated the offense. State v Bevly, 2015-Ohio-475.

• An opinion on garbage search We held that evidence from a single trash pull was enough to find probable cause for a search warrant if it corroborates information and tips on drug activity. State v Jones, 2015-Ohio-483.

• An opinion on a 911 recording In granting the Cincinnati Enquirer’s public-record request, we held that the recording of a 911 dispatcher’s return call to an emergency caller is a public record subject to release. State ex rel. Cincinnati v. Sage, 2015-Ohio-974.

• Two opinions involving the taxing of National Football League players In both cases, we rejected Cleveland’s method of taxing the pro athletes based on games that were played. The tax calculation was held to violate each player’s due process rights. Hillenmeyer v. Cleveland Bd. of Review 2015-Ohio-1623, Saturday v. Cleveland Bd of Review 2015-Ohio-1625.

• An opinion on a traffic stop We held that a traffic stop for a minor misdemeanor made by a township police officer without statutory jurisdiction or authority violates Ohio’s constitutional protection against unreasonable search and seizure. State v. Brown, 2015-Ohio-2438. 

• An opinion on charter schools In a case stemming from ongoing litigation brought by 10 Cleveland charter schools against the companies that operated and managed them, we held that an entity managing the daily operations of a charter school has a fiduciary relationship with the school it operates. Hope Academy v. White Hat Mgmt. L.L.C., 2015-Ohio-3716.

• An opinion on the Ohio Dormant Mineral Act In one of a series of cases on the subject of fracking, we held that a lease that grants oil and gas rights to another party and was recorded with the county recorder is a title transaction, but that expiration of the lease by its terms is not. Chesapeake Exploration v. Buell, L.L.C., 2015-Ohio-4551.

• An opinion upholding sex-registration We held that a 21-year-old man who had a consensual sexual relationship with a 15-year-old girl and who was categorized as a Tier II sex offender and had to verify his home address, place of employment, and school location in person every 180 days for 25 years was not subject to cruel and unusual punishment. State v. Blankenship, 2015-Ohio-4624.

These, and all of our decisions, are a matter of public record on the Supreme Court's website www.sc.ohio.gov where you may read them in full. Our website also allows you to see and hear actual arguments of the cases online and to read previews and summaries when they are published.