Ohio's Senate Bill 77: A National Model of Reform

VindicatorT H E M AG A Z I N E O F T H E O H I O A S S O C I AT I O N O F C R I M I NA L D E F E N S E L AWY E R S

SpRING 2011

Ohio’s Senate Bill 77: A National Model of Reform

Ten Commonly Asked Questions About Ohio Criminal Rule 16 The Inconvenient Truth About the Intoxilyzer 8000

Law Enforcement: There’s an App for That

Ohio Criminal Background Check Other Licensed School Employees

A Practical Approach to Use of Polygraph

Evaluating Ohio’s Life Tail Sexual Violent Predator Indictment Specification

Ethical Advertising in the Age of the Internet

Reform

2991 Magazine.indd 1 3/30/11 3:33 PM

contents

5 From the president By DAVIS STEBBInS

8 Ohio’s Senate Bill 77: A National Model of Reform

By S. MIchAEL LEAr

12 Ten Commonly Asked Questions About Ohio Criminal Rule 16

By IAn n. FrIEDMAn, ET AL.

16 The Inconvenient Truth About the Intoxilyzer 8000 Breath Alcohol Testing Instrument

By JOn SAIA

22 Law Enforcement: There’s an App for That

By rOnALD L. FrEy

26 Ohio Criminal Background Check Requirements For Individuals Employed By Educational Institutions: part II: Background Checks For Teachers and Other Licensed School Employees

By LArry W. ZukErMAn AnD S. MIchAEL LEAr

31 A practical Approach to Use of polygraph By WILLIAM EVAnS

34 Evaluating Ohio’s Life Tail Sexual Violent predator Indictment Specification: The Necessity of a Sexual Offender Violence Risk Assessment at Sentencing phase

By JOhn MATThEW FABIAn

42 Ethical Advertising in the Age of the Internets

MIchAEL n. OSErL

45 Criminal Law Update: 2010 By ruSSELL S. BEnSIng

48 Roadtrip: Liberia By ELIZABETh kELLEy

50 From the Executive Director: Susan Carr

Features

poly-Tech Associates ............................................................. 21

Interchange ........................................................................ 25

Empire Investigations ........................................................... 30

4-N-SEEKS LLC Forensic Consultancy .................................. 33

Kura & Wilford Co., L.p.A. ................................................... 40

Saia & piatt, Inc. ............................................................ 41, 49

Directions Counseling Group ................................................ 44

William Gallagher ............................................................... 47

........................................................Back cover

advertisers in this issue

2991 Magazine.indd 2 3/30/11 3:33 PM

MISSION STATEMENT

• To defend the rights secured by law of persons accused of the commission of a criminal offense;

• To educate and promote research in the field of criminal defense law and the related areas;

• To instruct and train attorneys through lectures, seminars and publications for the purpose of developing and improving their capabilities; to promote the advancement of knowledge of the law as it relates to the protection of the rights of persons accused of criminal conduct;

• To foster, maintain and encourage the integrity, independence and expertise of criminal defense lawyers through the presentation of accredited continuing legal education programs;

• To educate the public as to the role of the criminal defense lawyer in the justice system, as it relates to the protection of the bill of rights and individual liberties;

• To provide periodic meetings for the exchange of information and research regarding the administration of criminal justice.

Vindicator

BENEFITS OF THE OACDL

LISTSERVThe OACDL listserv is our most popular member benefit. This on-line forum joins over 500 members from around the state. If you have a question, post it on the listserv, and usually within minutes, you have responses from some of the most experienced legal minds in Ohio.

AMICUS BRIEFOACDL members provide amicus support for criminal cases.

CLE SEMINARSThe most up-to-date topics presented by nationally-recognized experts are available at incredible savings to OACDL members – including the annual Death penalty and Superstar Seminars.

STRIKE FORCEWith OACDL, you never stand alone. OACDL members are here to aid.

LEGISLATIONThe OACDL actively lobbies state government by providing testimony on pending bills and working with other organizations with similar interests.

LOBBYINGThe OACDL monitors pending legislation and government activities that affect the criminal defense profession.

MENTOR AND RESEARCH PROGRAMSOACDL offers a mentor program for new attorneys and resource telephone access for the assistance of all members. A membership directory is free to all members.

NETWORKINGNetworking functions allow current OACDL members and prospective members to interact. These functions are not only entertaining, but very valuable for old and new members alike.

T H E M AG A Z I N E O F T H E O H I O A S S O C I AT I O N O F C R I M I NA L D E F E N S E L AWY E R S

The Ohio Association of Criminal Defense Lawyers • 2720 Airport Drive Suite 100 • Columbus OH 43219(614) 418-1824 or (800) 443-2626 • Fax (740) 654-6097 • [email protected]

SpRING 2011

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OACDL EXECUTIVE COMMITTEE

PRESIDENT PRESIDENT-ELECTAndrew Stevenson David Stebbins301 E Main Street Office of the Federal Public DefenderLancaster, Ohio 43130 10 W. Broad Street, Suite 1020(740) 653-0961 Columbus, Ohio 43215Fax (740) 653-4342 (614) [email protected] Fax (614) 469-5999

SECRETARY TREASURERJeffrey Gamso Joseph Humpolick1119 Adams Street Ashtabula County Public Defender Office2nd Floor 4817 State Road, Suite 202Toledo, Ohio 43604 Ashtabula, Ohio 44004(419) 243-3800 (440) 998-2628Fax (419) 243-4046 [email protected]@buckeye-express.com

PUBLIC POLICY DIRECTOR IMMEDIATE PAST PRESIDENTBarry Wilford Ian N. Friedman492 City Park Ave. Ian N. Friedman & Associates, LLCColumbus, Ohio 43216 1304 W. 6th Street(614) 628-0100 Cleveland, Ohio 44113Fax (614) 628-0103 (216) [email protected] Fax (216) 556-9774www.ianfriedman.com

COMMITTEE CHAIRPERSONS

AMICUS BRIEF CLEStephen Hardwick Joseph R. Klammer(614) 644-1622 (440) 974-8484Columbus Mentor

DUI CO-CHAIR DUI CO-CHAIRRob Calesaric Tim Huey(740) 345-6454 (614) 487-8667Newark Columbus

INDIGENT DEFENSE LEGISLATIONWilliam Gallagher Barry Wilford(513) 651-5666 (614) 628-0100Cincinnati Columbus

MEMBERSHIP PUBLICATIONAnthony Rich S. Michael Lear(440) 245-2274 (216) 696-0900Lorain Cleveland

STRIKE FORCE TECHNOLOGYJay Milano Michael Hoague(440) 356-2828 (740) 369-5297Rocky River Delaware

2010 OACDL BOARD MEMBERS

* = past president+ = Executive Committee Member

Steven R. Adams(513) 929-9333Cincinnati

Sam Amendolara(330) 629-9030Youngstown

Javier Armengau(614) 443-0516Columbus

K. Ronald Bailey*(419) 625-6740Sandusky

Aaron T. Baker(216) 591-0727Cleveland

E. Charles Bates(419) 782-9500Defiance

Stuart Benis(614) 463-1551Columbus

Damian Billak(330) 740-0200Youngstown

Edmond F. Bowers(330) 725-3456Medina

Jack Bradley(440) 244-1811Lorain

Herman Carson*(740) 594-8388Athens

Anthony Cicero(937) 424-5390Dayton

Jay Clark(513) 587-2887Cincinnati

Cathy Cook *(513) 241-4029Cincinnati

Mark R. Devan*(216) 781-5245Cleveland

paris Ellis*(513) 432-0194Middletown

Ron Frey(216) 928-7700Cleveland

Ian N. Friedman*+(216) 928-7700Cleveland

Jeffrey Gamso(216) 472-2216Toledo

Dennis Gump(937) 854-4900Dayton

R. Daniel Hannon*(513) 732-2214Batavia

Michael C. Hennenberg(440) 544-2000Cleveland

Timothy Huey614) 487-8667Columbus

Joseph Humpolick(440) 998-2628Ashtabula

Elizabeth Kelley(216) 523-1113Cleveland

Richard Ketcham(614) 444-3900Columbus

Joseph R. Klammer(440) 974-8484Mentor

William Kluge *(419) 225-5706Lima

Frank Macke(614) 464-0011Columbus

Sean Maxfield(614) 445-8287Columbus

Clayton Napier*(513) 868-8229Hamilton

James phillips(614) 464-5610Columbus

Harry Reinhart*(614) 228-7771Columbus

J. Anthony Rich(440) 245-2274Lorain

Jon paul Rion(937) 223-9133Dayton

John Rion*(937) 223-9133Dayton

Charles Rittgers*(513) 932-2115Lebanon

Jon Saia(614) 444-3036Columbus

E. Scott Shaw(614) 221-6327Columbus

Jeffrey Slyman(937) 454-5544Vandalia

David C. Stebbins+(614) 469-2999Columbus

Andrew Stevenson+(740) 653-0961Lancaster

William L. Summers(216) 696-0727Cleveland

Thomas Tyack(614) 221-1341Columbus

Samuel B. Weiner*(614) 443-6581Columbus

William T. Whitaker(330) 762-0287Akron

Barry Wilford*+(614) 628-0100Columbus

Carol WrightColumbus

Larry W. Zukerman (216) 696-0900Cleveland

2991 Magazine.indd 4 3/30/11 3:33 PM

tWentY-Five Years A Great Beginning

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From the president

The seed was nourished at a series of meetings around the state in 1986 culminating in the formal selection of Jay Milano as the first president in 1987 and 1988. I was fortunate to have participated in these earliest meetings and have observed the remarkable development of the OACDL over the next twenty-five years. Now I have the honor as serving as president.

The moving forces at these early meetings were prominent long-time defense attorneys and public defenders from Cleveland, Dayton, Cincinnati, Columbus, as well the “cornstalk brigade” from many of the smaller towns and cities. We discovered that criminal defense lawyers across the state had a common purpose. At these meetings and the accompanying social events, we all developed a camaraderie that helped to fuel the development of the organization.

We all learned the benefits of being able to pick up the telephone and call a lawyer in another town to brainstorm, to request advice about the local customs or the local judges, or to refer cases. As a young lawyer in the state public defender’s office, the ability to call upon attorneys across the state was invaluable since our practice covered the entire state. Twenty-five years later all of us can all still call on each other for advice, assistance, or simply to share victories, defeats and war stories.

The listserv, the Vindicator, and the OACDL seminars are all outgrowths of the original need to share information and

develop contacts with other attorneys around the state. Twenty-five years ago there was listserv and no Internet. Communication was more basic and was often best done in person. While the end result is the same — reaching out to our brothers and sisters across the state for assistance and advice — and while the Internet certainly improves our ability to communicate rapidly and efficiently, much of the camaraderie that developed from the face to face contacts has sadly disappeared. I hope to revive some of that with a

twenty-fifth anniversary celebration in connection with the May seminar, to honor some of the founders and long-time supporters of this organization, and to re-energize our sense of

community and camaraderie that is critical to our continued development.

From the beginning, the association focused on presenting training seminars — for defense attorneys by defense attorneys. We have always relied on experienced and expert Ohio attorneys and experts as well as recognized national experts. From the beginning, this effort was supported by then State public Defender Randy Dana who set up the public defender scholarship program that continues to this day. Tim Young continues to work closely with the organization to support the scholarship program and to bring speakers to these seminars.

These seminars have been the backbone of the organization and have put the organization it the forefront of the training in the state. In the past year under the leadership of Andrew

“Strength in numbers” was the theme of the nAcDL’s call to state and local criminal

defense bars to organize and affiliate with nAcDL in 1986. From the nAcDL’s original

conference, the seed of the Ohio Association of criminal Defense Lawyers was born.

We have always relied on experienced

and expert Ohio attorneys and experts

as well as recognized national experts.

Davis Stebbins

tWentY-Five Years A Great Beginning

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vindicator 7

Stevenson, the organization brought in nationally recognized speakers such as Terrence McCarthy and Dale Cobb, while the November death penalty seminar had several nationally recognized speakers. These seminars permit defense attorneys to acquire their required CLE credits as well as the most advanced training in the company of other defense attorneys.

In addition to sponsoring the premier criminal defense seminars in the state, the OACDL has become the organization that others come to for answers about criminal law questions, whether it is commenting on rulings or legislation or providing defense representation on committees and working groups. Chief Justice Moyer called upon the OACDL to work with the Ohio prosecuting Attorneys Association to come up with a compromise plan for reforming the discovery procedures under Criminal Rule 16. Everyone is aware of the tremendous efforts of past presidents Ian Friedman and Mark DeVan and long-time public policy Director and past president Barry Wilford, among others, to bring about the significant reform to Rule 16. I once again join the long list — including the Ohio Supreme Court — who recognize the significance of this accomplishment and those who worked so hard to bring it about.

The OACDL also has representation on the Sentencing Commission (Kort Gatterdam) and OJACC (Dan Hannon and Tim Huey). Barry Wilford our public policy Director is recognized at the State House as the representative of the criminal defense bar. At the Superstar Seminar in October Chief Justice Eric Brown took time out of his busy schedule of running the Supreme Court of Ohio and running for office to stop in and say a few words of appreciation to those at the seminar.

It is appropriate here to offer my thanks to Andrew Stevenson, Immediate past president, for his successful leadership, and to all of the Board Members and Committee Chairs who keep the Association going. In particular, I would like to recognize Mike Lear for chairing

the publications Committee and putting out the Vindicator, Steve Hardwick (and Cullen Sweeney) for chairing the Amicus Committee, Jay Milano for chairing the Strike Force, Tim Huey and Rob Calesaric DUI Committee, Dan Hannon Indigent Defense Committee, Anthony Rich Membership. Randy Klammer CLE, Mike Hoague and Jeff Gamso Technology.

Finally, as I have spent most of my career litigating death penalty cases, I would like to acknowledge the efforts of Jon paul Rion in taking the initiative, along with Ohioans to Stop Executions and others, to begin a petition campaign to abolish the death penalty in Ohio. This is a long overdue movement that this organization needs to support.

I am looking forward to a great year celebrating out twenty-fifth anniversary and hope that you all will join in the celebration to build towards our second twenty-five years. n

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among other changes, SB 77 creates:

• Expansion of DNA testing and technology

• Establishment of statewide standards of biological evidence retention

• Establishment of police incentives for the recording of all interrogations from beginning to end in cases of serious crime

• A requirement for live lineups and eyewitness photo identification procedures to be conducted in double-blind fashion

• An expansion of Ohio’s post-conviction DNA testing law to allow for DNA testing to be done during the parole phase of the justice cycle

Because of the significant impact that SB 77 will undoubtedly have on Ohio’s criminal justice system, practitioners must have a thorough understanding of how the new law actually operates. What follows is an outline of some of SB 77’s most important provisions, including: DNA testing; retention of biological evidence; live and photo lineup procedures; and the recording of custodial interrogations.

1. ExPAnSIOn OF DnA TESTIng:SB 77 makes several important changes regarding the availability of DNA testing. First, SB 77 greatly expands the categories of convicted felons for whom DNA testing is available. Under prior law, Ohio, like many states, provided those convicted of a crime with limited access to DNA testing. Before the new law, a convicted felon could only submit an application for DNA testing if the felon was an “eligible inmate.”1 With the passage of SB 77, however, access to DNA testing is no longer reserved solely for those convicted felons who are considered to be “eligible inmates.” The new law replaces the term “eligible inmate” with the term “eligible offender”, thereby broadening the categories of convicted felons for whom DNA testing is available. Under the new

On April 5, 2010 Senate Bill 77, a comprehensive criminal justice reform package, was

signed into law. SB 77 stemmed from a joint project between the Ohio Innocence Project

and the Columbus Dispatch and the passage thereof was the culmination of the efforts of

many individuals, too numerous to list here.

ohio’s senate BiLL 77:A National Model of Reform

By S. MIchAEL LEAr, ESq. ZukErMAn, DAIkEr & LEAr cO., L.P.A.

S. Michael Lear

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law, DNA testing is now available to post-conviction offenders who (1) are on probation or parole, (2) are under supervised judicial release, (3) are under post-release control or community control, or (4) are on the sex offender registry.2

Second, the new law includes a sweeping provision that requires anyone 18 years of age or older who is arrested for a felony offense after July 1, 2011 to submit to a DNA collection procedure administered by the head of the arresting law enforcement agency.3 previously, Ohio law only allowed for DNA collection from those actually convicted of a crime. Not surprisingly, many civil liberties groups are reportedly opposed to this provision of the new law. Similarly, some civil liberties groups are opposed to the provision in the law that eliminates access to post-conviction DNA testing for felons who plead guilty or no contest.4

Despite these concerns, the expansion of DNA testing is a significant step towards reducing wrongful convictions and exonerating the innocent in the State of Ohio.

2. rETEnTIOn OF BIOLOgIcAL EVIDEncE:With the passage of SB 77, members of law enforcement must now follow several highly specific and uniform procedures when collecting and preserving biological evidence. First, SB 77 requires law enforcement to collect and preserve biological evidence not only at a crime scene, but also whenever a suspect who has been arrested on a felony charge is processed at a jail.5 Specifically, the head of the arresting law enforcement agency must cause the DNA specimen to be collected from the person during the intake process at the jail, community-based correctional facility, detention facility, or law enforcement agency office or station to which the arrested person is taken after the arrest.6

Second, with regard to the types of biological evidence that must be retained, SB 77 requires that, for certain specified offenses, “governmental evidence-retention entities”7 must preserve sexual assault kits and any item that contains: (1) blood, (2) semen, (3) hair, (4) saliva, (5) skin tissue, (6) fingernail scrapings, (7) bone, (8) bodily fluids, or (9) any other identifiable biological material that was collected as part of an investigation and might reasonably incriminate or exonerate a suspect for certain specified periods of time. See, ORC 2933.82.

Third, “under the new bill, the “specified offense” for which biological evidence must be retained include the crimes of aggravated murder, murder, voluntary manslaughter, first and second degree felony involuntary manslaughter, first and second degree felony aggravated vehicular manslaughter, rape, attempted rape, sexual battery and certain gross sexual imposition offenses (ORC 2907.05(A)(4) or (B)). See, ORC 2933.82(B).

Finally, with regard to how long the biological evidence must be preserved, in cases involving aggravated murder or murder, evidence retention entities must secure the evidence “for the period of time that the offense or act remains unsolved.”8 For other offenses where the case remains unsolved, however, the biological evidence must be maintained for thirty (30) years from the time of collection.9 Similarly, in cases resulting in a conviction, the evidence must be secured until the earlier of either the date on which the offender fully completes his sentence or thirty years. However, if after the period of thirty years, the offender remains incarcerated, the evidence retention entity must secure the biological evidence until the person is released from incarceration or dies.10

FPO

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3. LInEuPS:According to a study conducted by the Innocence project, eyewitness misidentification testimony was a factor in 75% of the cases that resulted in wrongful convictions.11 In an effort to reduce the risk of misidentification, SB 77 established procedures that law enforcement agencies must follow when conducting live or photo lineups. Specifically, the new law requires that, unless impracticable, police departments must now use a “blind” or “blinded” administrator to conduct the lineup.12 This means that the person conducting the lineup either does not know the identity of the suspect (“blind”)13 or that the knows who the suspect is but does not know which lineup member is being viewed by the eyewitness (“blinded”).14

ORC 2933.83 also provides that, when it is “impracticable” to use a “blind” or “blinded” administrator, the administrator must state, in writing, the reason for that impracticability. See, ORC 2933.83(B). In addition, “[t]he administrator conducting the lineup must make a written record that includes: (a) All identification and nonidentification results obtained during the lineup, signed by the eyewitnesses, including the eyewitnesses’ confidence statements made immediately at the time of the identification; (b) The names of all persons present at the lineup; (c) The date and time of the lineup; (d) Any eyewitness identification of one or more fillers in the lineup; (e) The names of the lineup members and other relevant identifying information, and the sources of all photographs or persons used in the lineup.” See, ORC 2933.83(B)(4).

Further, ORC 2933.83(B)(5) requires the administrator to “inform the eyewitness that the suspect may or may not be in the lineup and that the administrator does not know who the suspect is.”

ORC 2933.83(C) sets forth consequences in the event that members of law enforcement fail to comply with the procedures discussed above. Evidence of failure to comply with any of the provisions of ORC 2933.83 or with any procedure for conducting lineups that has been adopted by the law enforcement agency that conforms to ORC 2933.83(B)(1) to (5) results in the following consequences:

• Such evidence shall be considered by the trial court in adjudicating motions to suppress eyewitness identification resulting from or related to the lineup;

• Such evidence shall be admissible in support of any claim of eyewitness misidentification resulting from or related to the lineup as long as that evidence otherwise is admissible; and/or

• Whenever such evidence is introduced at trial, the jury shall be instructed that it may consider credible evidence of noncompliance in determining the reliability of any eyewitness identification resulting from or related to the lineup.

4. cuSTODIAL InTErrOgATIOnS:With regard to “custodial interrogations”15, the new Ohio law encourages, but does not require, law enforcement agencies to electronically record the interrogations of persons who are suspected of the following criminal offenses: • ORC 2903.01: Aggravated Murder

• ORC 2903.02: Murder

• ORC 2903.03: Voluntary Manslaughter

• ORC 2903.04: Involuntary Manslaughter (if a Felony 1 or 2)

• ORC 2903.06: Aggravated Vehicular Homicide (if a Felony 1 or 2)

• ORC 2907.02: Rape and Attempted Rape

• ORC 2907.03: Sexual Battery

The “encouragement” built into ORC 2933.81 is that all statements made during a custodial interrogation in a place of detention of persons suspected of the above-listed criminal offenses are “presumed to be voluntary if the statements made” are electronically recorded. In such circumstances, the suspect “has the burden of proving that the statements made during the custodial interrogation were not voluntary.” See, ORC 2933.81(B).

However, violations of ORC 2933.81, in the form of unrecorded custodial interrogations in a place of detention of persons suspected of committing the above-listed offenses do not, statutorily, result in a corresponding presumption of involuntariness. ORC 2933.81(C) states that “A failure to electronically record a statement as required by this section shall not provide the basis to exclude or suppress the statement in any criminal proceeding, delinquent child proceeding, or other legal proceeding.”

The passage of SB 77 is certainly cause for celebration by the defense bar, as well as by citizens of the State of Ohio. The broad changes contained within SB 77 may serve as a national model for criminal justice in other jurisdictions. As always, it will be up to the defense bar to remain ever vigilant of these changes and the enforcement thereof, and to continue to lead the charge for further legislative changes. n___________________________________

WOrkS cITED

1. To be considered an “eligible inmate” under prior law, an inmate had to satisfy all of the following criteria: (1) the offense for which the inmate was incarcerated and was requesting the testing was a felony, and the inmate was convicted by a judge or jury of that offense; (2) the inmate was sentenced to a prison term or sentence of death for the felony and was in prison serving that prison term or under that sentence of death; (3) on the date on which the application was filed, the inmate had at least one year remaining on the prison term, or the inmate was in prison under a sentence of death; and (4) the inmate did not plead guilty or no contest to the offense for which the inmate was incarcerated and was requesting the testing. Orc 2953.71(F) and (k) and 2953.72(c).

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2. Specifically, the new law provides that, to be an “eligible offender”, an offender must satisfy all of the following criteria: (1) the offense for which the offender is requesting the testing is a felony, and the offender was convicted by a judge or jury of that offense; (2) one of the following applies: (a) the offender was sentenced to a prison term or sentence of death for that felony, and the offender is in prison serving that prison term or under the sentence of death, has been “paroled” or is under probation regarding that felony, is under “post-release control” regarding that felony, or has been released from that prison term and is under a “community control sanction” regarding that felony; (b) the offender was not sentenced to a prison term or sentence of death for the felony, but was sentenced to a community control sanction for that felony and is under that community control sanction; or (c) the felony was a “sexually oriented offense” or “child-victim oriented offense”, and the offender has a duty to comply with the requirements of the Sex Offender registration and notification Law relative to that felony; (3) the offender did not plead guilty or no contest to the offense for which the inmate is incarcerated and is requesting the testing; (4) the offender has not died prior to submitting the application for the DnA testing. See, Orc 2953.72(c).

3. Orc 2901.07(B)(1). The act defines “head of the arresting law enforcement agency” to mean whichever of the following is applicable regarding the arrest in question: (1) if the arrest was made by a sheriff or a deputy sheriff, the sheriff who made the arrest of who employs the deputy sheriff who made the arrest; (2) if the arrest was made by a law enforcement officer of a law enforcement agency of a municipal corporation, the chief of police, marshal, or other chief law enforcement officer of the agency that employs the officer who made the arrest; (3) if the arrest was made by a constable or a law enforcement officer of a township police department or police district police force, the constable who made the arrest or the chief law enforcement officer of the department or agency that employs the officer who made the arrest; (4) if the arrest was made by the Superintendent or a trooper of the State highway Patrol, the Superintendent of the State highway Patrol; (5) if the arrest was made by a law enforcement officer not identified in paragraphs (1) through (4) above, the chief law enforcement officer of the law enforcement agency that employs the officer who made the arrest. See, Orc 2901.07(A)(4).

4. under prior law, Orc 2953.82 provided, in relevant part: “an inmate who pleaded guilty or no contest to a felony offense may request DnA testing under this section regarding that offense if all of the following apply: (1) The inmate was sentenced to a prison term or sentence of death for that felony and is in prison serving that prison term or under that sentence of death. (2) On the date on which the inmate files the application requesting the testing with the court as described in division (B) of this section, the inmate has at least one year remaining on the prison term described in division (A)(1) of this section, or the inmate is in prison under a sentence of death as described in that division. (B) An inmate who pleaded guilty or no contest to a felony offense, who satisfies the criteria set forth in division (A) of this section, and who wishes to request DnA testing under this section shall submit, in accordance with this division, an application for the testing to the court of common pleas. upon submitting the application to the court, the inmate shall serve a copy on the prosecuting attorney. The inmate shall specify on the application the offense or offenses for which the inmate is requesting the DnA testing under this section. Along with the application, the inmate shall submit an acknowledgment that is signed by the inmate. The application and acknowledgment required under this division shall be the same application and acknowledgment as are used by eligible inmates who request DnA testing under sections 2953.71 to 2953.81 of the revised code. (c) Within forty-five days after the filing of an application for DnA testing under division (B) of this section, the prosecuting attorney shall file a statement with the court that indicates whether the prosecuting attorney agrees or disagrees that the inmate should be permitted to obtain DnA testing under this section. If the prosecuting attorney agrees that the inmate should be permitted to obtain DnA testing under this section, all of the following apply: (1) The

application and the written statement shall be considered for all purposes as if they were an application for DnA testing filed under section 2953.73 of the revised code that the court accepted, and the court, the prosecuting attorney, the attorney general, the inmate, law enforcement personnel, and all other involved persons shall proceed regarding DnA testing for the inmate pursuant to sections 2953.77 to 2953.81 of the revised code, in the same manner as if the inmate was an eligible inmate for whom an application for DnA testing had been accepted.”

5. The requirement to preserve biological evidence went into effect on July 6, 2010. however, the requirement that adult offenders submit to DnA collection does not go into effect until July 1, 2011.

6. Orc 2901.07(B)(1).

7. “governmental Evidence-retention Entity” is defined as any law enforcement agency, prosecutor’s office, court, public hospital, crime laboratory, or other governmental or public entity or individual within this state that is charged with the collection, storage, or retrieval of biological evidence, or any official or employee of any such entity or individual.

8. Orc 2933.82(B)(1)(a).

9. Orc 2933.82(B)(1)(b).

10. Orc 2933.82(B)(1)(c).

11. http://www.innocenceproject.org/understand/Eyewitness-Misidentification.php.

12. Orc 2933.83(B)(1).

13. Orc 2933.83(A)(2): “‘Blind administrator’ means the administrator does not know the identity of the suspect. ‘Blind administrator’ includes an administrator who conducts a photo lineup through the use of a folder system or a substantially similar system.”

14. Orc 2933.83(A)(3): “‘Blinded administrator’ means the administrator may know who the suspect is, but does not know which lineup member is being viewed by the eyewitness. ‘Blinded administrator’ includes an administrator who conducts a photo lineup through the use of a folder system or a substantially similar system.”

15. “custodial Interrogation” means any interrogation involving a law enforcement officer’s questioning that is reasonably likely to elicit incriminating responses and in which a reasonable person in the subject’s position would consider himself or herself to be in custody, beginning when a person should have been advised of the person’s right to counsel and right to remain silent and of the fact that anything the person says could be used against the person, as specified by the united States Supreme court in Miranda v. Arizona (1966), 384 u.S. 436, and subsequent decisions, and ending when the questioning has completely finished. See, Orc 2933.81(A)(1).

___________________________________

S. Michael Lear is a partner in the law firm Zukerman, Daiker & Lear co., L.P.A.

Michael is a member of the cleveland Metropolitan Bar Association, the

geauga county Bar Association, and the cuyahoga county criminal Defense

Lawyers Association. Michael is also on the Board of Directors of the Lake

geauga Educational Foundation. Michael serves as the current chair of the

OAcDL Publication committee.

Michael’s practice areas include OVI defense, state felony and misdemeanor

criminal defense, sex crime defense, appellate law, civil personal injury, and civil

defense.

Zukerman, Daiker & Lear co., L.P.A., 3912 Prospect Avenue East, cleveland,

Ohio 44115, (216) 696-0900, fax (216) 696-8800. Email: [email protected].

2991 Magazine.indd 11 3/30/11 3:33 PM


ten commonLY asked Questions About Ohio Criminal Rule 16

A substantial amount of time has passed since new Ohio criminal rule 16 went into

effect. With its purpose being to broaden discovery exchange in criminal cases, a

complete shift in the way that cases were processed across Ohio was expected. Also

expected were questions and challenges that inevitably come with virtually all changes in

the law. Below are ten commonly asked questions that have been identified and/or

presented since the effective date of the new rule.

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1. Question: Under what circumstances might defense counsel be precluded from inspecting the evidence prior to trial?

Answer: The Staff Notes as of July 1, 2010 to the Amendments of Ohio Criminal Rule 16 provide: The purpose of the revisions to Criminal Rule 16 is to provide for a just determination of criminal proceedings and to secure the fair, impartial, and speedy administration of justice through the expanded scope of materials to be exchanged between the parties. There is no circumstance that can prevent a lawyer from inspecting the evidence prior to trial.

_________

2. Question: The prosecutor’s office is designating the majority of evidence as “Counsel Only” or “Non-Disclosure.” Is this proper?

Answer: The prosecutor’s discretion to withhold evidence in certain instances is guided by Ohio Criminal Rule 16(C), (D), and (E). They are titled, respectively, as follows: prosecuting Attorney’s Designation of “Counsel Only” Materials; prosecuting Attorney’s Certification of Nondisclosure; and Right of Inspection in Cases of Sexual Assault. The prosecution must use great discretion and specificity when seeking the provided protection. The Staff Notes to the Amendments of Ohio Criminal Rule 16 expressly state: The limitations on disclosure permitted under this rule are believed to apply to the minority of cases. (Emphasis added).

_________

3. Question: If a criminal case began before July 1, 2010, which was the effective date of the new discovery rule, but has continued beyond that date, can the government withhold the evidence relying upon the old rule?

Answer: Most likely not. Ohio Criminal Rule 59(Y), entitled, Effective date of Amendments, provides that the rules recently adopted (including Crim.R. 16) “govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending, except to the extent that their application in a particular action pending when the amendments take effect would not be feasible or would work injustice, in which event the former procedure applies.”

So, unless the prosecution can establish convincingly that providing full discovery would not be feasible or would work an injustice, all evidence must be shared. In light of the spirit of the rule, withholding of the evidence by the state should be difficult.

_________

4. Question: If a client was charged in state court as a result of the work of a joint task force consisting of state and federal agents, is the defendant entitled to the reports generated by the federal government for use during the state prosecution?

Answer: Yes. Ohio Criminal Rule 16(B)(6), entitled Discovery: Right to Copy of photograph, provides that upon a written demand for discovery by the defendant, the prosecuting attorney shall provide copies or photographs, or permit counsel for the defendant to copy or photograph, all reports from peace officers, the Ohio State Highway Patrol, and federal law enforcement agents.

_________

5. Question: Evidence has been stamped “Counsel Only.” The defense needs to have the evidence reviewed by a doctor who may serve as an expert in the case. Can the defense forward the material to the doctor and, if so, what is the procedure?

Answer: Yes. Ohio Criminal Rule 16 is intended to ensure that there is a full and fair adjudication of the facts of the case. See Rule 16 (A), entitled purpose, Scope and Reciprocity. Rule 16 (C), entitled prosecuting Attorney’s Designation of “Counsel Only” Materials, dictates that while this evidence may not be shown to the defendant or any other person, it “may be disclosed only to defense counsel, or the agents or employees of defense counsel.”

Under authority of Rule 16(C), the prospective expert witness should not be prohibited or hindered in any way from reviewing the evidence marked “Counsel Only.” It may be prudent for defense counsel to advise the prospective expert in writing that they must comply with the provision of the rule and not allow inspection by the defendant.

_________

6. Question: The state is withholding evidence after verbalizing that the evidence has been classified as “Non Disclosed.” Is a verbal representation sufficient notice?

Answer: Answer: No. The Staff Notes as amended on July 1, 2010, require that a non-disclosure based upon one of the reasons specified in Rule 16(D)(1) thru (5), “must be certified in writing to the court.” While the certification need not disclose the contents or meaning of the non-disclosed material, the prosecution is required to describe the material with sufficient particularity to identify it during the later judicial review.

Additionally, the prosecution must include in the certified writing the basis for the non-disclosure classification. As such, reference to the specific concerns found in Rule 16(D)(1) thru (5) must be included in the certified writing. A boilerplate and/or standard filing by the prosecution is not sufficient for purposes of this rule.

2991 Magazine.indd 13 3/30/11 3:33 PM


7. Question: The state has designated evidence as “Non-Disclosure” and the court has determined that there was no prosecutorial abuse. Can the defense still inspect the evidence and, if so, when?

Answer: Yes. Rule 16(F)(5) provides that where the court finds no abuse of discretion by the prosecuting attorney, a copy of any discoverable material that was not disclosed before trial shall be provided to the defendant no later than commencement of trial. It must be known that this is the latest time at which defense counsel may review the evidence. pre-trial preparation, including inspection by a prospective expert, would require the disclosure of such evidence prior to this time under seal.

Utilization of Rule 16(F)(5) requires an assessment by the trial court of the right to a fair trial versus the concern for witness and/or victim protection. This test will be performed on a case by case basis. In the event that defense counsel does not move the court to permit an expert to evaluate the evidence or seek its release in order to explore other avenues of defense, the evidence would be received prior to the commencement of trial. At this time, the trial court retains the discretion to determine how long before trial the evidence is to be shared. The court needs to recognize, however, that pursuant to subsection (A) of the Staff Notes, it provides that the limitations on disclosure permitted under this rule are believed to apply to the minority of criminal cases. The Staff Notes at subsection (D) dictate that the state’s certification need not disclose the contents or meaning of the non-disclosed material, but it must describe it with sufficient particularity to identify it during judicial review as described in division (F). It is then incumbent upon defense counsel to detail on the record how the client has been prejudiced by the Certification of Non-Disclosure and seek a continuance of the proceedings to cure any such prejudice.

_________

8. Question: The state has designated evidence as “Non-Disclosure.” The trial court ordered that the evidence be disclosed after finding an abuse of prosecutorial discretion. The state then moved to perpetuate the witness’s testimony. At trial, the witness appeared and testified in contravention to the testimony previously provided at the hearing. Can the witness be impeached with the prior inconsistent statement?

Answer: Yes. Ohio Evidence Rule 613 allows for impeachment of a witness utilizing a prior inconsistent statement. Nothing in Ohio Criminal Rule 16 precludes the ability of the defense to impeach a witness with the testimony provided pursuant to Criminal Rule 16(G), to wit: perpetuation of Testimony.

_________

9. Question: A private investigator retained by the defense has obtained several statements from witnesses claiming to have personal knowledge of the alleged crimes. The statements are very favorable for the defendant. Is the defense required to turn over the statements to the prosecution prior to trial?

Answer: Yes. The new rule imposes a duty upon defense counsel requiring disclosure of evidence as specified in Criminal Rule 16(H)(1) thru (5). In accordance with Criminal Rule 16(H)(3), defense counsel shall provide the prosecution with copies or photographs, or permit the prosecution to copy or photograph any evidence that tends to negate the guilt of the defendant, is material to punishment, or tends to support an alibi. Moreover, defense counsel must provide any written or recorded statement by a witness in the defendant’s case-in-chief, or any witness that it reasonably anticipates calling as a witness in surrebuttal.

It is easy to understand this rule if two main points are remembered. First, if the recorded evidence is exculpatory, it must be turned over. Second, if the defense intends to call the recorded witness to testify at trial, the statement must be provided to the prosecution. Nothing in the rule requires the disclosure by defense counsel of material that is subject to work product protection, privilege, confidentiality, or may otherwise be prohibited from disclosure. See Criminal Rule 16( J). Defense counsel is not expected to share information that may be considered inculpatory. This would necessitate some excising or redaction. Finally, a private investigator retained by the defense is not obligated to reduce a non-recorded verbal statement to writing.

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10. Question: The prosecution has called a police officer to testify about subject matter where his/her opinion was based upon prior “on the job” experience. In line with Ohio Evidence Rule 702, the testimony relates to matters beyond the knowledge and experience possessed by lay persons. Can the police officer submit this testimony if the prosecution did not comply with Ohio Criminal Rule 16(K) entitled Expert Witnesses; Reports?

Answer: No. Ohio Criminal Rule 16(K) mandates that where testimony which is considered expert in nature is intended to be offered, the proponent party must have prepared a written report summarizing the expert witness’s testimony, findings, analysis, conclusions, or opinion, and shall include a summary of the expert’s qualifications. This written report and summary of qualifications must be provided to the opposing party no later than twenty-one days prior to trial. This time restriction may be modified by the court for good cause shown but failure to disclose the written report shall preclude the expert’s testimony at trial.

This is an interesting topic that will certainly be litigated extensively in the future. The defense practitioner must now assess whether expected testimony should be considered expert in nature when considering Evidence Rule 702. Even the most routine law enforcement tactics or investigatory methodology may be considered beyond the knowledge or experience possessed by a lay person. As such, challenges to admissibility without compliance with Criminal Rule 16(K) should be raised with greater frequency.

Ohio Criminal Rule 16 is considered sweeping reform. As a result, prosecutors, defense counsel, and judges will encounter many new questions and situations. It is important that the rule not be read or interpreted in isolated sections. The rule is very comprehensive and is meant to be read as a fluid process. It does account for all foreseeable situations faced in the criminal justice process. When coupled and applied with the Staff Notes as Amended on July 1, 2010, the rule does protect the integrity of the justice system and the rights of the defendant. n

___________________________________

ABOuT ThE AuThOr:

Ian N. Friedman is the principal of Ian n. Friedman

& Associates, L.L.c. he is a past-president of the

Ohio Association of criminal Defense Lawyers and

is an Adjunct Professor of Law at the cleveland-

Marshall college of Law where he teaches

computers & criminal Law. he is a Fellow of the

American Board of criminal Lawyers and the 2010

recipient of the William k. Thomas Distinguished

Professionalism Award given by the cleveland

Metropolitan Bar Association.

___________________________________

ABOuT ThE cOnTrIBuTOrS:

Michael C. Hoague is a retired Judge of the

Delaware Municipal court and former Delaware city

Prosecutor. he is a member of the Ohio Supreme

court rules Advisory committee and was the chair

of the criminal rules Subcommittee from 1997 to

2000.

Michael c. hennenberg is certified by the national

Board of Trial Advocacy as a criminal Trial

Advocate. he is a fellow in the American Board of

criminal Lawyers and is a past president of the

cuyahoga county criminal Defense Lawyers

Association.

Barry Wilford is a past-president of the Ohio

Association of criminal Defense Lawyers and now

serves as its Legislative Director. he is a founder of

kura & Wilford co., L.P.A., which is a criminal

defense law firm based in columbus, Ohio.

Roger M. Synenberg is the principal of Synenberg

& Associates, L.L.c., based in cleveland, Ohio. he

is a Fellow of the American Board of criminal

Lawyers and a past chair of the criminal Section of

the cleveland Bar Association.

Mark R. Devan is a past-president of the Ohio

Association of criminal Defense Lawyers. he is a

Fellow of the American college of Trial Lawyers and

the American Board of criminal Lawyers.

Timothy Young was appointed on January 1, 2008

to be the State Public Defender for the State of

Ohio. he is a frequent lecturer on issues related to

the criminal justice system.

Anthony Cicero is Board certified by the national

Board of Trial Advocacy as a criminal Defense Law

Specialist. he has served on the Supreme court of

Ohio’s commission on the rules of Practice and

Procedure.

Russ Bensing is a board member of the cuyahoga

county criminal Defense Lawyers Association. he

is a frequent lecturer on issues relating to the

practice of criminal justice and appellate

representation.

2991 Magazine.indd 15 3/30/11 3:33 PM


ThE IncOnVEnIEnT TruTh ABOuT ThE

INTOxILYZER 8000 Breath Alcohol Testing Instrument

The decision to purchase the Intoxilyzer 8000 (OH-5) for use in Ohio was not without

controversy. Blood alcohol content (BAC) results as determined by the Intoxilyzer 8000 have

been successfully challenged in several states and thousands of test results have been suppressed in

Arizona and Florida. In Tennessee, the Intoxilyzer 8000 was not recommended for use by the task

force in charge of evaluating breath alcohol testing instruments for use in that state. After initially

agreeing to purchase the Intoxilyzer 8000, Minnesota recently decided to terminate that

agreement and entered into a contract with NpAS to purchase the DataMaster “dmt” model

(DataMaster Transportable) as the exclusive breath alcohol testing instrument for use in that state.

Although use of the instrument is being implemented by law enforcement in some of the less

populated counties, the instruments are nowhere to be seen in the major metropolitan areas of

Ohio such as Columbus, Cleveland and Cincinnati.

OverviewIn 2007, the State of Ohio contracted with cMI, Inc., a kentucky-based company, to

purchase 700 Intoxilyzer 8000 (Oh-5) breath alcohol testing instruments for use by law

enforcement throughout the state. rather than keep the funds in Ohio and purchase

instruments from national Patent Analytical Systems, Inc. (nPAS), located in Mansfield,

Ohio, the Ohio Department of health chose to support the kentucky-based company.

nPAS is the manufacturer of the DataMaster series of instruments, currently used in

22 states and 5 countries.

By JOn SAIA

Jon Saia

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ThE InSTruMEnTThe Intoxilyzer 8000 utilizes infrared spectrometry (IR) technology, the most widely accepted evidential form of breath alcohol testing. IR is the same type of technology utilized by the Intoxilyzer 5000, the predecessor to the 8000, and all DataMaster breath alcohol testing instruments. The Intoxilyzer 8000 employs IR technology that is slightly different than the technology employed by the other instruments.

IR technology involves the absorption of electromagnetic radiation by alcohol. Alcohol can be detected and measured by determining the amount of wavelengths of the infrared spectrum absorbed by the distinctive molecular structure of alcohol. When an IR light passes through a chamber that contains alcohol, some of the light is absorbed. The amount of alcohol in the chamber can be measured by determining the amount of light that passes through the chamber when the air in the chamber contains alcohol and comparing it to the amount of light that passes through that same chamber after the air which contains alcohol is purged from the chamber.

Many factors must be taken into consideration when attempting to measure the amount of alcohol in an individual’s blood (BAC) by using a sample of that individual’s breath (BrAC). Some factors are taken into consideration by the breath testing instrument while others are not. In addition, the instrument must make many assumptions based upon general estimates or averages but can never really be 100% accurate. The estimates and assumptions utilized by the instrument give rise to many challenges regarding the accuracy of the instrument by many experts in the field of breath alcohol testing.

ThE SELEcTIOn OF A BAc InSTruMEnT FOr OhIOSeveral years ago, after being awarded a grant from the National Highway Traffic Safety Administration (NHTSA), the State of Ohio began a search for a single type of breath alcohol testing instrument that would be used statewide. At that time, the Ohio Department of Health (ODH) authorized the use of only 3 types of instruments to be used for breath

alcohol testing in Operating a Vehicle Impaired (OVI) cases: 1) Datamaster (including the DataMaster “K” model which includes a built in keyboard); 2) DataMaster cdm (compact DataMaster); and 3) Intoxilyzer 5000 series 66, 68 and 68 EN. Although not approved for use in OVI cases, the Intoxilyzer 8000 (OH-2) was previously approved for use in cases involving the operation of a watercraft impaired. The Ohio Department of Health approved the Intoxilyzer 8000 (OH-5) for use in OVI cases beginning in 2009.

A committee, comprised of approximately 25 individuals from various backgrounds, was formed to review several different instruments for use in Ohio. Interestingly, there was only

one forensic scientist on the committee. Rather than have the committee compile the specifications, the specifications were compiled first and then given to the committee. The committee was forced to find an instrument that met all of the specifications. Even before the process of selecting an instrument began, it was a foregone conclusion that some version of the Intoxilyzer 8000 would be the instrument that Ohio would select. Although other instruments were considered, the Intoxilyzer 8000, with some minor modifications which brought us to the “OH-5” model, happened to fall squarely within the parameters of the specifications of ODH.

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2991 Magazine.indd 17 3/30/11 3:33 PM


OhIO SPEcIFIcATIOnSThe specifications for the instrument were compiled with certain concepts in mind. Some recommendations of the National Safety Council regarding acceptable practices for breath alcohol testing would be incorporated. IR, rather than fuel cell, technology would be required, thus, eliminating two of the four major manufacturers of breath alcohol testing instruments. The same type of instrument would be used by every law enforcement agency throughout the state. The instrument would include the most recent technological advances in breath alcohol testing and the same software would be utilized in the operation of all instruments. It would be portable, permitting the use of the instrument at the location of the OVI stop and arrest. Dual testing (a second test confirming the results of the first test) capabilities would be required. Dry gas simulation checks (something new to Ohio), rather than the wet bath simulation checks currently used, would be required to insure that the instrument continues to accept a sample of air and determine whether there is alcohol in that sample. Simulation checks would be done before and after every subject test. Wet bath simulation checks would be used for “certification” purposes when the instrument is first placed into service and on an annual basis. A printer would be attached to the instrument. The instrument would include a magnetic card swipe function that is capable of importing information contained on the magnetic strips of both the subject’s driver’s license and the card used by the operator to gain access to the instrument. Finally, the instruments would be able to transmit all test results to a central database which would be hosted online at the website for the Ohio Department of Health and accessible to anyone.

Many breath alcohol testing instruments met all of the required specifications set forth by ODH, including all instruments previously approved for use in Ohio. What set the Intoxilyzer 8000 apart from the others was one very important aspect in breath alcohol testing: a handle.

ThE hAnDLE portability of the instrument was stressed to the search committee. The instrument had to be easily transported from one location to another. Obviously, a handle would make the transportation much easier. The Intoxilyzer 8000 was the only breath alcohol testing instrument manufactured with a handle.

Both time and money were wasted by having the committee travel to various locations throughout the U.S. to conduct useless evaluations of various instruments which had no chance of being selected for use in Ohio. Not because there was not a better instrument on the market; but because none of those instruments had a handle.

Although all of the instruments already approved for use in Ohio, as well as several other instruments, met the specifications required for the new instrument, many, if not all, of the committee members selected the Intoxilyzer 8000 as the instrument of choice because it was equipped with a handle.

It became rather obvious that the instrument which would be purchased was selected prior to the formation of a committee to evaluate instruments. OVI defense practitioners never had a doubt which instrument would be chosen by the committee.

Interestingly enough, to date, the only place to which instruments that have already been placed in service have been transported is to the location where those instruments were initially placed in service. Quite comically, a representative from ODH recently used a dolly to transport the instrument from his vehicle to a conference room at a seminar in order to have the instrument available for demonstration purposes.

ThE cOnTrAcTIn 2007, the state of Ohio entered into a contract with CMI, Inc., the manufacturer of the Intoxilyzer 8000, to purchase 700 instruments. An additional 30 instruments were purchased in 2010 for training purposes. The contract price is approximately $9100 per instrument. Interestingly, Kansas entered into a contract with CMI for the purchase of the Intoxilyzer 8000 for approximately $5000 per instrument. New Mexico paid just over $7100 per instrument.

The terms of the Ohio contract with CMI included the largest quantity of breath alcohol testing instruments ever sold at one time and the highest price ever paid per instrument.

FPO

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IMPLEMEnTATIOn OF ThE PrOgrAMThe first instrument was placed into service in 2009, in Clermont County. The strategy was to first place the instrument in counties with high OVI conviction rates and attempt to avoid challenges to test results for as long as possible. In addition, problems with the instrument or with the implementation of the entire program could be corrected before the instrument became more widely used. One of many problems with the implementation of the instruments was the ability to transmit data from the location of the instrument to the central database. Many law enforcement agencies required technological upgrades to handle the amount of data being transmitted. The Ohio Department of Health is hoping to have the instrument utilized in all 88 Ohio Counties by the end of 2011.

ISSuES InVOLVIng ThE 8000The Intoxilyzer 8000 does not come to Ohio without baggage. The instrument has run into a significant number of problems in Florida, Arizona and Minnesota and did not meet the requirements for use in Tennessee.

Studies conducted in Tennessee determined that the Intoxilyzer 8000 did not produce results which could satisfactorily be relied upon for the prosecution of DUI (OVI) offenses. The instrument was evaluated for accuracy, precision and performance. The task force given the responsibility to approve instruments for use in that state found that the “CMI Intoxilyzer 8000 did not yield satisfactory results” to accurately determine BAC levels.1

In Florida, although approved for use, results have been suppressed for numerous reasons. The primary reason is due to the inaccuracy of test results based upon flaws in the operational software.2 In addition, tests have been suppressed due to CMI’s failure to allow the inspection of the operational software (source code) of the instrument by the defense. Because CMI will not produce this information, the State could not produce the evidence for review and inspection by the defense through the discovery process and the results were suppressed. CMI has been held in contempt due to the failure to allow the defense to inspect the source code.3 A third basis for the suppression of test results is due to the State of Florida’s failure to prove the reliability of the instrument.4

Several thousand breath test results from the Intoxilyzer 8000 have been suppressed in Arizona due to the acknowledgement by a CMI representative of software problems which affect the accuracy of the test result. A ruling by the trial court requiring CMI to turn over the source code to the defense was subsequently overturned by an appellate court.5 But, the damage had already been done as the general reliability of the instrument became suspect and continues to be challenged.6

The State of Minnesota was forced to file suit against CMI.7 The lawsuit was initiated due to the state being ordered, as part of the discovery process, to produce to the defense the source code for the Intoxilyzer 5000. CMI refused to turn over the source code to the state. Worrying that test results would be suppressed due to its failure to comply with the discovery order, the state sued CMI requesting that CMI be ordered to

turn over the source code to the state. Although the lawsuit is still pending, Minnesota decided to not purchase any additional instruments from CMI, including the Intoxilyzer 8000. In August, 2010, Minnesota selected the DataMaster “dmt” as the exclusive instrument for future purchases.

Experts across the country point to the type of IR technology employed by the Intoxilyzer 8000 as one source of the problem with this instrument. CMI chose to utilize a type of IR technology that is different than that used in the Intoxilyzer 5000 and the DataMaster Instruments. This new technology involves the use of a pulsing lamp and pyro-electric detector which may be responsible for the high number of results which are not reliable. The Intoxilyzer 5000 and the DataMaster instruments use technology that involves a solid state infrared lamp and a cooled lead selenide detector which produces a signal approximately 4 times greater than the maximum useable signal achieved with pulse lamp technology. The newer technology utilized by the Intoxilyzer 8000 is slower and less sensitive, compromising precision and reliability. The instrument will often fail to detect mouth alcohol and other interferents which lead to unreliable results.

Flaws in the source code for the Intoxilyzer 8000 have long been suspected by many experts in the area of breath alcohol testing. These flaws, combined with the newer IR technology, lead to numerous unreliable test results. Studies have shown that the Intoxilyzer 8000 will post unreliable results due to the failure of the instrument to recognize when minimum breath volume requirements have not been met. Other studies have shown that the instrument fails to detect mouth alcohol as much as 25% of the time. These studies are at the root of CMI’s refusal to release the source code for independent evaluation.

It should be noted that for approximately $350 and a signature on an agreement restricting the use of the source code, NpAS will readily turn over the source code for inspection for any DataMaster instrument.

A simple internet search will lead to hundreds of examples of flaws discovered by toxicologists, chemists, attorneys and others which can only be attributed to a flaw in the source code. Videos, some of which have originated from cameras within the law enforcement agency offices, demonstrate how easily results can be manipulated and maintenance records can be altered. Because of the problems revealed in Tennessee, Florida, Arizona and Minnesota, BAC results from the Intoxilyzer 8000 are being challenged in every state in which it is in service.

OhIO’S ASSAuLT On ThE 8000Although a full assault has not yet been launched on the Intoxilyzer 8000 in Ohio as of yet, test results have been successfully challenged and have been suppressed from being introduced into evidence for several reasons.

The instruments currently in service in Ohio have an unusually high number of “ambient fail” readings. Basically, the instrument has the ability to draw in air from the surrounding area of the instrument and analyzes that air to determine the presence of alcohol or any other contaminant which may affect the test result. If a small amount of

2991 Magazine.indd 19 3/30/11 3:33 PM


alcohol or contaminant is detected, the instrument will compensate for that amount. If a larger amount is detected, the instrument will not allow the test to proceed due to an “ambient fail.” For unknown reasons, the instruments in Ohio have an excessive number of “ambient fail” readings. One explanation, by a representative from the Ohio Department of Health assigned to investigate the matter, is that the error was caused by radio frequency interference from Blackberry phones. His conclusion is not accepted by most experts in the field. An acceptable answer has not yet been provided by the State. An inspection of the instruments operational software would most likely reveal the actual malfunction.

A second challenge relates to the fact that the individual that certified the first several instruments placed into service is no longer employed by the State. As for the instruments that were subsequently placed into service, those were certified for use by a limited number of individuals. It is very difficult for those few individuals to be at various courts throughout the state at the same time to testify as to the accuracy of the certification. Records maintained on the central database website should not be sufficient for admission into evidence because the accuracy of the documentation maintained by the central database cannot be accounted for as indicated in ODH’s “Notice and Disclaimer of Liability.”

The “disclaimer” appears on the website which hosts the central database. As indicated, the State cannot account for the “quality, accuracy, or completeness of the data” maintained on that site. In addition, the State acknowledges that the data “does not constitute scientific publication” and “may contain errors or be incomplete.” Despite this fact, hundreds of individuals throughout the State have already been convicted of OVI based upon these very same records.

Law enforcement officers administering the tests have not been properly trained in the operation of the instrument and the interpretation of test results. Although the instrument is relatively simple to run, officers have not received sufficient training regarding the procedure to follow when an error occurs. A review of test records revealed that despite error after error, officers continued to administer tests on an instrument proven to not be in proper working order without the instrument being first taken out of service and repaired.

The test result on the Intoxilyzer 8000 is a little more difficult to interpret than the result on other instruments. The Intoxilyzer 8000 has been programmed to administer two tests (dual testing) to each individual tested. Although new to Ohio, dual testing is common in most states and is recommended by almost every expert and the National Safety Council. All instruments approved for use in Ohio, are capable of dual testing and the settings can be modified to perform dual testing within a couple of seconds by anyone intelligent enough to read a manual. The Ohio Department of Health simply never required it until the Intoxilyzer 8000 became an approved instrument.

With dual testing, it is possible for an individual to test both over and under the legal limit. Although the instrument is programmed to print the result for the lower of the two tests as the final result, the higher of

the two tests also appears on the printout. Some officers are ignoring the lower test in this situation, and placing the individual under an administrative license suspension based upon the higher test result. These same officers are then filing the “per se” OVI charge (testing at or over the legal limit) when that charge should not be filed.

Another issue that arises with dual testing is that the two test results must be within .02 grams of alcohol per 210 liters of a breath of one another. If the results are not within this tolerance level, the results are not valid. When the two tests are not within the required tolerance level, the final test result is invalid regardless of the BAC level of either test. Yet, some officers will treat the test result as valid if one or both test results are at or over the legal limit. This scenario also results in a license suspension and the filing of a “per se” OVI charge when neither is appropriate.

Situations where multiple tests are administered to an individual due to invalid test results or instrument error will also provide a challenge to test results. Some officers will continue to administer tests to an individual until the officer considers the test result valid. In some cases, the individual may be asked to submit to as many as eight tests. Rather than take the instrument out of service and correct the problem, the instrument will continue to be used.

Officers failing to turn over all test results to the prosecutor have been an issue in some cases. Some officers will only turn over to the prosecutor test results which indicate a valid test result. It is necessary to corroborate the test results maintained on the central database to insure that all test results, valid and invalid, are disclosed.

Finally, there is the attack upon the accuracy and reliability of the instrument. This has proven to be a very complex, difficult and expensive undertaking in other states and may be an even more complex, difficult and expensive undertaking in Ohio.

In Ohio, our Supreme Court has stated that the general reliability of a breath testing instrument cannot be challenged. The challenge must be specific to the test at issue. Defense counsel have had a difficult time overcoming the hurdles set forth by the Supreme Court of Ohio when attempting to challenge the accuracy of breath alcohol test results. Use of the Intoxilyzer 8000 should open the door for challenges to both the general reliability of the instrument as well as challenges to the specific test at issue.

Although not common knowledge, many experts, defense attorneys and even some prosecutors and judges, agree that there are valid concerns regarding the accuracy and reliability of the Intoxilyzer 8000. Demonstrations have proven the fallibility of the instrument. At many, if not most, demonstrations, the instrument has failed to work properly. A simple review of the test results maintained on the central database reveal many problems with the general reliability of this particular instrument. Evaluations in other states have also revealed many pitfalls with regard to error and accuracy of test results.

2991 Magazine.indd 20 3/30/11 3:33 PM

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www.polytechassoc.com

vindicator 21

cOncLuSIOnDefense attorneys throughout Ohio should be happy with the choice of instrument by ODH. Although a valiant attempt was made to bring breath alcohol testing in Ohio into 21st century, the attempt clearly failed. The Intoxilyzer 8000 (OH-5) is a huge step in the wrong direction. The general reliability of the instrument’s ability to determine accurate BAC levels is certainly at issue. The failure to disclose the source code to the defense bar for independent analysis makes the instrument even more suspect. Finally, when requested by ODH representatives to address issues concerning problems related to the source code, CMI did not provide a direct response. Instead, the CMI representative simply indicated that Ohio need not worry about the issues surrounding the source code because in Ohio it is not up to the courts to determine the reliability of the instrument. Until it is decided that the determination of the reliability of breath testing instruments is within the purview of the court, many individuals will be wrongly convicted in Ohio. n___________________________________

WOrkS cITED

1. Tennessee Bureau of Investigation Forensic Services Division Minimum Standards and Specifications for the Scientific Appraisal of Breath Alcohol Instruments (2003)

2. State of Florida v. James Briggs et al. 2006-cT-2638 (Florida, 2nd Judicial circuit)

3. cMI, Inc. of kentucky v. John Fabian et al. 2007 AP 10721 (Florida, 12th Judicial circuit)

4. State of Florida v. robert yount, case no. 2009-cF-746-A-k (Florida, 16th Judicial circuit)

5. State of Arizona v. Judge Deborah Bernini, case no. 2 cA-SA 2009-0062 (Arizona, Appellate Division 2)

6. See: “Judge rescinds Order for DuI Breath-Test Device code” Tucson citizen Morgue, Jan. 13, 2009

7. In re Minnesota Intoxilyzer 5000En Source code Litigation, case no. 70-cr-09-19749 (Minn., District court)

___________________________________

Jon J. Saia has over 22 years of experience in defending criminal cases. The

focus of his practice is OVI Defense. Beyond representing individuals charged

with OVI, Mr. Saia provides consultation services and expert testimony with

respect to the administration of field sobriety and is often consulted by

colleagues with regard to issues surrounding breath, blood and urine alcohol

testing. Mr. Saia is has completed training in both the administration and

instruction of DuI Detection and Standardized Field Sobriety Testing. In

addition, Mr. Saia is certified in the operation, diagnostic verification and

calibration of the DataMaster breath testing instrument.

2991 Magazine.indd 21 3/30/11 3:33 PM


LaW enForcement

“There’s an app for that.” By rOnALD L. FrEy, ESq.

Our reliance upon technology is nothing new,

but in recent years our use of technology seems

to be escalating in all aspects of life. For many,

simply driving without gPS or going a day without

accessing the Internet is unbearable. Ideally, the use

of technology improves our quality of life in some

fashion. Oftentimes, it allows us to operate in a more

efficient and effective manner. It should come as no

surprise then that the government has increasingly

turned to technology to assist with investigations,

especially those conducted on the Internet. In some

cases, investigations previously conducted by law

enforcement officers have been automated. In

these instances, the software itself conducts the

investigation and simply reports its findings to

the officer.

FPO

2991 Magazine.indd 22 3/30/11 3:33 PM

vindicator 23

InVESTIgATIOnS OF PEEr-TO-PEEr (P2P) nETWOrkSA prime example of law enforcement’s increased reliance upon technology is the utilization of software that purportedly investigates computers that access peer-to-peer (p2p) networks. The FBI website explains the operation of p2p networks as follows:

peer-to-peer networks allow users connected to the Internet to link their computers with other computers around the world. These networks are established for the purpose of sharing files. Typically, users of peer-to-peer networks install free software on their computers which allows them (1) to find and download files located on another peer-to-peer user’s hard drive, and (2) to share with those other users files located on their own computer. Unfortunately sometimes these information-sharing systems have been used to engage in illegal activity. http://www.fbi.gov/scams-safety/peertopeer - Risks of Peer-to-Peer Systems – accessed, February 9, 2011.

The F.B.I. website notes that the most common crimes associated with p2p networks include Copyright Infringement, Child Exploitation, Obscenity, and Computer Hacking. Id. With regard to investigations on p2p networks, law enforcement officers traditionally manually accessed the p2p networks, by way of publicly available software, and searched the shared folders of other users on the p2p network for items that constitute contraband. In other words, law enforcement would search out contraband that was purportedly in “plain-view” and being offered for download by a user of the P2P network. Once the officer located contraband, it could then be downloaded and preserved as evidence. Further, the investigator could identify the Internet protocol (Ip) address of the computer offering the contraband. Finally, the investigator would identify the digital signature of the file itself. This digital signature is commonly referred to as the file’s SHA-1 value. SHA-1 or Secure Hash Algorithm Version 1, is often described within law enforcement affidavits as a file encryption method that can be used to produce a unique digital signature for an individual file, regardless of the name a user may choose for a

file. In essence, it enables the p2p software to identify files in order to facilitate the transfer of files over the network.

Law enforcement relies upon the SHA-1 values in order to identify files that have been previously confirmed to constitute contraband. For instance, a digital image that depicts child sexual exploitation could theoretically be identified by its SHA-1 value, regardless of the file name a user might assign to the digital image and regardless of whether the officer actually downloaded or viewed the image. A comparison between the SHA-1 value of known contraband to the SHA-1 value of the file being offered by a network user can lead an investigator to conclude that contraband is being offered by the particular user.

Once the investigator identifies the suspected contraband, either by downloading and viewing it, or by comparing the SHA-1 value of the digital file to known contraband values, the officer can then observe the IP address of the computer that offered the contraband for download. Thereafter, the internet service provider (ISp) associated with that particular Ip address is issued a Subpoena for the identification and address of the subscriber for that particular Ip address. With these results, the investigator can apply for a search warrant to enter and search the residence associated with the Ip address that was offering contraband.

PEEr SPEcTrE SOFTWArEIn 2008, a software application known as “peer Spectre” was released and has been utilized by law enforcement agencies throughout the United States and the world. According to government affidavits, Peer Spectre is an automated system that reads the publicly available advertisements from computers that are identifying contraband available for distribution in a consistent and reliable manner. Further, law enforcement claims that the software reports the time, date, SHA-1 value and file name in the same way every time. In essence, it is claimed that peer Spectre automates the search process, but conducts and reports the investigation in the same manner that had previously been done by individual investigators. Finally, law enforcement claims that the software does not search beyond the

ronald L. Frey, Esq.

2991 Magazine.indd 23 3/30/11 3:33 PM


file folders that are exposed to the other network users and limits its search to the files that are located in plain-view.

peer Spectre was developed by William S. Wiltse, a former police detective for the City of Salem, Oregon and police officer for the State of Oregon. Currently, he is sworn as a reserve deputy sheriff with the Bedford County Sheriff ’s Office in Bedford County, Virginia. The software was also created in conjunction with Flint Waters of the Wyoming Division of Criminal Investigations.

WhO hAS AccESS TO ThE SOFTWArE AnD Why DOES IT MATTEr?According to an affidavit submitted by Wiltse in December of 2009, Peer Spectre is only made available to specifically trained law enforcement officers and its use is restricted to only those officers in the performance of law enforcement activity. As such, although peer Spectre was developed by individuals with law enforcement experience, it remains a copyrighted software application. As such,

the software is proprietary in nature and is apparently not owned by law enforcement or any governmental agency. Further, per the Wiltse affidavit, the source code for the software has not been distributed. In sum, although the government is readily utilizing the software in its investigations, it does not own the software.

Although many defendants have been indicted as a result of investigations that rely upon peer Spectre, defense experts have yet to be granted access to the software in order to conduct an independent analysis or independent test of the software. Further, this writer is not aware of any independent expert being granted access to the software to date. As such, there are no studies or peer review articles regarding the functionality or reliability of the software.

WhO hAS AccESS TO ThE SOFTWArE’S SOurcE cODE AnD Why DOES IT MATTEr?The source code for software is the original code that is used by the programmer in the development of software and is generally

written in plain text with alphanumeric characters. See, Source Code Definition, The Linux Information Project, http://www.linfo.org/source_code.html, accessed February 9, 2011. The source code is translated to binary code thereafter. Typically, when copyrighted software is distributed or sold, the source code is not included within the product, only the binary code.

Within an affidavit, Wiltse has provided the following information with regard to peer Spectre’s copyright and source code:

peer Spectre is a copyrighted computer application for which the source code has not been distributed. The source code is not distributed with the peer Spectre Software that is distributed to trained law enforcement officers. Without the source code, it is not possible to authenticate the function of the application or validate its “calibration.” (Emphasis added).

He further provides that “[t]he source code used by the peer Spectre application has not been, and will not be, distributed to any law enforcement officer or agency…” Based upon this statement, it can be presumed that the government is still denied access to the source code.

This is problematic on many levels. First, law enforcement is utilizing software that it does not own. Second, law enforcement does not have access to the software’s source code and, according to its developer, will not have access in the future either. Third, without the source code, law enforcement is unable to actually authenticate the function of the software.

LEgAL cOnSIDErATIOnSWhen the government utilizes software to conduct searches over the Internet, without a warrant, it is important to consider whether those searches are, in fact, limited to files that are in plain-view. The government bears the burden of proving an exception to the search warrant requirement. State v. Mays, 161 Ohio App,3d 175 (8th Dist. 2005). Where there is no search warrant, the burden falls on the State to show that a search comes within one of the judicially recognized exceptions, including but

FPO

2991 Magazine.indd 24 3/30/11 3:33 PM

vindicator 25

InterchangeDriver’s Intervention program

AssessmentsCounseling

Interchange is a 72 hour residential Driver’s Intervention program for persons arrested or

convicted of driving while impaired or chemically influenced. Interchange also accepts offenders for

whom the court deems jail inappropriate. Interchange is certified by the Ohio Department of Alcohol and

Drug Addiction Services.

(216) 521-77111397 Warren Rd, Lakewood, OH 44107

not limited to, the plain-view doctrine. State v. Akron Airport Post No. 8975, 19 Ohio St.3d 49 (Ohio 1985).

Under the plain-view exception, three (3) requirements must be satisfied: the officer’s intrusion into the location where the evidence is located must be lawful, the discovery of the evidence must be inadvertent, and the incriminating nature of the evidence must be immediately apparent. Texas v. Brown, 460 U.S. 730, 739 (1983). When the government relies upon software to conduct warrantless investigations on the internet, but does not have access to the source code and is thereby unable to authenticate the function of the software application, it is difficult to imagine how the government could meet its burden of proving that the software limited its search to files that are in plain-view. Further, there are no independent studies available, nor have any defense experts been granted access to the software for testing of the source code for analysis. Finally, the reliability of the software cannot be readily determined without the source code and without testing.

After having reviewed many search warrant affidavits that concern the utilization of Peer Spectre, it appears that not a single affidavit indicates that the government has the source code to the software. Without the source code, the function of the application cannot be authenticated. Despite this fact, results compiled by peer Spectre software often provide the basis for the issuance of search warrants in criminal cases.

gOIng FOrWArDWhen confronted with a new software application that is utilized in an investigation, it may be useful to explore the following questions: 1. Who developed the software and what are

the developer’s qualifications? 2. Who owns the software? 3. Does the government have access to the

source code? 4. Can a defense expert conduct an

independent analysis of the software? 5. What training have the investigators

received with regard to the software? 6. Are there any independent or peer review

studies on the software?

7. Is the software reliable? If so, how was that conclusion reached?

8. Who can authenticate the functionality and reliability of the software?

9. Are there any guides or manuals for the software and can they be obtained?

10. What does the software really do and how do we know?

Technology is advancing at an ever-increasing pace. There is no reason to expect that the government will not continue to adopt new technology and software for use by law enforcement. Those who take up the defense of citizens charged with crimes must remain vigilant in exploring all aspects the government’s investigation, including a thorough review of the technology and software employed. n

___________________________________

ronald Frey is the senior associate attorney at

Ian n. Friedman & Associates, L.L.c., a cleveland-

based criminal defense firm. his practice focuses

on complex criminal matters and he has represented

individuals throughout Ohio and across the united

States. Mr. Frey serves as an Adjunct university

Professor at ursuline college in Pepper Pike, Ohio

where he teaches criminal Law & Procedure and

criminal Forensics. he has served as trial and

appellate counsel for the Disciplinary committee of

the cuyahoga Metropolitan Bar Association and is

a current member of the Board of Directors of the

Ohio Association of criminal Defense Lawyers. he

can be reached at (216) 928-7700 or via email at

[email protected].

2991 Magazine.indd 25 3/30/11 3:33 PM


ThIS ArTIcLE cAnnOT POSSIBLy ADDrESS ALL OF ThE rAMIFIcATIOnS AnD EFFEcTS OF A crIMInAL cOnVIcTIOn On ThOSE WhO ArE EMPLOyED By, Or InTEnD TO SEEk EMPLOyMEnT WITh, SchOOL BOArDS AnD/Or SchOOLS. PrAcTITIOnErS WITh cLIEnTS WhO FALL InTO ThESE cATEgOrIES ShOuLD cOnSuLT OhIO rEVISED cODE chAPTEr 3319 AnD OhIO ADMInISTrATIVE cODE chAPTEr 3301.

The following article is the second in a two-part series concerning criminal records check

requirements imposed by the State of Ohio for employees of educational institutions.

The first article, which appeared in the Winter 2010 edition of the Vindicator, discussed

the criminal records check provisions that are mandated by the State of Ohio for non-

licensed, non-transportation employees. This article, by contrast, focuses on the criminal

records check required by the State of Ohio for teachers and other licensed school

employees. Specifically, this article addresses several significant issues concerning

criminal records checks for licensed school employees, including the consequences

of past convictions, rehabilitation criteria, and confidentiality.

This article also addresses the potential effects of pleading guilty to, or being convicted of,

various criminal offenses on licensed and non-licensed employees of school boards and/

or schools.

ohio criminaL Background check reQuirements For individuaLs empLoYed BY educationaL institutions: part ii: Background checks For teachers and other Licensed schooL empLoYees

By LArry W. ZukErMAn, ESq. AnD S. MIchAEL LEAr, ESq.

2991 Magazine.indd 26 3/30/11 3:33 PM

vindicator 27

crIMInAL rEcOrDS chEckS: InTrODucTIOnAmong the various statutory and regulatory requirements for licensure and employment in the teaching profession is that all applicants submit to a criminal records check. While such a requirement seems rather straightforward, the laws concerning such criminal records checks for teachers and other licensed school employees are complex and ever-changing. Therefore, practitioners that represent school districts, educational service centers, chartered non-public schools or the employees of any of these organizations, must have a thorough understanding of the criminal records check requirements imposed by Ohio law and the ramifications for non-compliance with such requirements. Moreover, to properly advise clients who have been charged with a criminal offense, attorneys must be aware of the potential consequences of a conviction on their client’s ability to seek and maintain employment at an educational institution. Also, because the laws and regulations related to criminal records checks have changed frequently in recent years, attorneys are well advised to keep themselves apprised of the latest developments in this area of the law. Section A of this article provides an overview of the laws related to criminal records checks for licensed school employees and highlights recent legislative and regulatory developments in this area of the law. Section B discusses in greater detail some of the specific provisions of the criminal records check laws, including the consequences of past convictions, rehabilitation criteria, and issues related to confidentiality. Finally, Section C analyzes issues related to confidentiality.

A. Ohio’s Criminal Records Check Laws For several years, teachers and other

licensed school employees of Ohio have been required to undergo criminal records checks. As a general rule, licensed school employees are subject to criminal records checks as part of their initial licensure application and renewal, and when they apply for employment. With regard to licensure-based background checks, under R.C. 3319.291, the state board of education requires fingerprinting and criminal background checks, by the Bureau of Criminal Identification and

Investigation (BCI & I) as well as the Federal Bureau of Investigation (FBI), for the following classes of individuals, unless the person has undergone a records check less than five (5) years prior to the time specified below:

a. Any person initially applying for any certificate, license, or permit described in R.C. Chapter 3319, R.C. 3301.071(B) (serving in a nonpublic school chartered by the state board of education), or R.C. 3301.074 (school district treasurer or business manager), at the time the application is made;

b. Any person applying for renewal of any certificate, license, or permit described above at the time the application for renewal is made;

c. Any person who is teaching under a professional teaching certificate issued under former R.C. 3319.222 upon a date prescribed by the state board; and

d. Any person who is teaching under a permanent teaching certificate issued under former R.C. 3319.22 as it exited prior to October 29, 1996, or under former R.C. 3319.222 upon a date prescribed by the state board and every five years thereafter.

The state board will inactivate the license of any person listed in paragraphs (c) and (d) above who fails to submit to background check requirements. See, R.C. 3319.291(E).

The above-described records checks are effectuated by requiring the person to submit two complete sets of fingerprints with written permission that authorizes the superintendent of public instruction to forward the fingerprints to BCI & I and that authorizes BCI & I to forward the fingerprints to the FBI for purposes of obtaining any criminal records maintained on the person. See, R.C. 3319.291(B), and R.C. 109.57.

That said, under Ohio law, not all licensed employees are required to submit to a licensure-based criminal records check. For example, a records check is not required if the licensed school employee has undergone an employment-based

criminal records check within the preceding year or a licensure-based check less than five years before the application for a license or renewal. See, R.C. 3319.291(A) & (D). Moreover, pursuant to R.C. 3319.291(B) only a criminal records check by the FBI is required if the state board previously requested a criminal records check from BCI & I and the person presents proof that he has been a resident of this state for the five-year period immediately prior to the date upon which the person becomes subject to a criminal records check.

If, as a result of the above-described criminal records check, the board of education learns of a conviction of certain specified offenses1, the board shall take action to deny issuance or renewal of a license, suspend, revoke, or limit a license that has been issued. See, R.C. 3319.311(A)(2) and R.C. 3319.31(B).

Moreover, R.C. 3319.39 requires a criminal records check (from BCI & I and the FBI) with respect to any person2 who has applied to a school district, educational service center, or school for employment in any position unless all of the following apply with respect to said applicant:

a. The applicant is applying to be an instructor of adult education;

b. The duties of the position for which the applicant is applying do not involve “routine interaction with a child or regular responsibility for the care, custody, or control of a child” or, if such duties are involved, another employee will be present with the applicant during such times; and

c. The applicant presents proof that the applicant has been a resident of this state for the five-year period immediately preceding the date on which the criminal records check is requested or provides proof that within said five-year period the superintendent of BCI & I has requested information about the applicant from the FBI in a criminal records check.

2991 Magazine.indd 27 3/30/11 3:33 PM


Accordingly, with very limited exception, as set forth above, all persons applying for employment with a school district, educational service center, or school are subject to criminal records checks by BCI & I and the FBI and any such person who has been convicted of certain criminal offenses3 cannot be hired, unless such person meets standards in regard to rehabilitation as set by the Department of Education for certain such offenses.

Finally, it is important to know that not only the laundry list of offenses will result in a refusal to issue, limitation, suspension, and/or revocation of a certificate, license, or permit issued pursuant to ORC Chapter 3319. ORC 3319.31 further grants the state board of education discretion to refuse to issue a license and/or discretion to limit a license it issues, suspend, revoke, or limit an existing license for any of the following reasons:

(1) Engaging in an immoral act, incompetence, negligence, or conduct that is unbecoming to the applicant’s or person’s position;

(2) A plea of guilty to, a finding of guilt by a jury or court of, or a conviction of any of the following:

(a) A felony other than a felony listed in ORC 3319.31(C) (See footnoted 1 herein);

(b) An offense of violence other than an offense of violence listed in ORC 3319.31(C) (See footnoted 1 herein);

(c) A theft offense, as defined in ORC 2913.01, other than a theft offense listed in ORC 3319.31(C) (See footnoted 1 herein);

(d) A drug abuse offense, as defined in ORC 2925.01, that is not a minor misdemeanor, other than a drug abuse offense listed in ORC 3319.31(C) (See footnoted 1 herein);

(e) A violation of an ordinance of a municipal corporation that is substantively comparable to an offense listed above.

Accordingly, essentially any criminal conviction, with very few exceptions, may, and possibly will (depending on the offense), have some negative consequences on a licensed employee of a school board or school. Obviously, clients who are so license and/or employed must be advised of the consequences of a plea and/or conviction of such criminal offenses.

B. Rehabilitation As seen herein, under Ohio law a criminal

conviction can have a significant impact not only on an educator’s eligibility to obtain licensure and employment in the teaching profession, but also on virtually anyone else who seeks employment with a school district or school. Indeed, individuals convicted of “non-rehabilitative offenses” are disqualified from ever obtaining initial licensure and/or employment by a school district. “Non-rehabilitative offenses” are defined by OAC 3301-20-01 as those offenses listed in R.C. 3319.31(C) (See footnote 1).

If, however, an educator has pled guilty to, been found guilty of, or been convicted of any offense, other than the “non-rehabilitative offenses”, the educator may apply for rehabilitation for purposes of licensure and/or employability. Rehabilitation criteria are listed in OAC 3301-20-01(2) and include the following:

(a) At the time of the offense, the victim of the offense was not under 18 years of age or enrolled as a student in a district;

(b) If the offense was a felony, at least 5 years have elapsed since the applicant was fully discharged from imprisonment, probation, or parole or the applicant has had the record sealed. If the offense was a misdemeanor, at least 5 years have elapsed since the date of conviction or the applicant has had his or her record sealed;

(c) The applicant has not pled guilty to, been found guilty of, or been convicted of any of the offenses listed in R.C. 3319.39(B)(1) (See footnote 3 herein) and R.C. 3319.31 or any municipal

ordinance of law of this state, another state, or the United States substantially similar to the offenses listed in R.C. 3319.39(B)(1) and R.C. 3319.31 two or more times in separate criminal actions, with the exception of two or more two or more misdemeanor theft related convictions as defined in R.C. 2913.02, 2913.03, 2913.04, 2913.11, and 2913.51;

(d) The applicant provides written confirmation of his or her efforts at rehabilitation and the results of those efforts. Such written confirmation may include a statement by a court, parole officer, probation officer, and/or counselor that the applicant has been rehabilitated;

(e) A reasonable person would conclude that the applicant’s hiring or licensure will not jeopardize the health, safety, or welfare of the persons served by the district.

Thus, under some circumstances, and depending on the offense of conviction, educators may seek to be deemed rehabilitated. The possibility of rehabilitation may be a crucial aspect of plea negotiation and, accordingly, practitioners are urged to review the appropriate Ohio Revised Code and Ohio Administrative Code statutes and regulations when representing a licensed educator.

C. Retained Applicant Fingerprint Database: It should also be noted that BCI & I is

required to maintain a “retained applicant fingerprint database” that includes applicants who were initially screened for employment after the database was created. R.C. 109.5721 requires BCI & I to establish and maintain a database of fingerprints of “individuals on whom the bureau has conducted criminal records checks for the purpose of determining eligibility for employment with, licensure by, or approval for adoption by a pubic office.” When an individual whose name is in the retained fingerprint database has been arrested, convicted of, or pled guilty to any offense, the superintendent of BCI & I is mandated to notify the public office that employs, licenses, or has

2991 Magazine.indd 28 3/30/11 3:33 PM

vindicator 29

approved the individual of the arrest, conviction, or guilty plea.

D. Conclusion: Anyone who is employed by a school

district or school and/or who is a licensed educator and who is charged with a criminal offense must be informed of the effects of a plea or conviction to said offense. It is crucial that practitioners be aware of the possible effects of a plea or conviction to properly represent such a client. n

___________________________________

WOrkS cITED

1. Orc 3319.31(c) lists convictions for the following criminal offenses:

1. r.c. 2919.22(B)(1), (2), (3), or (4) (Endangering children);

2. r.c. 2903.01 (Aggravated Murder);

3. r.c. 2903.02 (Murder);

4. r.c. 2903.03 (Voluntary Manslaughter);

5. r.c. 2903.04 (Involuntary Manslaughter);

6. r.c. 2903.041 (reckless homicide);

7. r.c. 2903.11 (Felonious Assault);

8. r.c. 2903.12 (Aggravated Assault);

9. r.c. 2903.15 (Permitting child Abuse);

10. r.c. 2905.01 (kidnapping);

11. r.c. 2905.02 (Abduction);

12. r.c. 2905.05 (criminal child Enticement);

13. r.c. 2905.11 (Extortion);

14. r.c. 2907.02 (rape);

15. r.c. 2907.03 (Sexual Battery);

16. r.c. 2907.04 (unlawful Sexual conduct With a Minor);

17. r.c. 2907.05 (gross Sexual Imposition);

18. r.c. 2907.06 (Sexual Imposition);

19. r.c. 2907.07 (Importuning);

20. r.c. 2907.21 (compelling Prostitution);

21. r.c. 2907.22 (Promoting Prostitution);

22. r.c. 2907.23 (Procuring);

23. r.c. 2907.24 (Soliciting);

24. r.c. 2907.241 (Loitering to Engage in Solicitation);

25. r.c. 2907.25 (Prostitution);

26. r.c. 2907.31 (Disseminating Matter harmful to Juveniles);

27. r.c. 2907.311 (Displaying Matter harmful to Juveniles);

28. r.c. 2907.32 (Pandering Obscenity);

29. r.c. 2907.321 (Pandering Obscenity Involving a Minor);

30. r.c. 2907.322 (Pandering Sexually Oriented Matter Involving a Minor);

31. r.c. 2907.323 (Illegal use of a Minor in nudity-Oriented Material or Performance);

32. r.c. 2907.33 (Deception to Obtain Matter harmful to Juveniles);

33. r.c. 2907.34 (compelling Acceptance of Objectionable Materials);

34. r.c. 2909.02 (Aggravated Arson);

35. r.c. 2909.22 (Support of Terrorism);

36. r.c. 2909.23 (Terrorist Threats);

37. r.c. 2909.24 (Terrorism);

38. r.c. 2911.01 (Aggravated robbery);

39. r.c. 2911.02 (robbery);

40. r.c. 2911.11 (Aggravated Burglary);

41. r.c. 2911.12 (Burglary);

42. r.c. 2913.44 (Personating an Officer);

43. r.c. 2917.01 (Inciting to Violence);

44. r.c. 2917.02 (Aggravated riot);

45. r.c. 2917.03 (riot);

46. r.c. 2917.31 (Inducing Panic);

47. r.c. 2917.33 (hoax Weapon of Mass Destruction);

48. r.c. 2919.12 (Abortion Without Informed consent Prohibited);

49. r.c. 2919.121 (unlawful Abortion);

50. r.c. 2919.13 (Abortion Manslaughter);

51. r.c. 2921.02 (Bribery);

52. r.c. 2921.03 (Intimidation);

53. r.c. 2921.04 (Intimidation of crime Victim or Witness);

54. r.c. 2921.05 (retaliation);

55. r.c. 2921.11 (Perjury);

56. r.c. 2921.34 (Escape);

57. r.c. 2921.41 (Theft in Office);

58. r.c. 2923.122 (conveyance of Possession of Deadly Weapons or Dangerous Ordnance in School Safety Zone);

59. r.c. 2923.123 (Illegal conveyance, Possession or control of a Deadly Weapon or Dangerous Ordnance in a courthouse);

60. r.c. 2923.161 (Improperly Discharging Firearm at or Into habitation or School Safety Zone);

61. r.c. 2923.17 (unlawful Possession of Dangerous Ordnance; Illegally Manufacturing or Processing Explosives);

62. r.c. 2923.21 (Improperly Furnishing Firearms to a Minor);

63. r.c. 2925.02 (corrupting Another with Drugs);

64. r.c. 2925.03 (Trafficking Offenses);

65. r.c. 2925.04 (Illegal Manufacture of Drugs or cultivation of Marihuana);

66. r.c. 2925.041 (Assembly or Possession of chemicals used to Manufacture controlled Substance with Intent to Manufacture controlled Substance);

67. r.c. 2925.05 (Funding of Drug or Marihuana Trafficking);

68. r.c. 2925.06 (Illegal Administration or Distribution of Anabolic Steroids);

69. r.c. 2925.13 (Permitting Drug Abuse);

70. r.c. 2925.22 (Deception to Obtain a Dangerous Drug);

71. r.c. 2925.23 (Illegal Processing of Drug Documents);

72. r.c. 2925.24 (Tampering with Drugs);

73. r.c. 2925.32 (Trafficking in harmful Intoxicants; Improperly Dispensing or Distributing nitrous Oxide);

74. r.c. 2925.36 (Illegal Dispensing of Drug Samples);

75. r.c. 2925.37 (Possession of or Trafficking in counterfeit controlled Substances);

76. r.c. 2927.24 (contaminating Substance for human consumption or use);

77. r.c. 3716.11 (Placing harmful or hazardous Objects in Food or confection);

78. r.c. 2905.04 as it existed prior to July 1, 1996 (child Stealing);

79. r.c.2919.23 that would have been a violation of r.c. 2905.04 as it existed prior to July 1, 1996 had the violation been committed prior to that date);

80. Felonious Sexual Penetration, in violation of former r.c. 2907.12;

81. A violation of an ordinance of a municipal corporation that is substantively comparable to any of the aforementioned offenses.

2. non-licensed persons were discussed in Criminal Background Requirements Imposed by the State of Ohio for Individuals Employed by Educational Institutions, as published in the 2010 edition of the Vindicator.

3. r.c. 3319.39(B)(1) lists the following criminal offenses as bars to employment, unless the applicant can establish rehabilitation:

a. r.c. 2903.01 (Aggravated Murder);

b. r.c. 2903.02 (Murder);

c. r.c. 2903.03 (Voluntary Manslaughter);

d. r.c. 2903.04 (Involuntary Manslaughter);

e. r.c. 2903.11 (Felonious Assault);

f. r.c. 2903.12 (Aggravated Assault);

g. r.c. 2903.13(Assault);

h. r.c. 2903.16 (Failing to Provide for Functionally Impaired Person);

i. r.c. 2903.21 (Aggravated Menacing);

j. r.c. 2903.34 (Patient Abuse of neglect);

k. r.c. 2905.01 (kidnapping);

l. r.c. 2905.02 (Abduction);

m. r.c. 2905.05 (criminal child Enticement);

n. r.c. 2907.02 (rape);

o. r.c. 2907.03 (Sexual Battery);

2991 Magazine.indd 29 3/30/11 3:33 PM

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p. r.c. 2907.04 (unlawful Sexual conduct With a Minor);

q. r.c. 2907.05 (gross Sexual Imposition);

r. r.c. 2907.06 (Sexual Imposition);

s. r.c. 2907.07 (Importuning);

t. r.c. 2907.08 (Voyeurism);

u. r.c. 2907.09 (Public Indecency);

v. r.c. 2907.21 (compelling Prostitution);

w. r.c. 2907.22 (Promoting Prostitution);

x. r.c. 2907.23 (Procuring);

y. r.c. 2907.25 (Prostitution);

z. r.c. 2907.31 (Disseminating Matter harmful to Juveniles);

aa. r.c. 2907.32 (Pandering Obscenity);

bb. r.c. 2907.321 (Pandering Obscenity Involving a Minor);

cc. r.c. 2907.322 (Pandering Sexually Oriented Matter Involving a Minor);

dd. r.c. 2907.323 (Illegal use of a Minor in nudity-Oriented Material or Performance);

ee. r.c. 2911.01 (Aggravated robbery);

ff. r.c. 2911.02 (robbery);

gg. r.c. 2911.11 (Aggravated Burglary);

hh. r.c. 2911.12 (Burglary);

ii. r.c. 2919.12 (Abortion Without Informed consent Prohibited);

jj. r.c. 2919.22 (Endangering children);

kk. r.c. 2919.24 (contributing to unruliness or Delinquency);

ll. r.c. 2919.25 (Domestic Violence);

mm. r.c. 2923.12 (carrying concealed Weapons);

nn. r.c. 2923.13 (having Weapons While under Disability);

oo. r.c. 2923.161 (Improperly Discharging Firearm at or Into habitation or School Safety Zone);

pp. r.c. 2925.02 (corrupting Another with Drugs);

qq. r.c. 2925.03 (Trafficking Offenses);

rr. r.c. 2925.04 (Illegal Manufacture of Drugs or cultivation of Marihuana);

ss. r.c. 2925.05 (Funding of Drug or Marihuana Trafficking);

tt. r.c. 2925.06 (Illegal Administration or Distribution of Anabolic Steroids);

uu. r.c. 3716.11 (Placing harmful or hazardous Objects in Food or confection);

vv. r.c. 2905.04 as it existed prior to July 1, 1996 (child Stealing);

ww. r.c.2919.23 that would have been a violation of r.c. 2905.04 as it existed prior to July 1, 1996 (Interference with custody if such offense would have constituted a violation of child Stealing (r.c. 2905.04) as said statute existed prior to July 1, 1996);

xx. r.c. 2925.11 that is not a minor drug possession offense (Drug Possession Offenses);

yy. Felonious Sexual Penetration, in violation of former r.c. 2907.12.

zz. Any violation of “an existing or former law of this state, another state, or the united States that is substantially equivalent” to any of the above-listed offenses will also be a bar to employment. See, r.c. 3319.39(B)(1)(b).


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vindicator 31

Sinclair’s view is straightforward: free choice exists and most individuals are capable of changing the environment in which they find themselves. It’s easy enough to see how this view can be seen through the multifaceted prism of our legal system.

The concept of “influence by osmosis”1 was explained in a recent issue of the Vindicator as a systematic and progressive conditioning of another’s beliefs, thereby causing the other to adopt a disingenuous version of the truth. Many times the “victim” of such “influence by osmosis” is subjected to what is called “ambient information.” (1) That outside information corrupts the recipient’s understanding of the facts of a situation to such a degree that the pure version is destroyed in the process. The process can be subtle — sometimes undetectable to most, but the ramifications, particularly in law, can be tremendous.

Think of a bullfrog plunged into hot water. It will jump out of the pot because of the sudden, uncomfortable change in temperature. However, the same bullfrog conditioned in water that gradually increases in temperature will eventually boil to death. Many “victims” of “ambient information” are conditioned in a similar way by being immersed in an environment that subtly becomes toxic over

time. “Ambient information” and “influence by osmosis” work much the same way and occur more often in family and criminal law than one might expect.

The vehicle can be nonverbal communication or gossip or any number of things that slowly raise the temperature in the pot. This concept can affect or effect anyone subjected to a potentially protracted criminal, civil or domestic law case. The defendant (or plaintiff ) becomes the embodiment of the information they choose to accept. More times than not, it’s human nature to be quick to accept information that casts him or her in a positive or good light. However, information that makes them appear bad or that could adversely affect their future is not easily accepted or, at times, completely disregarded. Then counsel must encourage the defendant to accept reality. This is often a difficult task. Effective counsel includes helping defendants to examine — and accept — the reality of their circumstances, which may include jail or prison time, or other adverse consequences associated with bad behavior, irrational decisions, or even mistakes in judgment they don’t particularly want to face.

It is always important to be mindful that the best historian of the facts is a client who actually committed the crime. Innocent clients are poor historians, which is why it is so difficult to disprove a negative. Polygraph

A practical Approach to Use of polygraph

William Evans

By WILLIAM EVAnS

“you are the embodiment of the information you choose

to accept and act upon. To change your circumstances,

you need to change your thinking and subsequent actions.”

ADLIn SIncLAIrAuThOr AnD MOTIVATIOnAL SPEAkEr

2991 Magazine.indd 31 3/30/11 3:34 PM


testing is an extremely useful tool in the assessment of which type of client you are representing. After all, none of us is a mind reader.

Innocent or guilty, a client must adopt ownership of his or her own defense strategy. The dynamics leading to client’s understanding of the strategy require gaining client control. A successful defense strategy may be to achieve a guilty plea to lesser and included offense(s), or perhaps the client’s acceptance of guilt while positioning himself or herself for a more favorable sentence or consideration by the parole Board. Getting a client to face the truth, confess wrongdoing and accept responsibility — even in a confidential setting — is not always a simple task for defense counsel.

A confidentially administered polygraph examination assists the defense counsel in encouraging the client to admit the facts necessary to advance a better defense on the client’s behalf, whether it be through a trial, plea bargaining, the investigative process, or just for defense counsel’s own background knowledge. Interestingly, it is not unusual to conduct private/confidential polygraphs to protect counsel from a client’s claims of ineffective assistance of counsel in the event that client is convicted at trial. Notably, a very high percentage of defendants who take a private/confidential polygraph will confess, or provide inculpating admissions, should they not “pass” their polygraph examination. Naturally, those who are truthful, can utilize the results in a defense strategy under the Daubert2 motion for admissibility of the polygraph examination results absent agreement and stipulation under Souel.3 Alternatively the results may be admissible under State of Ohio v. Sharma CR 06-09-3248. Each case was cited and briefly discussed in the article, “The Utility and Admissibility of polygraph Examinations,” in the Winter 2010 Vindicator.4

Adlin Sinclair’s quotation is quite relevant when considering client “control.” Simply put, if clients are not willing to admit the truth about their involvement, they may be stuck with less desirable outcomes than had they chosen to accept the truth and admit it to the polygraphist and counsel, allowing for a better defense strategy and perhaps more favorable results.

hOW TO APPrOAch AnD PrEPArE ThE cLIEnT FOr TESTIngEnsure that the client gets a good night’s sleep prior to testing and avoids using intoxicants. If on medication, he or she should continue taking it as prescribed. Advise that the use of barbiturates, amphetamines, hallucinogens or similar drugs is readily detected by an astute polygraphist and deemed a counter-measure tactic. You should also advise that test anxiety and nervous tension is normal in most examinees and that those feelings will not have a negative impact on test results.

Do not go into technical detail about how the polygraph works. Generally, discussion of such matters will only confuse the person. It is, however, appropriate for counsel to explain that the polygraph records a variety of response(s) that cannot be controlled, such as heart rate and blood pressure. Do not elaborate further. Allow the polygraphist to explain the involuntary nervous system responses and the recording parameters. If you’re not accompanying your client to the polygraph suite, advise him that it is appropriate and customary to sign a waiver and release form before the testing; everything is confidential and privileged.

hELPIng ThE POLygrAPhIST PrEPArE FOr TESTIngA written synopsis of case facts, police reports, newspaper clippings or other documents will assist in structuring proper test questions. By providing this information to the polygraphist well before the test, time will be saved in explaining the case.

provide the polygraphist with information about any of the client’s health concerns and psychological disorders. These conditions do not necessarily preclude accurate polygraph testing, but they should be made known to the examiner before the test.

Always tell the polygraphist whether your client has undergone prior polygraph testing. The polygraphist should also be advised of anything else, such as unrelated guilt feelings the client may have, that could affect results.

provide the polygraphist with the prosecutor’s version of facts as well as your client’s. It is important the polygraphist know both sides in detail so that the appropriate test and methodology and test questions can be used during the examination. Full disclosure is necessary. The polygraphist will be fully prepared and counsel’s presence will not be necessary. All preliminary material can be handled over the telephone.

FPO

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vindicator 33

ThE POLygrAPh PrOcEDurE AnD ITS uSEprocedurally, most polygraph examinations are somewhat similar, although test question formats vary slightly. The polygraph examination will begin with a pre-test interview and explanation of testing procedures, as well as the polygraph device and its attachments. The examination will take 2 to 3 hours and include a series of tests lasting about 4-5 minutes each. The “dialogue phases” of the polygraph examination are a critical component to a well structured examination.

During the pre-test interview, the polygraphist will complete a biographical questionnaire and gather information about client’s personal history and physical/psychological condition. During this interview, the polygraphist will also attempt to resolve inconsistencies in the client’s version of fact(s), enabling the polygraphist to comprehend the client’s version while insuring an accurate evaluation of the test’s results. Counsel may observe and could compare statements given to the polygraphist with the one(s) given during private consultation. Besides evaluating the statements for consistency, the counsel can use this portion of the interview to assess how well the client will stand up under cross examination at a later date.

In conclusion, private/confidential polygraph testing has virtually no “down side”; to the client, and may greatly assist in the “theory of defense.” In fact, guilty or innocent, the process will advance the case, posturing it for more efficient closure. n

___________________________________

WOrkS cITED

1. To the author’s knowledge, this is the first use of these terms relative to human behavior/condition.

1. Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th cir.1995); 509 u.S. 579 (1993).

2. State v. Souel (1978), 54 Ohio St. 2d 123, 372 n.E. 2d 1318, 1323-24 (Ohio 1978).

3. Evans, William., “The Utility and Admissibility of Polygraph Examinations.” 15, Vindicator, Winter 2010.

___________________________________

Mr. Evans is a neutral expert, with law enforcement agencies, defense and

prosecuting attorneys forming his client base. he was first certified as a law

enforcement polygraphist at the national Training center of Polygraph Science

and later trained for computerized polygraph testing at the Department of

Defense Polygraph Institute; is currently certified by the American Polygraph

Association for post conviction sex offender testing through the Maryland

Institute of criminal Justice. he has lectured nationally, and internationally on

the topic of polygraph, and is adjunct faculty in the Department of criminal

Justice, university of Akron. he owns Poly-Tech Associates, Inc. and can be

reached at (330 434-2344; www.polytechassoc.com.

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2991 Magazine.indd 33 3/30/11 3:34 PM


EvaLuatiNg OhiO’S LiFE taiL

SExuaL viOLENt PrEdatOr

iNdiCtmENt SPECiFiCatiON:The Necessity of a Sexual Offender Violence Risk Assessment at SVPS HearingBy JOhn MATThEW FABIAn, PSy.D., J.D., ABPPBOArD cErTIFIED FOrEnSIc & cLInIcAL PSychOLOgISTcLInIcAL nEurOPSychOLOgIST

FPO

2991 Magazine.indd 34 3/30/11 3:34 PM

vindicator 35

InTrODucTIOn TO OhIO’S SExuALLy VIOLEnT PrEDATOr

InDIcTMEnT SPEcIFIcATIOn & SEnTEncIng PrOcESS

In 1997, the State Legislature of Ohio enacted legislation that created

the sexual violent predator specification (hereinafter, “SVPS”). See,

Orc chapter 2971. A SVPS is statutorily defined as “a specification,

as described in section 2941.148 of the revised code, that charges

that a person charged with a violent sex offense, or a person charged

with a designated homicide, assault, or kidnapping offense and a

sexual motivation specification, is a sexually violent predator”.

See, Orc 2971.01(I).

In order for the sentencing enhancement provisions set forth in Chapter 2971 of the Ohio Revised Code to apply, a defendant must be charged with a qualifying underlying offense, as set forth above, as well as a SVpS in the indictment. There are essentially two classes of underlying offenses which may be enhanced by inclusion of an SVpS. These two classes of underlying offenses are: 1) a violent sex offense; and 2) a designated homicide, assault, or kidnapping offense with a sexual motivation specification. Accordingly, in order for the indictment to properly include an SVpS, the underlying count in the indictment must charge a violent sex offense or must charge a designated homicide, assault, or kidnapping offense and a sexual motivation specification, as described in ORC 2941.147.

An SVpS included in the indictment must be set forth in substantially the following language: “Specification (or, specification to the first

count). The grand jury…further find and specify that the offender is a sexually violent predator.” See, ORC 2941.148.

If a SVpS is included in an indictment, the defendant may elect to have the court or jury determine the SVpS if the defendant is convicted of the underlying violent sex offense or designated homicide, assault, or kidnapping offense. If a defendant is convicted of or pleads guilty to an underlying offense as well as a

SVpS, the defendant’s sentence will be enhanced. In many instances, depending on the underlying offense and other circumstances, the sentence enhancement created by the SVpS includes a “life tail” in which the defendant can be incarcerated for life. This law is a “front end” get tough on sex offenders statute that has significant ramifications on many sex offenders who are charged with violent sex offenses, often with concurrent nonsexual violent offenses attached in the indictment. In other respects, this law is an alternative criminal sentencing statute to the civil commitment of sexual violent predators which about 20 states have implemented on the “back end” (civilly committing sex offenders after their prison term has expired). The objective of this article is to address the need for a sexual offense risk assessment during the sentencing phase to examine whether the convicted offender has a likelihood of committing future sexually violent offenses as the SVpS law requires a finding that the offender is likely to engage in future sex offending.

If a defendant is charged with a violent sex offense or a designated homicide, assault, or kidnapping offense and the indictment includes a SVpS, the defendant may elect to have the court instead of the jury determine the SVpS. See, ORC 2971.02. Once the defendant is convicted of the underlying offense, the second phase of the bifurcated trial will commence in which the judge or jury must

John Matthew Fabian, PSy.D., J.D., ABPP

2991 Magazine.indd 35 3/30/11 3:34 PM


determine whether the person is a Sexually Violent predator. ORC 2941.148 (B) states that, “[i]n determining whether a person is a sexually violent predator, all of the factors set forth in divisions (H)(1) to (6) of section 2971.01 of the Revised Code that apply regarding the person may be considered as evidence tending to indicate that it is likely that the person will engage in the future in one or more sexually violent offenses”.

ORC 2971.01(H) states: (1) “Sexually violent predator” means a person who, on or after January

1, 1997, commits a sexually violent offense and is likely to engage in the future in one or more sexually violent offenses.

(2) For purposes of division (H)(1) of this section, any of the following factors may be considered as evidence tending to indicate that there is a likelihood that the person will engage in the future in one or more sexually violent offenses:

(a) The person has been convicted two or more times, in separate criminal actions, of a sexually oriented offense or a child-victim oriented offense. For purposes of this division, convictions that result from or are connected with the same act or result from offenses committed at the same time are one conviction, and a conviction set aside pursuant to law is not a conviction.

(b) The person has a documented history from childhood, into the juvenile developmental years, that exhibits sexually deviant behavior.

(c) Available information or evidence suggests that the person chronically commits offenses with a sexual motivation.

(d) The person has committed one or more offenses in which the person has tortured or engaged in ritualistic acts with one or more victims.

(e) The person has committed one or more offenses in which one or more victims were physically harmed to the degree that the particular victim’s life was in jeopardy.

(f ) Any other relevant evidence.

As stated above, the determination of whether a person is a “sexually violent predator” requires a determination of the likelihood of a particular offender to commit future acts of sexual violence. Interestingly, the law does not require a sex offender risk assessment which is the best method to determine the likelihood of future sexual offending but the trier of fact may consider such evidence under statutory criteria (f ). The clinical and forensic assessment of the likelihood of future sexually violent offending is a significant and arduous undertaking, requiring the expertise of a competent mental health professional who is skilled in risk assessment.

Obviously, the law has grave consequences on the offender, because if the state establishes a SVpS, the defendant’s criminal sentence can be enhanced to penalties ranging from life without parole to indefinite sentences with the maximum being a life term of imprisonment, and judicial release and parole may be prohibited. Consequently, many defense attorneys are challenging the SVpS with a sexual violence risk

assessment during the SVpS phase of the bifurcated trial subsequent to the offender being convicted of the underlying offense.

Although the SVpS legislation may have good intentions of ridding the streets of violent sexual offenders, the statute may possess fundamental flaws in that it does not require a sex offender risk assessment and contains provisions that equate facts of a single offense, i.e., torture and physical harm for example1, with future sexual dangerousness. The importance of this finding is communicated by the fact that most sex offenders do not reoffend, and many offenders indicted with the SVpS are relatively low to moderate risk with no prior sex offenses on record.

It should be noted that in State v. Smith (2004), 104 Ohio St. 3d 106, the Supreme Court of Ohio held that a defendant must have already been convicted of a sexually violent offense in order for an indictment to contain a SVpS2 and, consequently, a “conviction of a sexually violent offense cannot support the specification that the offender is a sexually violent predator as defined in R.C. 2971.01(H)(1) if the conduct leading to the conviction and the sexually violent predator specification are charged in the same indictment.” Rather, the court held that in order for an offender to be labeled as a sexually violent predator and be subject to a sentencing enhancement of up to life in prison without the possibility of parole, the offender must have had a previous conviction for a sexually violent offense prior to the indictment of the underlying offense. This holding made sense from a risk perspective analysis. In particular, past behavior is one of the best predictors of future behavior and, consequently, a prior sex offense should be required to determine likelihood of re-offending, especially if there is a potential for life imprisonment based on a finding of future sexual dangerousness.

However, the Ohio General Assembly amended R.C. 2971.01 in light of the Smith, supra, decision “to clarify that the Sexually Violent predator Sentencing Law does not require that an offender have a prior conviction of a sexually violent offense in order to be sentenced under that Law[.]” See 2004 Ohio Laws File 163 (Am.Sub.H.B. 473); State v. Wagers (Preble, 2010), 12th Dist. No. CA2009-06-018, 2010-Ohio-2311.

As a result of this amendment, effective April 29, 2005, ORC 2971.01(H)(1) was amended to define a “[s]exually violent predator” as “a person who, on or after January 1, 1997, commits a sexually violent offense and is likely to engage in the future in one or more sexually violent offenses” (emphasis added).

Because there is currently no prior sex offense conviction requirement for a SVpS specification, prosecutors charge many first time sex offenders with a SVpS specification. In my experience, these SVpS cases are often cases involving violent and occasionally heinous allegations with apparent sexual motivations. Yet, the informed reader must appreciate that heinousness and egregiously violent sex offenses do not necessarily equate with sexual deviancy, nor a propensity to commit future similar crimes. Simply, sex offender research does not consistently support that

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vindicator 37

heinousness, victim injury, and use of weapon for example are correlated with future sexual recidivism.1 Accordingly, I will now address the current state of conducting forensic psychological sex offender risk assessments.

SExuAL OFFEnDEr rISk ASSESSMEnTSSEx OFFEnDEr TyPOLOgIESThe reader must appreciate that sex offenders are a heterogeneous group. There are several distinctions or classes of sex offenders including but not limited to: 1. Rapists 2. Child molesters 3. Sex offenders perpetrating post-pubescent females, 14-17 years of

age (sometimes referred to as hebephiles when victims are female) 4. Crossover sexual offenders — individuals whose victims are from

multiple age, gender, and/or relationship categories 5. Sex offenders who have engaged in both hands-on sex offending

and pornography possession 6. Non-contact sex offenders including voyeurs (peeping type

offenders and exhibitionists) 7. Non-contact pornography possession offenders and Internet

solicitation(importuning offenders)

An uPDATE On currEnT SEx OFFEnDEr rISk ASSESSMEnT When evaluating the risk assessment for sex offenders, the expert witness must consider the following issues in his evaluation: 1. Static (historical) factors related to sexual recidivism 2. Dynamic (changeable) factors related to sexual recidivism 3. General sex offender population base rates of re-offending 4. Ohio sex offender population base rates of re-offending 5. Actuarial risk assessment instrument data

rISk FAcTOrS FOr SExuAL rEcIDIVISMThe literature on sex offenders has distinguished static factors (unchangeable and historical factors such as number of prior cases and history of stranger victims for example), versus dynamic risk factors which are changeable and malleable factors that can be amenable to management and rehabilitation such as substance abuse, depression, social isolation, and hostility towards women. Unfortunately for criminal defense attorneys, they have to accept their clients as they find them. Some sex offenders have prior sex offenses, including allegations, arrests, charges, and convictions. Charges and convictions are considered more serious due to their definitive nature, and most risk and recidivism studies focus on re-convictions. The static factor such as prior sex offense history is perhaps the strongest predictor of future sexual re-offending. The following are a breakdown of both static and dynamic risk factors that are predictive of future sex offending:Static factors: 1. Number of prior sexual offense(s) 2. History of deviant/diverse victim choices (unrelated and stranger

victims, children, male victims, crossover victims of both different gender or different ages)

3. History of multiple victims 4. History of sexual deviancy indicated by types of offending, diagnosis,

and plethysmographic assessment 5. History of antisocial personality disorder/psychopathy 6. History of antisocial orientation (unstable criminal lifestyle,

impulsivity, lack of employment, substance abuse, intoxication during offense

7. Beginning sex offending at a young age (25 years of age or younger) 8. History of sex offender treatment termination 9. History of chronic substance abuse problems, i.e., substance

dependence, or history of using substances during sex offending 10. History of violation of community supervision, especially with a sex

offense violation 11. History of high sexual drive strength and hypersexuality as well as

sexual preoccupations (high rates of sexual interest and activities, significant use of pornography

12. History of offense planning

As mentioned, dynamic risk factors are changeable and include the following: 1. Sexual preoccupation- intense viewing of pornography, use of

prostitutes, and high rates of sexual interests and activities 2. Alcohol and drug intoxication before or during the sex offense 3. Noncompliance with supervision 4. Association with criminal peers and antisocial lifestyle 5. Negative affect and depression and problems controlling anger,

frustration, hostility 6. General self-regulation problems and sexual regulation problems 7. Attitudes supporting and condoning sexual interest in children 8. Attitudes supporting and condoning nonconsensual sexual contact

with women (violence to women) 9. Emotional identification with children and child oriented lifestyle 10. Intimacy deficits with women 11. Age, the older one gets, the less likely they are to reoffend

When considering both static and dynamic risk factors, they are incremental in nature, i.e., the more there are, the higher the risk for the individual. Again, static and historical risk factors the offender is stuck with, however, dynamic risk factors may be the focus for risk management relevant to parole, probation, and treatment. While SVpS hearings are often focused on the facts of the instant offense, the expert witness must consider these offenses not as to their heinous nature, but as to other issues such as how long ago the offenses occurred, what type of victim(s) were assaulted, whether alcohol/drugs were involved to alter offender behavior or were provided to the victim to instill compliance, whether the offender was on supervision at the time, and what life stressors was the offender experiencing at the time of the offense. The expert must consider the defendant’s prior history including the frequency, severity, and diversity of sex offending. Each prior sex offense must be examined in the context of the defendant’s history and sexual offending patterns. Finally, the expert and attorney must keep in mind that when considering the defendant’s risk, a lack of prior sex offenses substantially lowers the offender’s risk which is often the case in these hearings.

2991 Magazine.indd 37 3/30/11 3:34 PM

nO SEx SEx OFFEnDEr TyPE rEcIDIVISM rEcIDIVISM

rapists 82.5% 17.5%

child Molesters

Extrafamilial 91.3% 8.7%

child Molesters

Incest 92.6% 7.4%


hOW OFTEn DO SEx OFFEnDErS rEOFFEnD? gEnErAL BASE rATES OF OFFEnDIngA “base rate” is the actual rate of a specific type of offending (sex offending) over a specific period of time within a specific population of offender. Obviously the issue of base rates is complex given the fact that the rate of offending may be based in some studies by re-arrest, re-charge, or re-conviction. However, we will try to consider re-conviction as that is the consistent re-offending marker in most studies of sexual recidivism.

In the research field of sex offending, the base rates of recidivism are typically about a 13% re-conviction rate over 4-5 years while at risk in the community after release from prison. Re-arrest recidivism rates are higher. Hanson and Bussière (1998) found a sexual recidivism rate of 13% among 23,393 offenders with an average follow-up period between 4-5 years.3 Combining 10 samples (n = 4,724), Harris and Hanson (2004) found sexual recidivism rates of 14%, 20%, and 24% at 5, 10, and 15 years, respectively.4 However, Furby and colleagues (1989) found a 4% base rate recidivism rate within 12 years of follow-up time after re-conviction.5 The New York Department of Corrections followed a group of sex offenders released for 9 years and found a base rate of recidivism of 6%.6

BASE rATES OF OhIO’S SEx OFFEnDErSIt is very important for the expert forensic psychologist to be familiar with the literature regarding sex offenders in Ohio. It is best practice to compare sex offenders one is assessing with groups of sex offenders in the same state/region. Accordingly, the expert evaluating and the attorney representing an Ohio sex offender must also consider the base rate of sexual offending for Ohio’s sex offenders released from prison. We will consider the 10 year recidivism data prepared by the Ohio Department of Rehabilitation and Corrections. The actual base rate of sexual recidivism for Ohio’s sex offenders over a 10 year span including technical violations of supervision conditions was 11%.7 This rate was comprised of recommitment for a new crime— 8% for new sex offenses and for sexually related technical violations— 3% including 1.3% for recommitment to prison for technical violation sex offenses and 1.7% for sex lapses. Rapists’ sexual recidivism baserates were 17.5% over 10 years, extrafamilial child molesters’ sexual recidivism baserates were 8.7% over 10 years, and incest child molesters sexual recidivism baserates were 7.4% over 10 years (Table 1). Of all the sex offenders who returned to an Ohio prison for a new sex offense, about 50% did so within two years, and 66% did so within three years. Therefore, the failure rate of sexual recidivism amongst offenders is relatively rapid which is consistent with national sexual recidivism research.

The ODRC data offers other interesting sex offender recidivism facts. For example, Table 2 indicates sexual recidivism rates based on charges the offenders were initially charged with before exiting prison.

The ODRC sex offender data informs us that most sex offenders do not re-offend. Re-conviction rates for sex offenses and/or sex related technical violations for Ohio’s sex offenders were 11% over 10 years while at risk in the community after release from prison. The data must be evaluated by the expert witness and the lawyers and judge or jury when considering a risk assessment evaluation at an SVpS hearing as to the particular offender’s likelihood of re-offending.

ThE uSE OF AcTuArIAL rISk ASSESSMEnT InSTruMEnTSWhen assessing sexual offenders, primarily rapists and child molesters who have committed hands on sex offenses, a forensic psychologist should utilize actuarial risk assessment instruments such as the Static 99 and now the Static 99 Revised, the Rapid Risk Assessment for Sexual Offender Recidivism (RRASOR), and the Minnesota Sex Offender Screening Tool-Revised (MnSOST-R). The actuarial method is based on comparing an individual’s background to a norm-based reference group. A given offender’s score on an actuarial instrument describes that he shares specific characteristics with a subgroup of offenders in a certain research sample, a percentage of whom re-offended during a specific follow-up period. The test data include statistically significant static and historical sexual violence risk factors. The data provide a probabilistic risk estimate of a particular outcome (sexual violence) over a specified period of time. The actuarial table in essence is like an insurance grid examining risk factors for driving insurance (i.e., prior accidents, DUI’s, young driver’s age, type of car, poor education, single marital status, etc.). Actuarial instruments essentially focus on static (historical) risk factors that have been found to be correlated with sexual re-offending for child molesters and rapists. They are not specifically designed to be used with juvenile sex offenders, non-contact sex offenders (pornography only offenders) and are less useful with incest offenders.

For example, the Static-99 is comprised of 10 risk factors that empirical research has informed us are related to sexual recidivism. These items are loaded either on sexual deviancy items (i.e., male victim, non-contact sex

SEx OFFEnSE cOnVIcTIOn SExuAL rEcIDIVISM

rape 15.8%

Sexual Battery 8.9%

gross Sexual Imposition 9.4%

corruption Of A Minor 9.9%

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FPO

2991 Magazine.indd 39 3/30/11 3:34 PM


offenses) or on antisocial orientation (i.e., prior criminal sentencing dates, concurrent conviction for non-sexually violent crime). The Static-99 factors weighing most heavily are prior sex offense(s). Notably, the Static-99 R takes a closer look at the age related issue. Critically, the risk assessment should always consider the age of the defendant both at the age of commencement of sex offending as well as when the defendant will be released from prison. The Static-99 R takes into account the latter, when the offender will be released from prison. This is important, as age diminishes risk and the risk assessment in a SVpS hearing must emphasize the offender’s risk at release from prison in the future, not currently when convicted and being sentenced.

The use of actuarial instruments is one important factor to consider when examining sexual recidivism. The instruments offer better predictive validity than clinical experience/judgment alone and should not be clinically adjusted as this would violate their statistical foundation. However, the psychologist should not rely solely on actuarial data, rather base rate and dynamic risk factor data should also be considered.

AnOThEr WOrD On AgE AnD rISkAge diminishes risk. Simply put, the older the offender (whether sexual, violent, or general criminal offender) the lower the risk. Rapists as a sex offender group see a steadily and more dramatically decrease in sex offenses after age 40. This is likely due to “age-related burnout” and a diminished criminal lifestyle, lowered sex drive, and decrease in victim access/opportunity. Conversely, child molesters who target extra-familial

victims may continue their offending more steadily than rapists and incest child molesters as these offenders are more fueled by deviant sex drive and may have difficulties controlling these drives. Their offending patterns are more relaxed typically after age 50. As mentioned, when considering the SVpS statute and the issue of likelihood of re-offending, the defendant’s aging is an important factor to consider and his age at potential release from prison is the key factor, not his age at sentencing.

cOncLuDIng rEMArkS The forensic psychologist conducting sexually violent predator risk assessments should incorporate the following risk assessment protocol. The practicing criminal defense attorney working these SVpS life tail sex offender cases should also consider these issues when taking on a case with such long-term consequences on the offender. Incorporate actuarial risk assessment instrument(s) when

appropriate based on the specific characteristics of the offender being evaluated;

Be current with the literature on sexual violence risk factors and apply them to the specific offender;

Incorporate an assessment of dynamic risk factors such as substance abuse/intoxication, poor coping skills, and anger management deficits and associate these deficits into the offender’s patterns of offending;

Emphasize a risk management plan to address these issues when he is released on supervision;

Consider diagnostic categories relevant to sexual disorders (paraphilias) including pedophilia, voyeurism, and exhibitionism- multiple paraphilias for one sex offender elevate risk;

Consider assessing whether the defendant qualifies for antisocial personality disorder and psychopathy (severe criminal personality). High levels of psychopathy elevate an offender’s risk level;

Assess the defendant’s age and how it is related to future risk. The defendant being contemplated for a life tail SVpS conviction is likely going to spend a significant amount of time incarcerated before being considered for release or indefinite incarceration for up to life. Given this fact, the risk assessment at the SVpS hearing should consider the offender’s likely age at the time his prison sentence expires, rather than at the time of sentencing.

The forensic psychologist should not get caught up with the heinousness or victim injury in a particular case, as this is not strongly correlated with risk.

In sum, the State of Ohio Sexual Violent predator Indictment Specification has serious consequences on offenders charged with violent sex offenses. The legislation may have noble intentions of protection of the public but it also has grave consequences of life imprisonment on the offender. Importantly, not all offenders charged with the SVpS are high risk offenders and in many cases this is their first sex offense charge and conviction. While the statute outlines factors to be considered as evidence tending to indicate that it is likely that the offender will engage in the future in one or more sexually violent offenses, a sex offender risk assessment may be introduced as an imperative piece of evidence in this determination. n

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NEED HALF PAGE AD

SAIA & PIATT

___________________________________

WOrkS cITED

1. Orc 2971.01(h)(2)(d) lists as a factor which may be considered as evidence tending to indicate that there is a likelihood that the person will engage in the future in one or more sexually violent offenses: “The person has committed one or more offenses in which the person has tortured or engaged in ritualistic acts with one or more victims”. Further, Orc 2971.01(h)(2)(e) lists as a factor: “The person has committed one or more offenses in which one or more victims were physically harmed to the degree that the particular victim’s life was in jeopardy”.

2. Orc 2971.01(h)(1), at the time of the State v. Smith, supra, decision, defined “sexually violent predator” as “a person who has been convicted of or pleaded guilty to committing, on or after January 1, 1997, a sexually violent offense and is likely to engage in the future in one or more sexually violent offenses.”

1. hanson, k., & Bussiere, M. (1998). Predicting relapse: A meta-analysis of sexual offender recidivism. Journal of Consulting & Clinical Psychology, (66), 348-362.

3. harris & Bussiere, 2004. http://www.ipce.info/library_2/han/hanson_98_tab_1.PDF.

4. Andrew J.r. harris and r. karl hanson, Public Safety and Emergency Preparedness canada: Sex Offender recidivism: A Simple question 2004-03. http://www.publicsafety.gc.ca/res/cor/rep/_fl/2004-03-se-off-eng.pdf

5. Furby, L., Weinrott, M., and Blackshaw, L. (1989). Sex Offender Recidivism: A Review. Psychological Bulletin, 105(1), 3-30.

6. State of new york Department of correctional Services: Profile and Follow-up of Sex Offenders released in 1986.

7. Ohio Department of rehabilitation and correction: Ten-year recidivism Follow-up of 1989 Sex Offender releases. http://www.drc.ohio.gov/web/reports/Ten_year_recidivism.pdf

___________________________________

Dr. John Matthew Fabian, PSy.D., J.D., ABPP, is both a forensic psychologist

and clinical neuropsychologist with fellowship training in clinical neuropsychology.

he is board certified by the American Board of Professional Psychology. Dr.

Fabian’s practice specializes in criminal forensic psychological and neuro-

psychological evaluations including competency to stand trial, insanity, death

penalty litigation, sexually violent predator, internet pornography/solicitation,

and juvenile homicide and waiver cases. Dr. Fabian was formerly director of

an Ohio court psychiatric clinic, and he has worked and testified in adult and

juvenile court psychiatric clinics, state forensic hospital, and federal prison

forensic psychiatric settings. In addition to teaching courses in forensic

psychology and neuropsychology and the law, he is published in law review,

peer review, and bar journals. Dr. Fabian has offices in cleveland and

columbus. (815 Superior Ave. cleveland 44114 and 85 E. gay St. columbus

43215). he can be reached at (216) 338-6462 [email protected]

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This article will detail the Ohio rules and regulations concerning ethical advertising in the age of the internet. It is not intended to offer specific legal advice nor should it be relied on for the same; it is only intended to alert you to the ethical guideposts of protected legal commercial speech. Whether you are a new or seasoned member to the Bar, it is important to be aware the ethical questions presented by the Age of the Internet.

Permissible Modes of AdvertisingThe Supreme Court of Ohio allows attorneys to advertise their services through the Internet.3 In fact, advertising in “on-line directory lists,” “domain-name registrations,” and “banner ads are permissible.”4 However, the advertisement must be in accordance with the OHRpC which prohibits the presentation of false, misleading, or nonverifiable information.5

The Muddle between the Ohio rules of Professional conduct and the Ohio code of Professional responsibilityIn 1974, the Ohio Code of Professional Responsibility (“OHCPR”) was enacted.6 Thirty-three years later, the OHCpR was superseded

Michael n. Oser

By MIchAEL n. OSEr, ESq. AnD DELILAh nunEZ, ESq.

criminal law attorneys practice in an ever changing world. This is no

more so than how clients find an attorney to represent them. no longer

is the old fashioned word of mouth referral sufficient to drive business

to your doorstep. An internet presence is as critical as e-mail and a

telephone. In the united States alone, the market penetration of the

internet is 77.4% and even though we have 5% of the world’s

population we have 13.5% of the world’s internet users. It is incredible

to believe that as of that back in november 1994, only five uS law firms

had an Internet presence.1

ethicaL advertising in the

AGE OF THE INTERNET

photo

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by the Ohio Rules of professional Conduct (“OHRpC”).7 The difficulty in understanding what is permissible advertisement has been muddled by the fact that most of the ethics opinions on this topic were issued before 2007, when the OHCpR was in effect, making it unclear as to whether or not the holdings would come out the same way under the new rules.8 However, while a “sizable portion of the case law dealing with the minutiae of the OHCpR (self-laudatory, client testimonials, etc.) is no longer relevant” it does shed some light as what is still considered “false or misleading” under Rule 7.1.9

Prohibition against Misleading StatementsOhio Rule 7.1 states:A lawyer shall not make or use a false, misleading, or nonverifiable communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading.

A truthful statement can also be misleading if (1) it omits a material fact or (2) “if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation.”10

An example of this is a website which details “a lawyer’s achievements on behalf of clients or former clients if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.”11 A second example is a website containing“[u]nsubstantiated comparisons of services or fees with those of another lawyer… if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated.”12 Additionally a statement about a money-back guarantee “creates unjustified expectations ‘that the lawyer has improper control or influence over the legal system.”13 However, the inclusion of a disclaimer in the aforementioned examples would preclude an ethical violation.14

Prohibition against nonverifiable communicationIn addition to the “false and misleading” prohibition, a firm’s website cannot make a “nonverifiable communication about the lawyer or the lawyer’s services.”15 In fact, a site containing statements touting a firm’s past successes, even though not inaccurate, is considered nonverifiable because there is no way to measure objectively results achieved.16 Other examples of nonverifiable communications would include statements such as “We Do It Well”;17 “the most qualified lawyer in Ohio”;18 “a leader in the creation of quality living trust documents”;19 and “Nationally noted. Amazingly affordable. Incredibly dedicated. He’s our neighbor and he’s known from coast-to-coast. Top notch legal services with a GUARANTEE of satisfaction and 24 hour a day access.”20

Then what is Permissible?Simply put, verifiable truthful communication “is generally permissible, even if there is some chance the comments may mislead the public, unless that chance is too great.”21 Examples of verifiable truthful communications include a firm’s website containing: a lawyer’s name or form name, address, and telephone number; the

kinds of services the lawyer will undertake; the basis on which the lawyer’s fees are determined, including prices for specific services and payment and credit arrangements; a lawyer’s foreign language ability; names of references and, with their consent, names of clients regularly represented …22

However, characterization of an attorney’s fees by use of terms such as “cut-rate, lowest, giveaway, below cost, discount, or special” is prohibited;23 whereas; the terms “reasonable” or “moderate” would be permissible.24 Besides these, there are no other explicit restrictions on fee information found within the OHRpC.25 Therefore, it is important to not forget about the restrictions on false or misleading information when using a phrase such as “‘[n]o attorney fee in personal injury cases, unless we get money for you’ without a statement clarifying whether client responsible for costs and expenses if no recovery.”26

With regards to Internet domain names, although there is a preference that lawyer’s use his or her law firm’s name, it is not improper to include other letters, words, or numbers, so long as the domain name is not false or misleading.27 So “for example, a domain name such as ‘will win every case for you’ would be false and misleading. Whereas, a domain name using the firm name or part of the firm name would be truthful and straightforward.”28

Protect yourselfWhen in doubt, include a disclaimer on your firm’s website in order to preclude an ethical violation.29 You may consider adding a disclaimer, especially if your website (1) is solely informational, (2) contains general information without regard to the applicability of the law in different scenarios, or (3) contains jurisdictional specific information.30 A good disclaimer may read ;

MICHAEL OSER ATTORNEY AT LAW provides this website for informational purposes only. Information on this site is not legal advice. The use of this website does not create, and is not intended to create an attorney-client relationship between you and MICHAEL OSER ATTORNEY AT LAW or any individual attorney in the firm. In the absence of an attorney-client relationship with you, any unsolicited email or other information that you may send to us will not be considered as confidential or privileged.

Now that you know the advertising rules of the Internet in Ohio, let the clients find you so you can practice your craft as the best criminal defense attorney in Ohio. n

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___________________________________

WOrkS cITED

1. Melissa Blades and Sarah Vermylen, Virtual Ethics for a New Age: The Internet and the Ethical Lawyer, 17 geo. J. Legal Ethics 637 (2004).

2. Supreme court of Ohio, 850 New Attorneys Admitted to the Bar in Ceremonies at the Ohio Theatre. http://www.supremecourt.ohio.gov/PIO/news/2009/barceremonies_110909.asp

3. Ohio Bar Association, “Ohio Supreme court regulates Lawyer Advertising,” Law You Can Use, www.ohiobar.org/members/pages/lawyoucanusedetail.aspx?itemID=201; Prof. cond. rule 7.2 cmt. 3.

4. Ohio rules of Prof. cond. (2009).

5. Prof. cond. rule 7.1.

6. Ohio code of Prof’l responsibility preface (1974).

7. Supreme court of Ohio, Ohio Rules of Court. www.supremecourt.ohio.gov/Legalresources/rules/

8. Jones Day & Arthur F. greenbaum, Ohio Legal Ethics. www.law.cornell.edu/ethics/oh/narr/Oh_nArr at rule 7.2.

9. Id. at rule 7.1.

10. Prof. cond. rule 7.1 cmt. 2.


12. Id.

13. Jones Day & greenbaum, supra note 8, at rule 7.1 (citing Bd. Of Comm’rs on Grievances & Discipline Op. 2003-2 (Apr. 11, 2003).


15. Jones Day & greenbaum, supra note 8, at rule 7.1.

16. Office of Disciplinary Counsel v. Shane, 81 Ohio St.3d 494, 496 (1998).

17. Medina County Bar Ass’n v. Grieselhuber, 78 Ohio St.3d 373 (1997).

18. Jones Day & greenbaum, supra note 8, at rule 7.1 (citing Columbus Bar Ass’n v. Dugan, 113 Ohio St.3d 370, 10 (2007).

19. Id. (citing Office of Disciplinary Counsel v. Bradely, 82 Ohio St.3d 261 (1998).

20. Office of Disciplinary Counsel v. Furth, 93 Ohio St.3d 173 (2001).

21. Jones Day & greenbaum, supra note 8, at rule 7.1.

22. Prof. cond. rule 7.2 cmt. 2, e.g. Prof. cond. rule 7.4

23. Prof. cond. rule 7.2 cmt. 2

24. Jones Day & greenbaum, supra note 8, rule 7.1.

25. Id.

26. American Bar Association, Model rules of Prof’l conduct r.517 (2007)(citing Ohio State Bar Ass’n Informal Op. 01-03, at 1 (June 1, 2001)).

27. Bd. Of comm’rs on grievances & Discipline Op. 99-4, 1999 Ohio griev. Discip. (June 4, 1999).

28. Id.


30. Jim calloway, Attorney Advertising in Cyberspace, 69 Ok Bar J. 29 (July 18, 1998).

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Colon, the 2008 decision which held that failure to include the appropriate mens rea rendered an indictment defective and constituted structural error, was the first to go. The decision had resulted in prosecutors, defense attorneys, and judges trying to figure out the mens rea for a host of crimes where no one had previously thought to raise the issue – in Colon, for example, we learned that causing serious physical harm during a robbery required a reckless intent – and in State v. Horner4 the court finally concluded that the game wasn’t worth the candle and overruled Colon, holding that an indictment passes muster as long as it tracks the language of the statute. Unfortunately, the court is still wading through the mens rea thicket, as evidenced by its December decision in State v. Johnson5. At issue there was the weapons under disability statute, which prohibits a defendant from “knowingly” possessing a weapon if he’s been indicted for or convicted of a drug offense. Eschewing the Model penal Code approach of using the intent element at the beginning of the statute (“knowingly possess”) to define the intent element throughout, the court held that each subsection had its own intent element. Or more than one, it turns out; the court held that the portion dealing with a conviction of a drug offense was strict liability, although it had held a year earlier in State v. Clay6 that the “under indictment” portion required a reckless intent. The court’s jurisprudence on whether a statute requires a mens rea, or whether the legislature has instead manifested an intention that it be strict liability, is still a work in progress.

In a series of decisions culminating in Bezak, the court has held that failure to properly impose post-release controls results in a void sentence. Londen Fischer took the argument to its logical conclusion. His 2001 conviction was affirmed on appeal, but in 2008 he filed a motion to vacate his sentence because the trial court had failed to invoke the proper mantra in imposing post-release controls. Fischer was given a de novo sentencing hearing, whereupon he appealed again, raising the same issues he had before and a couple of new ones for good measure. What about res judicata or law of the case? If his sentence was void, argued Fischer, there was no final appealable order, and since appellate courts have jurisdiction only over final appealable orders, his first appeal was a nullity as well. The court looked into the abyss – the prospect of having defendants convicted over a decade ago given “first” appeals from those convictions – and promptly retreated, and in State v. Fischer7 modified Bezak to hold that failure to properly impose post-release controls rendered the sentence only partially void. A year earlier in State v. Singleton8 the court had held that a de novo sentencing hearing was required if the sentence had been imposed before July 11, 2006. No more; now, only a hearing to properly impose pRC is necessary.

A year ago, one could have made a compelling case that Ohio law would be substantially

clarified by overruling three decisions: State v. Bezak1, State v. Colon2, and

State v. Rance3. The Supreme court went three for three.

criminaL LaW uPdatE – 2010

By ruSSELL S. BEnSIng

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Up until 1999, Ohio’s allied offense jurisprudence was a simple two-step process: the court first compared the elements of the two crimes to see if one could be committed without committing the other, and if so, whether they were committed with a separate animus. Then in State v. Rance the court announced that, in the first step, the elements of the offenses were to be compared in the abstract, without any reference to the underlying facts. The result was a mess, with some courts holding that a single stab wound could result in separate convictions and sentences for felonious assault with a deadly weapon, and with serious physical harm. Beginning with State v. Cabrales9 in 2008, the court made various attempts to patch up the holes in Rance, but finally gave up and in State v. Johnson10 overruled it. Johnson will need some clarification; it was only a plurality opinion, although all justices joined in the syllabus’ holding that embraced conduct as the focal point of the analysis. One of the major remaining questions will be the effect on predicate offenses. The defendant in Johnson had beaten his son to death, and the court held that his convictions of felony child murder should have merged with the underlying offense of child endangerment. There was a pre-Rance decision which held that involuntary manslaughter and aggravated robbery, the offense which had caused the death, didn’t merge. Also note that in State v. Whitfield11 the court held that when offenses are deemed allied, the prosecutor decides to choose the one on which sentence is imposed.

One case to survive was State v. Foster,12 the 2006 decision holding that the Ohio statute requiring judicial fact-finding for imposition of consecutive sentences was unconstitutional. Three years later, in Oregon v. Ice13, the U.S. Supreme Court rejected a constitutional challenge to a similar Oregon statute. Kenneth Hodge, who’d been given consecutive sentences for engaging in a virtual parody of criminal excess — he’d robbed some Boy Scouts who were selling Christmas trees — appealed, arguing that Ice implicitly overruled Foster and revived the statutes Foster had nullified. In State v. Hodge,14 the court resisted the state’s entreaties to distinguish the Oregon and Ohio statutes — there was no intellectually honest way of doing so – but concluded that Ice did not revive the law, and left it up to the legislature to reenact it if they so desired.

In State v. Bodyke,15 the court held the Adam Walsh Act violated the separation of powers doctrine by allowing the Attorney General to reclassify sexual offenders previously classified by court order under Megan’s Law. Unresolved here is what happens with offenders who were convicted before Megan’s Law, but released from prison after it took effect in 1997; the law provided that the Department of Rehabilitation and Corrections could ask the judge to conduct a sexual predator hearing, or else they were automatically classified as sexually-oriented or habitual sex offenders. The 1st District has held that reclassification of those defendants under AWA didn’t fall under Bodyke, because there was no “court entry” classifying them, and therefore no problem with the Attorney General changing that classification16. On the other hand, one of the three defendants in Bodyke fell into that exact situation, and the state raised the same argument in a motion to clarify Bodyke, which the court denied without further comment. Also note that several other arguments with regard the constitutionality of AWA, such as whether it’s an ex post facto law, were not decided in Bodyke and remain pending for resolution in other cases before the court.

plea bargains received another look in State v. Dye17, where the defendant had pled guilty to aggravated vehicular assault, then found himself indicted for homicide when the victim died several years later. In State v. Carpenter18, the court had held that a plea bargain foreclosed prosecution in such cases unless the state had specifically reserved the right to do so at the time of the plea. In Dye, the state argued that there really wasn’t a plea “bargain”: Dye had pled guilty to the indictment, not a lesser included offense. But the state dropped some of the specifications, and agreed to allow Dye to remain free on bond pending sentencing, and that was enough, said the court. Of note here too is the 8th District’s decision in State v. Latimore,19 where after agreeing to impose a 12-year sentence, the judge changed his mind when he found out the severity of the victim’s injuries, and gave Latimore the choice of withdrawing his plea or proceeding with sentencing. Not the way it works, said the appellate court: a plea bargain is a contract, and Latimore was entitled to specific performance of the promise of a 12-year sentence.

FPO

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There were two noteworthy cases from the U.S. Supreme Court. In Padilla v. Kentucky20, the court held that the defendant, a Honduran citizen, had received ineffective assistance counsel when his attorney told him there’d be no problem with deportation before his plea in a drug case. Wrong answer; any felony drug conviction results in deportation. The impact of Padilla in Ohio on that precise issue will be limited, because judges are required by statute21 to give a warning about immigration consequences. Failure to do so will almost always result in vacating the plea; indeed, two years ago the 8th vacated a plea that had been entered 48 years earlier on that basis. But Kentucky’s argument that the wrong advice was immaterial because it was on a collateral matter was flatly rejected by the Court. That raises the possibility that other collateral consequences could come into play. For example, the 1st District held that a minor misdemeanor possession charge was a “drug offense” making a defendant culpable of weapons under disability if he later possessed a gun22; it’s probable that the defendant’s attorney — if he had one — didn’t advise him of that consequence.

While the 2008 term was the year for big 4th Amendment decisions from the Supreme Court, the 5th Amendment took center stage in the 2009 term. The most notable decision was Berghuis v. Thompkins23, where the defendant was interrogated for three hours without him saying a word, at which point he finally made a damaging admission. The lower courts had tossed it out on the grounds that he hadn’t waived his Miranda rights, but the Court flipped that, deciding that the statement was admissible because he hadn’t clearly invoked his rights. The FBI manual advises agents to stop questioning a suspect unless the defendant gives an explicit waiver of his rights, so presumably there’ll be a new manual coming out. n

___________________________________

WOrkS cITED

1. 110 Ohio St.3d 1414 (2007)

2. 118 Ohio St.3d 26 (2008)

3. 85 Ohio St.3d 632 (1999)

4. 126 Ohio St.3d 466 (2010)

5. 2010 Ohio 6301 (S.ct. 2010)

6. 120 Ohio St.3d 528 (2008)

7. 2010 Ohio 6238 (S.ct. 2010)

8. 124 Ohio St.3d 173 (2009)

9. 118 Ohio St.3d 54 (2008)

10. 2010 Ohio 6314 (S.ct. 2010)

11. 124 Ohio St.3d 319 (2010)

12. 109 Ohio St.3d 1 (2006)

13. 555 u.S. 160 (2009)

14. 2010 Ohio 6320 (S.ct. 2010)

15. 126 Ohio St.3d 266 (2010)

16. Green v. State, 1st Dist. 2010 Ohio 4371

17. 2010 Ohio 5728 (S.ct. 2010)

18. 68 Ohio St.3d 59 (1993)

19. 2010 Ohio 1052 (8th Dist.)

20. 130 S.ct. 1473 (2010)

court appearance, hearing or oral argument

state or Federal court in cincinnati, ohio

conference room available at no cost to oacdL members

Bill [email protected]

www.BillGallagherlaw.com (513) 651-5666

21. r.c. §2943.031

22. State v. Robinson, 187 Ohio App.3d 253 (1st Dist. 2010)

23. 130 S.ct. 2250 (2010)

___________________________________

russell S. Bensing is the author of The Briefcase,

www.briefcase8.com, a legal blog featuring analysis

of Ohio law. he is a frequent speaker at seminars

on criminal law subjects for the Ohio State Bar

Association, the cuyahoga criminal Defense

Lawyers Association, and other groups.

russell S. Bensing: Standard Building,

1370 Ontario Street, Suite 1350,

cleveland, Ohio 44113

(216) 241-6650.

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ROADTRIp: LiBeriaBy ELIZABETh kELLEy

But since I returned from Liberia, I don’t complain — or at least, not as much. Last summer, I traveled to Liberia as part of a delegation of attorneys sponsored by the United Nations Commission on Drugs and Crime and the National Association of Criminal Defense Lawyers (NACDL). We were sent to train Liberian public defenders in trial procedure.

How do you conduct training in a country which is still ravaged by civil wars — where 70 percent of the country is illiterate and 80 percent is unemployed, where there is limited running water, plumbing, electricity or internet service, where the capital of Monrovia is a bombed-out shell of its former self ? On some level, our founding fathers started with less.

Liberia, a West African country smaller than the state of Ohio, was founded in 1848 by a group of American ex-slaves, and its government was modeled on that of the United States, with its three branches of government. In particular, Liberia’s constitution is similar to its American counterpart. In 2005, Ellen Johnson Sirleaf, a Harvard-educated banker and U.N. diplomat, was elected president in democratically conducted elections. Her administration has supported efforts like ours to rebuild the legal system.

We conducted our training at the Mamba point Hotel, a hospital which has been remade by its Lebanese owners into lodgings for visiting aid workers. Our students soaked up every word we spoke and peppered us

with questions during breaks. Each member of our training team arrived with ten complete sets of teaching materials because we knew in advance that there would not be any facility to make copies.

The Liberian Code of Criminal procedure is similar to the Federal Rules of Criminal procedure. Yet the local lawyers’ skill at implementing those rules is minimal. For example, as under the American Rules, all those accused of a crime in Liberia are entitled to know all the evidence that the prosecutor has against them, including any evidence of innocence. However, seldom do defense attorneys ask for this evidence and seldom is it given by prosecutors. Our team of attorneys worked

Like many criminal defense lawyers in cuyahoga county, I have complained about the

Justice center in cleveland — that the building looks as if it hasn’t been cleaned since the

reagan administration, that the elevators don’t work, and that the lines going through

security barely move. I also have complained about the way the system works, or doesn’t

work — that indictments are handed down without adequate investigation, that

prosecutors play games with pre-trial discovery, and that court filings can’t be obtained

on-line.

Elizabeth kelley

FPO

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with the Liberian attorneys to draft model requests for evidence, as well as motions to compel the production of evidence should prosecutors not oblige.

We concluded our training with mock trials at the Temple of Justice in Monrovia. On the outside, this is a majestic building, with a statue of Lady Justice in front and the words “Let Justice Be Done To All,” written beside the entrance. But not even the worst inner-city courthouse looks like this one does on the inside. Light fixtures have been ripped out and wires dangle from the ceilings. Chairs have been stolen, but, in an attempt to make the building functional, lawn chairs have been added. Once impressive judicial benches have been stripped of their woodwork. Courtrooms have signs warning, “No Bribes Allowed.” Any electricity the building has is provided by a generator, which hums so loudly that the proceedings inside several courtrooms can hardly be heard. Record keeping consists of large piles of papers, most not in file folders. Court reporters use manual typewriters and, with rapid hunt and peck, take down what they deem are key words.

I went to Liberia with the mistaken notion that due process was not part of the national psyche. Instead, I learned that Liberians have a different,

if not better understanding of due process. As one of our students explained to me, virtually every Liberian has seen relatives or friends taken away without any explanation and, often, without any news of their whereabouts or fate. The Temple of Justice may be dilapidated, but the belief in fundamental fairness remains strong and unbroken. This belief will rebuild Liberia. n___________________________________

Elizabeth kelley has a special commitment to representing people with intellectual

disabilities (such as mental retardation and autism spectrum disorders) and

mental illness (such as bi-polar disorder and post-traumatic stress disorder.)

She is a Life Member of the national Association of criminal Defense Lawyers,

is serving her second term on the board of directors, and chairs both the

corrections committee and the Mental health committee. She is also a Life

Member of OAcDL. She reviews books for The Federal Lawyer and edits a

column in The Champion. She served as the president of The Arc of greater

cleveland (formerly the center for Mental retardation) and serves on the

boards of hopewell (a therapeutic community for those with serious mental

illness) and The cleveland Play house. She provides television and radio

commentary throughout the country and hosts her own radio program,

Celebrity Court. her website is ElizabethkelleyLaw.com.

Sta

rt F

resh

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From the executive director

Through the years, we have lost some former presidents — Tom Miller, Jim Kura, Max Kravitz, and Don Schumacher. Tom Miller put together one of the largest, most successful drug seminars this association ever had. Jim Kura served as the Franklin County public Defender, then president of OACDL, then as Ohio public Defender. Max Kravitz was instrumental in developing the business aspects of the association. And Don Schumacher — I can’t think of anyone, past or present, who is single-handedly responsible for increasing membership. At one death penalty seminar, Don personally signed up more than 30 new members! These men will be forever remembered as pillars of this organization.

We have done many wonderful things. Friendships have been formed. We are going to celebrate that. To quote Jay Milano “We are going to get together and we are going to laugh, and smile, and tell old lies, and complain, and brag, and look at pictures and remember, and miss those gone.” On Friday, May 13, 2011 at the Westin Hotel, we are having a party. You are invited as the guest of honor.

Andrew Stevenson is putting together a block-buster seminar for Friday, May 13. Last year, Andrew brought us the Clydesdales – this year should be just as good! Immediately following the seminar we will have lots of good food, good drink, good company, and of course, a birthday cake!

Please make plans to see your friends on Friday the 13th of May.

Susan Carr

It’s hard to believe, but the OAcDL is celebrating 25 years this year.

While I was not here in the beginning, many of those that started this

wonderful organization still are. Our founding president, Jay Milano,

tells the story of how it all started those many years ago. (come to the

party and listen to Jay…I can’t do him justice in an article!) I know

those involved, including, but not limited to, Jay, John rion, Max

kravitz, Ted Stebbins, David Stebbins, ron Bailey, Scott Shaw, Tom

Miller, Dan hannon, and randy Dana had a great vision of what they

wanted for this organization. I would like to think we have not strayed

far from their original mission.

SuSAn cArr

dear memBers:

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Name

Address

Work phone Email Fax

County 2nd Email address (for List Serve)

1. please check which Membership Category you choose: _____ public Defenders $75.00 (full time employee of a public defender or legal aid society) _____ New member of the bar $75.00 (less than 2 years) _____ Regular Membership $175.00 _____ public Defender Board Member $175.00 _____ Board of Directors $350.00 _____ president’s Club $500.00 _____ Life Member $2,500.00 _____ Associate Member $35.00 (Attorneys are not eligible for Associate Membership)

2. please indicate the committee(s) you would be willing to serve on: _____ Amicus Brief _____ publications _____ DUI _____ CLE Seminars _____ Strike Force _____ Membership _____ Legislative _____ Indigent Defense

3. Do you wish to contribute to the James Kura Memorial Scholarship Fund? _____ $25 _____ $50 _____ $100 _____ other

Return this application with check made payable to OACDL; or charge your dues to your credit card; or pay with credit card online at www.oacdl.org.

_____ Mastercard _____ Visa _____ Discover

Credit Card # Expiration Date 3 digit security code on back

Signature

Ohio Association of Criminal Defense Lawyers Include me in the Directory?2720 Airport Drive, Suite 100 _____ Yes _____ NoColumbus, OH 43219 Please verify your information is correct.(614) 418-1824 or (800) 443-2626 Fax: (740) 654-6097 Email: [email protected]

The OACDL provides a service to criminal defense lawyers unlike no other organization in Ohio. With the help of members like you, we can be assured that the Ohio criminal defense bar will remain effective in protecting the rights of those who stand accused.

Among the many benefits available to our members are: • The 2010 Decennial OACDL Member Desk Directory – in

print again • Listserv – On-line resource providing members with the

thoughts, suggestions and experience of fellow practitioners by way of a 24-hour-bulletin board;

• Amicus Brief – The OACDL provides amicus support for criminal cases;

• Strike Force – the organization stands behind its members when they are in need;

• CLE Seminars at discounted rates to members; • Legislation and Lobbying – State government is lobbied by

providing testimony on proposed bills and working with other organizations with similar interests.

OACDL Membership

OACDL Dues are not tax-deductible as a charitable contribution for Federal Income Tax purposes. Dues may be deductible as an ordinary and necessary business expense subject to restrictions imposed as a result of Association lobbying activities. The Association estimates that the non-deductible portion of your annual dues, the portion allocable to lobbying is 19%.

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2720 Airport Drive Suite 100 • Columbus OH 43219(614) 418-1824 or (800) 443-2626 • Fax 740-654-6097 • [email protected]

presorted StandardU.S. postage

pAIDCleveland, OH

permit No. 2280

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Ohio's Senate Bill 77: A National Model of Reform

Documents

Transcript of Ohio's Senate Bill 77: A National Model of Reform