Law Day Theme – Miranda: More than Words

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

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

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

 

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

 

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

 

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

 

Campaigns of 19th Century

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

 

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

 

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

 

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

 

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

 

Current Speech Protection

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

 

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

 

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

 

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

 

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

 

Choosing a Justice – U.S. vs Ohio

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

 

Sources: American Bar Association and United States Courts

jg

Another Ohio Appellate Court Offers Video Access

You may know that we at the Ohio Supreme Court have streamed, recorded and archived our oral arguments since March 2004. Our website provides the links to updated materials.

Now the Ninth District Court of Appeals, based in Akron, has decided to begin posting its own oral arguments on YouTube. The Ninth District becomes the first of the 12 appellate courts in Ohio to use this platform for reaching the public.

Many people do not understand the appellate process. TV does not offer shows about courts of appeals, maybe because the work doesn’t seem dramatic. There are no witnesses, no evidence – just arguments presented to a panel of three judges about why a trial decision should be reversed or upheld.

The decisions by our appellate courts announce the law that must be followed in other cases within the district. Sometimes, if the district court decisions conflict, a case may need to be settled by our court. All the more reason that the courtroom door be open for public understanding of this important part of the legal process.

The U.S. Supreme Court so far has refused to allow cameras in the courtroom. As more state courts allow the public to see judges in action, perhaps the highest court in the nation will change its position and do the same.

Celebrating A Civil Rights Landmark

It has been 60 years since Brown v. Board of Education, the case in which the doctrine of “separate but equal” was finally struck down as unconstitutional by the U.S. Supreme Court.  The United States Courts website has compiled a list of materials for teachers who wish to study this landmark case.
 
The resources include:

1.     A prepared script for readers to reenact the case – participants hold their own copy of the script and read their respective parts but do not memorize their lines. The emphasis is on comprehension and student-centered learning.

2.     The history of Brown v. Board of Education – teacher materials include a video of a young Thurgood Marshall from the site, Teachers Domain.

 

3.     Profile of Justice Thurgood Marshall – a summary of his early life, education, and legal career.

Teachers may download an activity package with recommendations on how to use the material.   

Martin Luther King’s Dream of Justice

State and federal government offices, including the Ohio Supreme Court, will be closed on Monday to observe Martin Luther King Jr. Day.

More than 50 years ago,  Dr. King’s “I Have a Dream” speech inspired our nation. And today, students still learn about the meaning of the speech that continues to inspire.  Each February as part of the Supreme Court’s recognition of Black History Month we hear from the local junior division winner of the Martin Luther King Jr. Oratorical Contest.

It’s wholly appropriate that the Supreme Court hosts this celebration. The ideals that Dr. King outlined in 1963 are those of legal justice and equality. These are the hopes not just of one person, but are the ideals on which our country was founded and those that are to be upheld by our state and federal courts.

State law requires  each judge in Ohio to take an oath of office that promises to strive for justice and equal protection under law.  After swearing or affirming to support the Constitution of the United States and the Constitution of Ohio,  the judge promises to  “administer justice without respect to persons,”  and to faithfully and impartially discharge and perform all of the duties of the office according to the best of his or her ability and understanding.

These words regarding administering justice “without respect to persons” echo the portion of Dr. King’s speech that said: “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”

The U.S. Supreme Court building has the words “Equal Justice Under Law” prominently displayed.  We in the legal profession must continue to work toward equality and justice. And as a nation we can hope Dr. King’s words become more than a dream.

Women of the Court

A new portrait was unveiled this week in Washington D.C. that depicts the four women who have served on the U.S. Supreme Court: former Justice Sandra Day O’Connor and current Justices Ruth Bader Ginsberg, Sonia Sotomayor, and Elena Kagan. The portrait is located at the National Portrait gallery and was painted by artist Nelson Shanks.

The Ohio Supreme Court has had 10 women serve as justices. The first was Florence Allen, who served on the court from 1923 until 1934. It would be another 47 years before the second woman served on the bench. Blanche Krupansky was appointed to the bench in 1981. Since then, there have been eight more women either elected or appointed to the Supreme Court, including the state’s first female Chief Justice, Maureen O’Connor, who was elected in 2010. When I was elected as the 150th justice in 2004, Alice Robie Resnick, Deborah Cook, and Evelyn Lundberg Stratton had already been serving on the court. Yvette McGee Brown began her term in 2011.

It’s also important to note that since January 2011, the Ohio Supreme Court has had a continuous female majority. Here’s a picture taken last year in the Eighth District Courtroom under the historic phrase “This is a Government of Law Not of Men.”


Pictured left to right: Former Justice Yvette McGee Brown,

who lost in last year’s election; Chief Justice Maureen O’Connor;

Justice Judith Ann Lanzinger; and Former Justice Evelyn Lundberg Stratton,

who retired last year.

Since that picture was taken, two new justices, Sharon Kennedy and Judith French, have joined the court to continue the 4-3 female majority.

I’m honored to have served with all of my colleagues, women and men, who are dedicated to the law.

John Marshall’s Legacy of Independence

On every Fourth of July, Independence Day,  we celebrate what makes the United States of America different from other countries.  200 years ago the fourth Chief Justice of the U.S. Supreme court, John Marshall, was appointed by President John Adams.   For 34 years he headed the nation’s federal judiciary, which helps insure our independence.

Marshall was a member of the U.S. House of Representatives and was Secretary of State before being appointed Chief Justice.  He served during seven different presidential terms, dying in 1835 during Andrew Jackson’s second term.  He still holds the record for longest serving Chief Justice.

Before Chief Justice Marshall’s term , the Supreme Court was considered a minor part of the government.  Marshall not only made the judicial branch co-equal to the two other branches , as it is today, but he also presided over a case that announced the Supreme Court’s  authority to overrule the executive branch, legislative branch, states, and lower courts, when necessary.

In the significant case of  Marbury v. Madison, decided in 1803, the Supreme Court said that the U.S. Constitution is the supreme law of the land and that conflicting laws cannot be enforced. The Marshall court clarified that federal law supersedes state law, and that the Supreme Court is the federal court of last resort.  Marshall wrote opinions about the meaning of  ‘commerce’ in the Constitution, the protection  of private institutions from state interference, and explained that the Bill of Rights applied to states as well as the federal government.  These cases remain some of the most important in the court’s history.

So, as we watch the fireworks around the country this year, take time to think about those who contributed to today’s independent nation.  Although the judicial branch is sometimes overlooked, 200 years ago John Marshall’s influence changed the government, and gave federal courts power to enforce constitutional law.  Marshall is a giant of the judiciary and one of the many who have allowed our nation to flourish  and  to celebrate Independence Day for years to come.

The U.S. Supreme Court and Federal Cases

From time to time I blog about opinions of the Supreme Court of Ohio that explain the law that applies within our state. But as you know, we have a dual system of law. The U.S. Supreme Court announces federal law that applies to the entire country. 

That court was busy this last week, finishing its current term that began in October. The Supreme Court released opinions on the Voting Rights Act, marital status for same-sex couples, and land use regulations, among others. And although some Americans may disagree with a controversial court ruling, everyone must understand that our Constitution gives the U.S. Supreme Court the final word governing legal matters across all 50 states.

Not every case can reach the supreme court level.  Some state cases may wend their way to the Ohio Supreme Court, but even fewer state cases are heard by the U.S. Supreme Court. Even so, federal law affects everyone, whether we have a pending case or not. Part of our duties as American citizens and as voters is to understand the operation of each branch of government.

To get a better handle on the judicial branch and recent U.S. Supreme Court rulings, you may visit SCOTUSblog and click on the “plain English” posts on the decisions. There you will find a good summary of recent U.S. Supreme Court cases.

Red, White, and Blue and a Burning U.S. Supreme Court Case

Nearly 100 years ago, President Woodrow Wilson issued a proclamation to establish June 14 as Flag Day. As we mark the day today to honor the United States flag, I’d like to point out a federal case involving the flag and the protection of constitutional rights.

Landmark cases have far-reaching impacts. Texas v. Johnson is one of them.

In 1989, to protest the policies of the Reagan administration, Gregory Lee Johnson burned an American flag outside of the Dallas City Hall. He was arrested, but argued that his act was protected by the First Amendment because he was engaging in symbolic speech. The Supreme Court agreed and held that the constitution protects symbolic speech even when it is offensive.

Many of us have fond memories of reciting the Pledge of Allegiance when we began our school day. Because the flag is such a recognized symbol of the United States and is honored as dear to patriotic Americans, its desecration is a controversial means of political expression. Many would disagree with flag burning.  

What would you think if you saw such an act? What should government do?

Our Constitution grants us rights that may not be granted to people in other countries. One is freedom of speech – even speech that may be considered wrong or even hateful. Our country is strong enough to allow different opinions to be expressed, including criticism of the government. We should be glad to be uncensored and unmuzzled .   

We should be proud to honor a flag that stands for the right to freely speak. It is a flag that deserves our respect and protection.

Teens Can Sink Teeth into Halloween-Themed Case

Periodically, I try to let teachers know of online materials that may assist them in social studies classes, particularly those materials that relate to the judiciary. Here is an interesting idea from the U.S. courts website, and it’s timely given that Halloween is just around the corner.

An interactive educational program on the First Amendment and social media designed for high school students uses a real case about the U.S. Supreme Court’s school newspaper censorship decision (Hazelwood v. Kuhlmeier) and applies it to a fictional student vampire club.

The Fangtastics go to court when high school administrators drive a stake through the heart of their online postings. Was it a case of protected critical satire or dangerous cult activity?

In the classroom, instructors may choose an Oxford-style debate or a full-fledged courtroom drama to examine opposing sides of the social media/free speech issue. It’s all in fun, especially as Halloween approaches. For more on social media and the First Amendment – and where vampires stand on the issues – take a look at these resources.

Additional reality-based courtroom simulations on a variety of topics of interest to high school students are also available.

U.S. Supreme Court declines to hear Ohio case

Earlier this week, the U.S. Supreme Court denied a petition to hear an Ohio case about police searching data stored in a cell phone. While the Supreme Court of Ohio is the court of last resort for state law, sometimes our court’s decisions are appealed to the U.S. Supreme Court, especially when they concern federal constitutional rights.

It’s not uncommon for the U.S. Supreme Court to decline to hear a case. In fact, the U.S. Supreme Court receives about 10,000 petitions for a writ of certiorari each year. The Court grants and hears oral argument in about 75 to 80 cases. Those are difficult numbers to overcome to be sure.

As a comparison, our state Supreme Court receives about 2,000 requests each year to review decisions of Ohio’s appeals courts. Out of all those requests, we typically agree to hear arguments and decide about 150 cases per year. After reading these statistics, you can see why we encourage lawyers to make a compelling case to us as to why we should hear their case.

Three Women Soon to Serve on U.S. Supreme Court

The news that Solicitor General Elena Kagan was confirmed today as the fourth woman justice to serve on the United States Supreme Court is a milestone. Back in 1981, President Reagan appointed Sandra Day O’Connor as the first, and the lone female justice. Now, Ruth Bader Ginsburg, Sonia Sotomayor, and Kagan together will make up a third of the Supreme Court this fall.

Times have changed since women generally were steered into becoming teachers, secretaries, or nurses if they wished to work outside their homes. Yet even then some women did study law, becoming attorneys and judges. It happened here in Ohio.

A short history lesson about women Justices on the Ohio Supreme Court since 1803.

Florence E. Allen was the first woman on the Supreme Court of Ohio and served from 1923 to 1934. She was named a “Great Ohioan” in January by the Capitol Square Review and Advisory Board and the Capitol Square Foundation because of her many “firsts”: the first woman elected to a U.S. court of last resort, the first woman elected to a judicial office in Ohio, the first woman assistant county prosecutor in the United States, and the first woman appointed to a federal appeals court judgeship.

After Justice Allen left the Court in 1934, nearly 50 years passed before another woman, Blanche Krupansky became a justice, serving from 1981 to 1983. A short six years later, on Jan. 2, 1989, Alice Robie Resnick became the third woman to serve on the Ohio Supreme Court.

Four more women have taken their seats since then. Justice Deborah L. Cook (1995), Justice Evelyn Lundberg Stratton (1996), and Justice Maureen O’Connor (2002) joined Justice Resnick to create the first of two female majorities on the Court. I became the seventh woman and 150th Justice when I took office in 2004 after serving on the other three court levels.

To date, the seven women Justices of the 152 Justices of the Supreme Court of Ohio still represent only 5 percent, a small minority of those who have served on the high court in Ohio’s 207-year history. But overall, our record still beats that of the U.S. Supreme Court.

A Cool Website for Fun and Learning

At this point in the summer it’s fairly common for kids to admit to their parents that they’re bored. Well, with school still a month away how about a little learning and a little fun mixed together?

An online, interactive Web site (http://www.icivics.org/) that teaches middle school students about civics includes a wealth of information for teachers and students about the three branches of government. While teachers will enjoy the lesson plans, I’m betting the students will be more interested in the online games by casting the deciding vote in a case as a U.S. Supreme Court justice, acting as president, or crafting laws as a member of Congress.

Former U.S. Supreme Court Justice Sandra Day O’Connor started the national initiative, and I’m pleased to serve as Ohio’s spokesperson and adviser.