Ohio v. Johnson - Oral Argument

ORAL ARGUMENT OF JOHN E. SHOOP, ESQ. ON BEHALF OF THE PETITIONER

Chief Justice Burger: We'll hear arguments next in Ohio v. Johnson.

Mr. Shoop, you may proceed whenever you're ready.

Mr. Shoop: Mr. Chief Justice and may it please the Court, on January 25, 1979, one Thomas Hill was shot to death at his apartment in the City of Mentor on the Lake, Lake County, State of Ohio.

The defendant in this case was arrested within 12 hours, and a preliminary hearing was held within five days in Mentor Municipal Court.

But the defendant/respondent, was released because the city prosecutor only charged the defendant with murder, and at the preliminary hearing stage, failed to introduce a certified copy of Thomas Hill's death certificate.

As a result, the charge of murder was dismissed, and Thomas Hill was released, and his bond released also.

Subsequently, on February 13, 1979, the Lake County Grand Jury found probable cause existed to believe that the defendant, respondent in this case, had violated four separate criminal statutes and returned one indictment charging this defendant/respondent with one count each of murder, involuntary manslaughter, aggravated robbery, and grand theft.

The defendant/respondent had already filed the jurisdiction before the Grand Jury indictment had returned.

And 20 months later he was apprehended in the State of Tennessee and returned to the State of Ohio.

On October 9, 1980, the defendant/respondent appeared before the Lake County Common Pleas Court for the purposes of arraignment on the aforementioned indictment.

At that point, he proffered pleas of guilty to involuntary manslaughter and grand theft, and not guilty pleas to murder and aggravated robbery.

The State objected.

Bond was set, and the case assigned to a different trial court, which had then to decide whether to accept the proffered pleas of guilty which the first court reserved ruling upon.

On November 26, 1980, following written arguments, without any testimony or evidence even proffered, the trial court was persuaded by the defendant/respondent to exercise its discretion and accepted the guilty pleas on involuntary manslaughter and grand theft.

At the... going back for a moment--

Unidentified Justice: Mr. Shoop, is that a common practice in Ohio for the judge to refuse the prosecution's demand to go on to trial?

The prosecution was asking to go to trial on all the issues?

Mr. Shoop: --Correct.

Unidentified Justice: Is this a common thing, this event that occurred here?

Mr. Shoop: The event is not directed at whether or not it's common reject the prosecutor's plea.

Most of the courts in Ohio accept recommendations from the prosecuting attorney and so forth on various events.

As far as written guilty pleas or pleas at the arraignment, this was a unique situation evidenced by the trial court.

The initial... the arraigning judge's initial comments when the guilty pleas were proffered, and he said,

"This is unusual; we will have to think about this."

"Does everyone know what is happening?"

"Do you recognize the consequences of this?"

And at that point, the trial attorney responded,

"Yes."

"This may anticipate some... double jeopardy provisions may be implicated here."

Unidentified Justice: Who?

The prosecutor or defense counsel?

Mr. Shoop: Both.

The defense counsel evidenced that immediately.

Unidentified Justice: Did they specifically mention double jeopardy?

Mr. Shoop: Yes.

Unidentified Justice: And I take it, under Ohio practice, grand theft is a lesser included offense of aggravated robbery--

Mr. Shoop: Not in every instance.

Unidentified Justice: --Or at least is a lesser offense.

Mr. Shoop: It is a lesser offense.

Unidentified Justice: All right.

Mr. Shoop: On November 26, 1980, following the written arguments, without any testimony even offered or proffered, the trial court was persuaded to accept the guilty pleas, as I said.

The court sentenced the defendant/respondent to consecutive sentences, three to ten years on involuntary manslaughter.

That is... in the State of Ohio we have indeterminate sentences, so it is a minimum of three to ten years, and of course the minimum can be reduced by the Ohio Adult Parole Authority.

And the second sentence was two to five years on grand theft, to be served consecutively.

Unidentified Justice: It's possible that he'd serve only five years altogether, isn't it?

Mr. Shoop: It is possible that he could serve only five years, and likely that he would serve even less because of the Ohio Adult Parole Authority's interpretations and understanding and control of release of those that are incarcerated under indeterminate sentencing.

Following these pleas the defendant/respondent moved to dismiss the murder and aggravated robbery counts on the grounds of double jeopardy, arguing multiple prosecution and collateral estoppel.

On March 31, 1981 the trial courts, after briefs and arguments, again without any evidence or testimony even proffered, granted the defendant's motion to dismiss on the double jeopardy grounds.

Thereupon, the State appealed to the trial court's dismissal of the murder and aggravated robbery.

Unidentified Justice: Mr. Shoop, you mentioned that the motion was granted without any testimony.

Would one ordinarily expect testimony in connection with a motion to dismiss on double jeopardy grounds?

Mr. Shoop: Not necessarily, Your Honor, Justice Rehnquist.

What I'm looking for is... or trying to establish in the fact pattern is that we have not ultimately had one full litigated trial.

I'm attempting to establish that through the fact pattern also, that nothing has been testified to.

The State appealed this dismissal to the Court of Appeals and again, based on double jeopardy provisions and understandings of the double jeopardy provisions of the Fifth Amendment of the Constitution of the United States, the appeal was affirmed, the trial court's dismissal on those grounds; thereupon, we appealed to the State Supreme Court, which on August 31, 1983 affirmed the Court of Appeals' decision upholding the trial court's dismissal, again all based on federal double jeopardy understandings and provisions.

Unidentified Justice: Mr. Shoop, the Supreme Court opinion never says clearly whether involuntary manslaughter is a lesser included offense of murder.

In fact, it seems to say contradictory things; in one place, that the two offenses are mutually exclusive.

And then it says that the Blockburger test for the same offense is met.

What do you think the Supreme Court meant in its opinion?

What is it holding?

I couldn't understand.

Mr. Shoop: I agree with Justice O'Connor.

I have the same apprehensions through every decision of each court and judge, except for the dissenting judge, Judge Locar in the Ohio Supreme Court,

"They have misunderstood and misapplied all the Blockburger double jeopardy, North Carolina v. Pearce applications of double jeopardy in this situation."

Unidentified Justice: Well, do you know which the court was holding?

Mr. Shoop: I can only understand from all of the court's holdings in Ohio that there is no decision that we can find which specifically states that murder or involuntary manslaughter is a lesser included offense of the crime of murder.

And in the respondent's brief he cites State v. Willis for supporting that proposition, and upon perusing State v. Willis you'll find out that that is... or have found out... that that is a sexual assault case and goes to the charging instrument, has nothing to do with the crimes of murder or involuntary manslaughter.

Unidentified Justice: Are the two offenses mutually exclusive?

Mr. Shoop: In my argument I say yes, they are.

And the difference is that, as the courts below have tried to interpret the mental states requisite in order to include these in the Blockburger test or under Ohio Revised Code 2941.25, which is our multiple counts statute, they have attempted to say that the mental state requisite in murder, which under the laws of the State of Ohio is purposely, that mental state is fulfilled with any lesser mental state which may be encompassed in the involuntary manslaughter charge.

And I vehemently disagree with that proposition.

Unidentified Justice: Mr. Shoop, before Justice O'Connor's question, you made the statement that the Ohio courts have reached their conclusion on federal double jeopardy grounds.

Do you include both combinations?

On the one hand, murder and manslaughter, I think I can go along with you.

What about aggravated robbery and grand theft?

Do you think plausible argument can be made that their decision there was on adequate and independent State ground?

Mr. Shoop: I would have to state that armed robbery... excuse me... aggravated robbery and grand theft, that because of peculiarity in the charging verbiage that was used, aggravated robbery can be charged either as threatening the force or, in the second section, having a concealed weapon or weapon upon their person, whereas theft then would only encompass the theft.

I would say that that, because in this instance of the charge and the way it was framed, that in this instance I would have to agree that probably the theft and the aggravated robbery have been charged as lesser included offenses.

Unidentified Justice: This takes me, of course, to what I regard as a very strange rule, this syllabus rule you have in the State of Ohio, and I'm not sure it's in effect anywhere else.

But as I read the syllabus on that side of the four issues, it sounds to me like it's all state law.

Mr. Shoop: I don't believe that it's all state law, because they apply all of the Blockburger tests in their application and understanding.

Whether they're using 2941.25 or they're using just the double jeopardy standards, everything that points and applies to this situation and their understanding and their interpretations of even the state statutes is all done in light of federal double jeopardy standards, case law, and decisions.

I did not quite finish with Justice O'Connor's question, but I believe that the separation of the murder and the involuntary manslaughter can be shown under Blockburger and the mental state requisite in the murder statute is purposeful, and the mental state in the involuntary manslaughter may be totally absent of any mental state requisite to causing the death of an individual.

In this case the requisite mental state--

Unidentified Justice: When the trial judge indicated he was going to accept these pleas, did the State ever propose dismissing those charges and going ahead on murder and aggravated robbery?

Mr. Shoop: --No, the State did not.

We never proposed dismissing those charges because case law in the State of Ohio up to this point had not said anything that gave any indication that involuntary manslaughter in this specific case could be a lesser included offense of the crime of murder in this specific case.

We had no indication until we got to Johnson, then, that the court was going to make any kind of ruling with this regard.

Unidentified Justice: May I ask, though, in Johnson itself, did the Ohio Supreme Court uphold that involuntary manslaughter is a lesser included offense of murder?

Mr. Shoop: I do not believe that they stated it is a lesser included offense.

I believe, as a specific term of art, lesser included offense.

It is a lesser offense.

It may be an allied offense of similar import, according to our statute--

Unidentified Justice: Is there any difference between the two offenses as a matter of Ohio law, other than the mental state of the defendant?

Mr. Shoop: --Yes.

And that is what I was trying to explain.

Unidentified Justice: What is there, other than the mental state of the defendant, that is different between the two offenses?

Mr. Shoop: We have a lower offense which has a separate, distinct element necessary in its proof, and a higher offense which also has a separate and distinct element.

Unidentified Justice: And what is that element, apart from the mental state of the defendant?

Mr. Shoop: It is only mental in... that is part of the misinterpretation of the Ohio courts.

It is only mental the murder case.

There may be no mental state at all, other than some mental state to commit the crime itself.

Unidentified Justice: In other words, in the murder case you have to prove purpose.

Mr. Shoop: Purpose to kill.

Unidentified Justice: Purpose to kill.

All right.

That's an element of murder.

What element of involuntary manslaughter is there that is not an element of murder?

Mr. Shoop: All right.

That is the element of the theft offense or some misdemeanor or some--

Unidentified Justice: No, no.

I'm asking only about the involuntary manslaughter and the murder.

My question is, what element of the offense of involuntary manslaughter is not also an element of the offense of murder?

Mr. Shoop: --The act of committing some misdemeanor.

That is an element of the involuntary manslaughter.

Any misdemeanor commissioned which can proximately be related to the cause of death of somebody else is the only element.

It is the distinguishing element.

Unidentified Justice: Well, Mr. Shoop, on this question, getting back to my brother Blackmun's question to you about that silly rule of yours on syllabus, do I take it that they (1)... those two paragraphs, they are the holdings, are they, of your Supreme Court?

Syllabi, at page A1?

Mr. Shoop: Under syllabus law, that is initially--

Unidentified Justice: What is syllabus law?

Are we foreclosed in trying to determine what your Supreme Court held from looking at the opinion?

Are we limited by the syllabus rule to what's stated in those two paragraphs?

Mr. Shoop: --Initially, the limitation would be there if the syllabus can be construed to be clear and unambiguous on its face.

Unidentified Justice: All right.

Now, right there the first one is

"Aggravated robbery is an allied offense of similar import to theft."

Now, that's... you, I think, said earlier that indicates that theft is an element of--

Mr. Shoop: Yes.

For double jeopardy purposes, I--

Unidentified Justice: --How does that differ from what paragraph 2 says?

"The offenses of murder and involuntary manslaughter share the common element of causing the death of another and are distinguishable only by the offender's mental state."

Now, is that ambiguous?

Mr. Shoop: --Yes.

To me.

And I believe it has been to every court that has attempted to understand that reasoning.

Unidentified Justice: Well, I have some... well, it may be wrong, but that's your law apparently.

That's your state law.

Mr. Shoop: I think I understand our problem.

In our hearts, we know there has only been one death, and we say this is incongruous, that we ought to be allowed to do this kind... or the State should be allowed to do this.

But the State specifically set up guidelines to allow for multiple counts, multiple convictions, even under the federal guidelines in one proceeding.

And we have to keep that in mind.

Under the federal law, we are still under one proceeding.

The courts below have adopted this duality of purpose or subject to future events, causing this case to now be here before this Court as if it is a legitimate double jeopardy application.

We have not reached the double jeopardy threshold.

The argument presumes an intended result, we certainly hope.

But if we reach that upon remand and the case is remanded, then we can address the questions, and there are safeguards within the state statutes to protect the rights so that an individual cannot be charged.

The intent... it is very important, I believe, to understand that the mental state in murder relates to the mental state, the culpability of taking a person's life.

The mental state requisite, if any, that the courts tried to attach in the misdemeanor or in the involuntary manslaughter has nothing to do with taking a person's life.

The mental states are entirely different.

The element of theft or discharging a firearm within a city limits, discharging a firearm, requires no requisite mental intent.

Unidentified Justice: You said they are entirely different.

They are different, I take it you mean, in the sense that in one case there must be the mens rea, the intent, and in the other case that must be absent.

Mr. Shoop: Correct.

In the higher crime, the mens rea goes to the intention of killing someone.

Unidentified Justice: But then if he's guilty of involuntary manslaughter, he cannot be guilty of murder.

Mr. Shoop: I disagree.

Unidentified Justice: Well, how can he have both no mental state and the wrong mental state?

I don't understand that.

Mr. Shoop: Ah, now we're beginning to understand.

[Laughter]

They could be mutually--

Unidentified Justice: On that point, you said they were mutually exclusive, did you not?

Mr. Shoop: --That is... that is my argument.

Unidentified Justice: But if that's so, if you find that person--

Mr. Shoop: No, I didn't say the--

Unidentified Justice: --Well, you said that.

Now, if the person then is found guilty or pleads guilty to involuntary manslaughter, that would be the equivalent of an acquittal on murder, and you'd be collaterally estopped for going from there.

Mr. Shoop: --No, I did not say... I hope I did not.

Unidentified Justice: I thought you did in response to my question, that you believed that it was mutually exclusive.

Mr. Shoop: Then I perhaps did not understand your question as to the mutual exclusive proposition.

Unidentified Justice: You don't think they're mutually exclusive.

Mr. Shoop: No.

I believe they are entirely separate offenses.

And if allowed to be tried, we may be able to establish that they are not even lesser included offenses, and be allowed to convict and charge on both.

Unidentified Justice: But then, if I understand you--

--your question of lesser included offense, as between first degree murder and manslaughter, you never had your chance--

Mr. Shoop: We've never had that opportunity to present that one full litigated issue or trial.

Unidentified Justice: --So whatever the law may be with respect to matters arising under the Green case, Green v. the United States, are not at all present here.

Mr. Shoop: We have not had one full hearing yet.

Unidentified Justice: Mr. Shoop, let me go back, if I may.

The Ohio Supreme Court said that involuntary manslaughter involves a lesser mental state, and I think you've agreed that they're different, as it is

"killing which proximately results from the defendant's committing or attempting to commit another offense."

"It is manifestly obvious that these two states."

--and understand, that's two states of mind...

"are mutually exclusive and that in any given killing, the offender may be possessed of only one."

As I understand you, you disagree with that?

Mr. Shoop: Absolutely.

Unidentified Justice: So we should follow you, rather than the Ohio Supreme Court.

Mr. Shoop: I would think that I would ask the Court to accept--

Unidentified Justice: And to disagree with what the Ohio Supreme Court said about Ohio law?

Mr. Shoop: --I understand.

Because they are interpreting Ohio law and that statute in light of federal double jeopardy standards, and I think you can make a directive back to them that the federal law would understand that these are separate elements for the purposes--

Unidentified Justice: Now, whether you are correct or not, or whether the Ohio court is correct, what does it have to do with this case when there was a guilty plea taken on the two very minor charges, and you never got any kind of a homicide case before either a jury or the court?

Mr. Shoop: --That is part of--

Unidentified Justice: So this is really academic discussion.

Mr. Shoop: --Correct.

And that is part of the problem with this entire case, is that most of it has been an academic carrot that has been tossed out, and everyone seems to be leaning over backwards to try to reach for that carrot, and they have missed the double jeopardy constitutional protections that have been provided, that the State has provided and will continue to provide throughout this.

I've noticed that my time is up for the moment.

Unidentified Justice: Let me ask you, Mr. Shoop, don't you think the Ohio court would have reached exactly the same result without any regard to federal standards under your double... under your multiple count statute?

It specifically says that the General Assembly has further effectuated the principles contained in the double jeopardy clause by means of their multiple count statute, and then it quotes the multiple count statute and goes on.

It seems to me like they would have reached exactly the same result under that... just your local statute.

Mr. Shoop: They could, but they didn't.

Unidentified Justice: Well, I think they did.

Mr. Shoop: They did this through application of Blockburger.

And I believe that in reviewing the elements there, you can see the different elements which takes this out of that, I argue, double jeopardy provision.

Unidentified Justice: You think that they were necessarily relying on federal principles.

Mr. Shoop: Correct.

Thank you.

Chief Justice Burger: Mr. Purola.

ORAL ARGUMENT OF ALBERT L. PUROLA, ESQ. ON BEHALF OF THE RESPONDENT

Mr. Purola: Mr. Chief Justice and may it please the Court, obviously some portion of the Ohio syllabus rule is important in this case, and obviously, even though double jeopardy seems to be all around the case, the judgment below rests on an independent adequate state ground.

The questions of the Court so far with regard to petitioner's argument make it clear that that's understood as a problem in the first place.

The syllabus rule is, as alluded to during argument that the Ohio Supreme Court's law of the case, the only part of the judgment that commands... that necessarily commands a majority of the court is contained in the syllabus which is the short sentence or two sentences.

It's a point of law that governs the case.

Unidentified Justice: Do you suggest that's binding on this Court?

Mr. Purola: I suggest that it is, Mr. Chief Justice.

Unidentified Justice: Well then, if that's correct, then a state court could decide federal questions, cases like this on federal grounds, and hide behind a syllabus rule which was silent on the grounds.

And this Court could never review.

Mr. Purola: Only, sir, if--

Unidentified Justice: I can assure that, speaking for one member of the Court, the Ohio syllabus rule would have no weight with me whatever when it would permit a court to hide behind... or to decide a federal question, and insulate it from review here by this specious kind of charade.

Mr. Purola: --The only way they could do that, sir, would be if the syllabus was a mask, and clearly in opposite to what the controlling language in the opinion was.

I don't think that would happen all the time, but I would point out that in Zacchini v. Scripps-Howard, this Court recognized in an opinion by Justice White that you will look to the syllabus to define the law of the case that it is controlling.

I have no doubt whatever, however, that if the Ohio Supreme Court have decided a question of federal Constitutional law improperly or excessively, they could not hide behind that local rule to prevent review here.

Unidentified Justice: If you know, why does the Ohio court file an opinion?

If you know.

Mr. Purola: The Ohio jurisprudence, Your Honor, is that the opinion is to explicate the facts of the case, and the syllabus that goes with the opinion is the rule which is to be read in light of the facts of the case.

Is the opinion of any precedential value?

I don't know, sir.

It's to expound on the facts that the particular case that gave the genesis to the syllabus was about.

But, in any event--

Unidentified Justice: Mr. Purola, as to the second paragraph of the syllabus in this case, dealing with murder and manslaughter, it just says basically that the prohibition v. double jeopardy requires the result.

And it isn't clear from the syllabus alone whether it's the federal prohibition of some state requirement.

Now, doesn't Zacchini v. Scripps-Howard indicate that under those circumstances, we go ahead and read the opinion to see if the reliance was on federal or state law?

Mr. Purola: --Precisely, Justice O'Connor.

That's exactly what happened in Zacchini.

The syllabus was just as unclear.

Unidentified Justice: Right.

So we go ahead and look then at what the opinion said, at least as to that murder manslaughter question, and when we do that, doesn't it show us that the court was relying on federal law as to the murder manslaughter issue?

Mr. Purola: I cannot argue that federal considerations are not present in the opinion.

I do argue that it is not clear to me that the rule of Michigan v. Long was ever written to contemplate that kind of a situation, where one syllabus is clearly on state law and the other may be on federal law.

I think if it were just the second syllabus--

Unidentified Justice: Well, you have two issues.

You have the theft aggravated robbery that you can treat separately, and then you have the murder manslaughter issue, don't you?

Mr. Purola: --I think, however, that the Long decision requires the Court to look at the opinion, to determine if within the four corners of it there is an explication of some independent state law ground.

And I think that even though there are references to double jeopardy law in the syllabus, the state law analysis, partially that referred to by Justice Stevens on these two things being mutually exclusive, isn't all that clearly a double jeopardy analysis.

But I cannot rest entirely by ignoring the Long presumption.

Unidentified Justice: What about the multiple state statute that the court referred to as implementing double jeopardy principles?

Do you think the court rested on that?

Mr. Purola: I think in syllabus 1--

Unidentified Justice: Well, no; in the opinion.

You invite us to look at the opinion in your brief.

Mr. Purola: --With regard to syllabus 2.

Unidentified Justice: Exactly.

And when you do, what independent state ground do you identify?

The multiple count statute?

Mr. Purola: The multiple count statute is what I identified, yes.

And clear... it's not clear either, I concede.

But with regard to the independent state ground, another question may appear as to whether or not, if the judgment below rests on one clearly stated syllabus and one subject to the Michigan v. Long presumption, whether or not the jurisdiction is here or the desirability of issuing a decision that may not be necessarily viewed as binding in Ohio.

And I don't say in any sense of they're ignoring you, but I consider the possibility that Ohio, on remand, could decide this case solely on state grounds to be a potential risk.

Unidentified Justice: Under the multiple count statute.

Mr. Purola: Yes, Your Honor.

I think that--

Unidentified Justice: But then they would be taking exclusive responsibility, were it not asking a sharing of a federal ground.

Mr. Purola: --Yes.

That would be clearly state law only at the point.

In the event, however, that the judgment below is found to be based at least in part on federal law, it's my position that the double jeopardy clause prohibits further prosecution in this case.

The first and foremost point that must be considered over and over again as far as the respondent is concerned is that he has been convicted by a valid, unappealed judgment of killing Thomas Hill and stealing his property.

That conviction is final, and has been for many... long period of time.

Unidentified Justice: Say that again.

He was convicted of?

Mr. Purola: I used the word "killing", sir.

Unidentified Justice: Did he plead guilty to--

Mr. Purola: He pleaded guilty to involuntary manslaughter.

And that is what he is in jail for today.

In my view, that implicates the second prong of the North Carolina v. Pearce test that is the analysis of the double jeopardy protection where there has been a prior conviction.

There has been a prior conviction in this case, and it is an extant conviction for the same facts.

I think that the general principles of not quite 100 years now, but In Re Nielsen in 1889 point out that where a person has been convicted of a crime that may have multiple parts to it, he may not be subsequently convicted of another one of those parts.

Unidentified Justice: --Even though he wasn't tried and convicted?

Mr. Purola: Absolutely, sir.

I do not... that's my position.

Unidentified Justice: Of course, Brown v. Ohio involved a trial of a lesser offense.

Mr. Purola: In Brown I believe that--

Unidentified Justice: This is a good way, if you could get away with it, isn't it?

How did you ever persuade the trial judge to accept these pleas over the opposition of the State?

Mr. Purola: --I am not sure I can say why the trial judge did it, but my position was at that time that at the general issue, at the arraignment, the Rule 11 proceeding, he had the absolute right to enter the statutorily authorized pleas which are, I think, identical to the federal pleas... guilty, not guilty... and only no contest requires the consent of the court, and he was able, at that time, to not have any prosecutorial participation in his plea when he entered--

Unidentified Justice: And why does that follow... why is the State then prevented from going ahead with a murder charge?

Mr. Purola: --Well, because there is an extant conviction.

He would be then being successively prosecuted for the offense of this homicide and this theft, in my judgment a lesser included offense.

And I think Brown precludes that.

Unidentified Justice: But not with the State's consent.

Mr. Purola: Indeed, the State's consent at this stage wasn't required.

We certainly don't have the State's consent and never did have it.

There is no question about their--

Unidentified Justice: Is there any appeal?

Are you finished with your answer?

Mr. Purola: --Yes.

Unidentified Justice: Could the State have taken an appeal from this rather extraordinary action of the trial judge on the question of the trial judge's authority to take the plea to a minor offense and deny the State the right to go to trial on the murder charge?

Mr. Purola: I know of no Ohio practice, Your Honor, that would allow an appeal at that point on that issue.

And I make the point in my brief that I think if there is error in this problem... and the Solicitor General, of course, suggested as amicus... it is up to the Ohio Supreme Court to have a rule that allows for not accepting those kinds of pleas where the government objects.

That isn't the rule in Ohio, and I don't think an appeal is possible.

Unidentified Justice: May I ask you a question about the tactics involved in this case?

Was there any reason for pleading guilty with a manslaughter charge, other than to obtain a bar to the murder charge?

Mr. Purola: That's the reason, sir.

Unidentified Justice: That's the only reason, I gather.

Mr. Purola: Yes, sir.

Unidentified Justice: Otherwise, I assume you would have asked for a trial--

--Right.

That was the reason.

Well, Mr. Purola, to the extent that the double jeopardy clause was designed to prevent a defendant from going through the anxiety of twice being forced to go to trial, it seems to me that its purpose isn't served by allowing the defendant himself to force entry of a plea and avoid not only two bites of the apple by the State, but even the first bite.

Mr. Purola: Justice O'Connor, I don't agree, respectfully, with what I think is the underlying premise to your question.

I don't think that the double jeopardy clause is at all implicated until the State's right to a trial has grown or has appeared.

And at the arraignment, they do not have an independent cognizable right to a trial.

Unidentified Justice: Well, the point is, the State has never been given an opportunity for even a single trial, and the defendant has been in the position of himself forcing this situation and asking for it.

So it's a little hard to see how the policies behind the double jeopardy clause are served by applying it in these circumstances.

Mr. Purola: Well, I think that the double jeopardy clause might reach its highest point if this further trial is protected or is precluded, because it is precisely this present conviction, brought upon by this accepted final plea, that makes this case just like all others in which a prior judgment has precluded the trial.

And I think that it is not our position to suggest at all that the State has an independent right to trial.

Unidentified Justice: May I ask... Justice O'Connor suggested that the judge was forced to accept the plea.

As a matter of Ohio law, did he have the alternative to decline to accept the plea?

Mr. Purola: Without question, Justice Stevens.

One of my arguments is that it is purely a question of state law discretion.

He exercised discretion in favor of the plea.

He did not have to.

And that if there is error in that, that's an Ohio problem which should be corrected there, but it is not a matter of federal constitutional law.

Unidentified Justice: Mr. Purola, you say that the ultimate acceptance of the plea and judgment entered on it makes it just like our other cases where trial and conviction or conviction on a lesser offense barred conviction on a greater offense.

But in cases like Brown v. Ohio, there were two separate proceedings in two separate Ohio counties, weren't there?

Mr. Purola: Yes, there were.

Unidentified Justice: Don't you think that's... it's factually different.

Don't you think it might be legally different; that here there was all one indictment before one judge?

Mr. Purola: I don't think it's factually or legally different.

In fact, there was obviously one sovereign in Brown, whether it was two counties or not.

In fact, they were guilty pleas.

I don't believe there was any trial in Brown.

He pleaded guilty in Willoughby, which is my city, and then next door in Cleveland.

And I think that the point of Brown and the rationale and the policies of Brown are the same as this case.

I don't see any difference.

Unidentified Justice: Well, one difference, I suppose, is that the State did have an opportunity to proceed to contest a judgement in at least one of its count.

Mr. Purola: That's correct, sir, but that is only important if somebody wants to equate the State's right to proceed with the defendant's right to be free from former jeopardy.

And I do not equate those.

I think that the State's right to proceed is an independent right coming from the Executive Branch, and it has got nothing to do with the defendant's protection v. governmental oppression, which I consider this a moderate form of, not a great form.

With regard to the normal protections attendant with a double jeopardy clause, clearly two things must be satisfied: one is, they must be the same offense, and with regard to these there has been considerable discussion today.

I don't think there is any serious question that aggravated robbery and theft are the same offense for purposes of the Fifth Amendment.

And, consequently--

Unidentified Justice: Are they the same offense as murder?

Mr. Purola: --Sorry, sir?

Unidentified Justice: The same offense as murder?

Mr. Purola: No.

Aggravated robbery and theft are the same offense.

Unidentified Justice: What about my question?

Are they the same as murder?

Mr. Purola: No, sir.

Unidentified Justice: He was charged with murder here, wasn't he?

Mr. Purola: Charged with murder and involuntary manslaughter.

I maintain that the manslaughter and murder are the same offense, and the robbery and theft are the same offense in Fifth Amendment terms.

So a conviction on any one of those precludes a successive prosecution on the other one.

Unidentified Justice: I inquired of your friend... and perhaps you wish to address it... is it common or usual or frequent practice of judges to do what the judge did here, accept a plea on a relatively minor charge and foreclose the right of the State to go to trial on the major charge?

Mr. Purola: In my experience, Your Honor, I have never seen it.

I could never say it's common.

I consider it uncommon.

I have never seen it happen, except in this case.

Unidentified Justice: Not that you won't tender a plea again?

Mr. Purola: I suppose it will depend on how I do here.

[Laughter]

The same offense question is obviously a constitutional prerequisite to any serious application, and I don't think it's arguable with regard to theft and robbery.

There have been questions this morning or this afternoon, regarding whether or not the manslaughter and murder are the same offense, or at least are they lesser included offenses.

And clearly, I don't think that you can doubt that they are the same offense for double jeopardy purposes, though I'm not so sure that I would want to venture a guess on whether or not they're a lesser included offense either, except for State v. Scott, in which the Ohio Supreme Court makes direct reference to the fact that a trial on murder will always involve a jury instruction on involuntary manslaughter in the case where the evidence would warrant it.

So I believe that it is a lesser included offense, but without question--

Unidentified Justice: If the case had gone to trial, could he have been convicted of both offenses?

If you have both of those instructions, does the trial judge customarily say you can bring in a guilty verdict of both?

Mr. Purola: --Yes.

Unidentified Justice: He does?

Mr. Purola: In this case if it had gone to trial on all four, he could have--

Unidentified Justice: No.

I mean just the involuntary manslaughter and murder.

Mr. Purola: --Right.

He could have been convicted of both of those at the same trial.

Unidentified Justice: And get consecutive sentences for the two?

Mr. Purola: I do not believe he could get consecutive sentences.

That would obviously... in fact, I believe that under the statute, 2941.25, only one conviction could survive.

The trial judge would have to dismiss one of the cases at that point.

Unidentified Justice: You mean the jury could bring in a verdict on both, but he couldn't enter judgment on it.

Mr. Purola: That's right.

The statutory prohibition v. more than one conviction... and I think in my petition, or I mean my brief in opposition to the petition for certiorari, I suggested that what Johnson really did here was decide himself which two would be dismissed, instead of waiting until there was a multiple conviction and letting the judge decide, because it wouldn't take much imagination to determine which the judge would dismiss at that point, and it wouldn't have been the manslaughter.

Unidentified Justice: It seems to me what you just said is inconsistent with what you told me a little while ago.

You're saying Johnson decided this?

I thought you told me the judge had the power to decide whether or not to accept the plea.

Mr. Purola: Oh, yes.

I meant that in a little different sense, Your Honor.

The judge had clear discretion, could have refused it.

When I meant Johnson decided, I meant he attempted to do it and in this case was successful.

Unidentified Justice: Well, he would always ask for the lesser offense.

He wouldn't have ever asked for murder if he had a choice.

Mr. Purola: Oh, no.

He would ask for the lesser.

Unidentified Justice: Suppose they had gone to trial.

Suppose the judge hadn't engaged in this extraordinary, unprecedented action that you concede was just that.

Suppose they had gone to trial.

At the end of all the evidence, does the Ohio judge have the power that's common generally to direct a verdict on the murder charge, for example, and leave to the jury the decision only on the other charges?

Mr. Purola: Absolutely, he has that power.

Unidentified Justice: Then the State would have had its day in court, wouldn't it?

Mr. Purola: Would have had its trial on this indictment.

Yes, sir.

Without question.

Unidentified Justice: There's no doubt about the judge's power to direct a verdict on the grounds that the evidence would not support the verdict of murder.

Mr. Purola: Rule 29, almost identical to the federal rule, that kind of case.

The question on whether or not the defendant/respondent and this court has been in jeopardy twice, obviously must begin with the question of whether he's been in jeopardy once.

And I think it is an obvious statement, almost not worthy of repeating, that somebody who was in prison on a valid judgment of conviction must have been in jeopardy.

This Court has recently, as recently as a week ago today, in Justices of Boston Municipal Court v. Lydon, considered the question of what is the termination of jeopardy and how the necessity for termination must be dealt with in order for a proper claim of double jeopardy to be considered.

I argue in this case that jeopardy attached and terminated within the period of time it took to accept the plea and to enter the final judgment.

Unidentified Justice: It's almost instantaneous, I guess.

Mr. Purola: Yes.

Very short period of time, Your Honor.

Unidentified Justice: Well, you've decided the whole case when you say under a final judgment.

It didn't dispose of the entire indictment, though, except... unless you win on your double jeopardy claim.

Mr. Purola: Precisely.

If I don't win, the remainder will be considered.

Unidentified Justice: Then a final judgment, wrapping up the whole case.

Mr. Purola: Well, yes, but that will all depend on how... the outcome of this hearing, obviously.

Unidentified Justice: The State's position is that there is no valid final judgment outstanding now.

Mr. Purola: I don't know if the State argued that.

Unidentified Justice: Part of its position.

Mr. Purola: I'm sorry, sir.

Unidentified Justice: Part of its position.

He's really not in prison is what he's saying.

He is in prison, isn't he?

Mr. Purola: Yes, sir.

Unidentified Justice: So there must be a valid judgment, I would think.

Mr. Purola: Three and a half years he is.

Unidentified Justice: Let me ask you also, is there anything in the record indicating what your advice was to your client when you advised him to plead guilty?

Mr. Purola: There is nothing in the record to that, except the arraigning judge asked us, the defendant and myself, what problems might be being created by this offer of--

Unidentified Justice: Was there any discussion then about whether there might be a trial on the more serious offense?

Mr. Purola: --No.

There was no discussion at that point, and there's nothing further in the record about my advice to him.

Unidentified Justice: If I were the defendant, I would wonder what's going to happen to the other count.

Mr. Purola: Well, I think it was clear.

The defendant understand that a motion to dismiss it on these grounds would be made.

That's all--

Unidentified Justice: You mean at the time of his plea?

Mr. Purola: --Or shortly thereafter, before trial was scheduled.

Unidentified Justice: Well, I know, before it.

But his plea had been accepted and judgment entered before he ever filed a motion.

Mr. Purola: Yes, sir.

Unidentified Justice: You want some credit for foresight, I would think.

Well, fundamentally, the argument on the other side, based on Jeffers, is that there was a waiver of your double jeopardy claim because you elected to make two proceedings out it rather than one.

Mr. Purola: The fundamental difference with Jeffers, however, Jeffers did three things.

He first denied that the two offenses were the same.

He secondly overtly opposed trial together on the offenses, the 846 and 848 section, and (3) he never told the trial judge or the prosecution what might be happening.

Kenneth Johnson does not fit any of those, because again I have to point out that in Jeffers there was an arraignment and a not-guilty plea and two trials scheduled.

When that happens, the prosecutor... U.S. attorney in that case... becomes an integral part of the case.

One of my major points in this Court is that on state law, when the arraignment is the first opportunity one has to plead to the indictment, a plea of guilty will obviate the necessity of the prosecutor's involvement with regard to that and eliminate the necessity of a proceeding on the same offense.

That is different than Jeffers.

Jeffers did clearly deny that the two offenses were the same.

Johnson took precisely the opposite tack.

Jeffers also wanted two separate trials once the issue was joined.

That's not what happened here.

The issue wasn't joined at all on the involuntary manslaughter and the theft, and clearly the court knew what the defendant's motion was going to be after the plea was accepted.

In fact, what this points to is that this somewhat unusual set of proceedings is maybe an aberrant state law arrangement.

It maybe isn't a double jeopardy matter because the double jeopardy clause shouldn't be implicated if this whole problem could have been corrected or could be corrected by a state law ruling or a state law modification, which I think is an excellent reason for this court not to produce a decision on the double jeopardy clause on this fact setting, which is unusual, likely to be unrepeated, at least in most cases, and I think that the state law thing is the way to handle this position.

The government argues in the amicus brief of the United States that they would just suggest to you, if this were a federal case, that the plea be vacated because it's beyond the power of the federal court to accept it.

That isn't the rule in the federal courts either.

But this Court clearly, under its power, could suggest that, if not order it.

But in state law, that's not a matter for this Court to decide.

With regard to why a second trial now, or a trial now will be a second prosecution... and I point out that Pearce uses the word "prosecution", not "trial"... would violate the double jeopardy clause is that this is a guilt-related ending of the first proceeding which is significantly different than other interruptions in proceedings that are not guilt-related.

And that difference has always made a... I mean that distinction has always made a difference to the court.

In this particular case, Johnson's guilt was established on the very first day, at least to the facts that took place on January 25, 1979.

Unidentified Justice: Mr. Purola, may I ask one other question about the situation immediately before the guilty plea was accepted?

As a matter of Ohio practice, could the prosecution have dismissed the involuntary manslaughter charge or could you have prevented that?

Mr. Purola: I could not have prevented it, Justice Stevens.

He could have nolle'd it at his will.

And I guess the timing is important.

The original arraignment on October 9th did not result in the final entry of any plea.

That judge reserved ruling, sent it to the judge that drew the case, and it wasn't finally decided until the following month.

With regard to one issue that may seem to be in this case, the idea of continuing jeopardy, one that this Court has grappled with, if not directly, at least tangentially recently.

It's clear that continuing jeopardy has never been undertaken, at least in the sense of Justice Holmes's dissent, to be an acceptable way of analyzing double jeopardy principles.

This case is much like Reed v. Jones in the sense that no analis could allow the prosecution to go forward on the theory that Mr. Johnson is still in jeopardy, and that's why I think the case decided last Wednesday about Lydon talks about the termination.

But I think that ends the jeopardy, because the justifications for a continuing jeopardy referred to in last week's case all seem to be met in this case, and I don't think this would be the case, if this Court were ever inclined to adopt a continuing jeopardy notion to perhaps give the State the right to stay in the case, I don't think this would be the case to adopt it in, though I certainly don't suggest it should be adopted at all, but ideas of fairness to society, lack of finality, and limited waiver are all, in this case, resolved in favor of the respondent.

It may not be what all would choose, but the fact that Mr. Johnson has been convicted of involuntary manslaughter and been imprisoned for the maximum term allowed by state law, by the trial judge, is fair to society.

He is not escaping this conduct.

He was consequently, or in addition, was sentenced consecutively for the theft which was never challenged.

It is final, another suggestion in Justice White's opinion last week that deals with continuing jeopardy.

This is final.

There isn't any obvious need to not have this over with.

It is over, and there's clearly no waiver of Mr. Johnson's right to end his case.

My time is nearly over.

I would like to end by saying that this unique case is not the vehicle, in my view, to change again the principles of double jeopardy that have started to be changed in recent years.

It seems that this country survived a very long time on very few double jeopardy opinions.

Unidentified Justice: Well, it survived up until 1969 without... or '67... without ever incorporating the double jeopardy provision as v. the states.

Mr. Purola: Precisely.

And some states took an entirely different view of double jeopardy, notably Connecticut, prior to 1969.

But I believe that the principles of cases like ex parte Lang and Perez and Nielsen are sufficient to govern double jeopardy jurisprudence.

And even if this case would warrant a different consideration, the unique facts of this case, coupled with Ohio law's very unusual treatment in this case, is not one where this Court should attempt to engraft or to engraft a different view of the double jeopardy clause.

This case may not be further prosecuted because another proceeding is barred by the Fifth Amendment.

Thank you very much.

Chief Justice Burger: Do you have anything further, Mr. Shoop?

Mr. Shoop: Just a few comments, Mr. Chief Justice.

The Fifth Amendment provisions and protections that have steered this entire case through the courts rely upon prohibitions against unlawful government oppressive practices, protections afforded to the accused.

In Singer, though, the Court... this Court... has stated that the State and the government does have a right to one full trial.

And we ask for that.

There has been no State action by the prosecutor, by the State of Ohio, that is oppressive, that is burdensome, that is placing an extra burden upon this accused.

All that has happened is he has chosen to attempt a ploy that would now put restrictive and very binding confines on the application of the double jeopardy provisions to the State in these matters.

2941.25 of the Ohio Revised Code is a statutory embodiment of the federal law in this area, and it's intended to extend, by statute, the protections of the Fifth Amendment to the defendant and, in doing so, it extends also the weighing and balancing tests that must be performed and the intended protections must be weighed v. the public interest, both by the double jeopardy provisions and by 2941.25.

The State did exactly what it was required to do.

The defendant has artificially attempted to create a double jeopardy problem where one does not exist.

We ask you to reverse and to remand and to strongly indicate to the courts of Ohio how to properly understand and interpret similar acts and lesser offenses under the Blockburger test, according to the double jeopardy standards that they have attempted to apply.

Thank you.

ORAL ARGUMENT OF JOHN E. SHOOP, ESQ. ON BEHALF OF THE PETITIONER -- REBUTTAL

Unidentified Justice: You indicate that the State has done everything it could have done.

I suppose it could have dismissed the two charges to which... with respect to which the pleas were proffered.

And then you would have your murder trial.

Mr. Shoop: Yes.

That is an alternative.

It is not one that we control.

We could have suggested to the court that we would at this point like to nolle or dismiss the case, but the court was free to not accept our refusal and proceed as it did.

It was not indicated at the time that it was even going to be a problem.

Unidentified Justice: If you would have dismissed, then went to trial on murder, and you lost, you would have been through.

Mr. Shoop: On the murder.

There are different theories for the applications of the two crimes.

Unidentified Justice: You would have been through entirely.

Mr. Shoop: Under double jeopardy, your provision is.

Unidentified Justice: May I ask just one more question?

Mr. Shoop: Yes.

Unidentified Justice: If you prevail and there's a new trial and you convict this man of murder, get a judgment for murder, would it be your view that the judgment for manslaughter would remain in effect?

Mr. Shoop: Under 2941.25, no, I do not believe that it would.

If the Ohio courts continue to apply that statute and interpret it that these are, once they have learned all of the facts and can distinguish whether or not the elements are the same--

Unidentified Justice: So it's your view, if I understand you, that you can kind of treat the manslaughter conviction as kind of a hedge and keep that in effect in the event you lose the murder trial, but if you win the murder trial, then you'll take the murder rather than the manslaughter.

Mr. Shoop: --Yes.

And--

Unidentified Justice: But you can't have both.

Mr. Shoop: --I do not believe that the courts would allow us to have both at this time.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.