Rethinking Retroactivity in Light of the Supreme Court’s Jury Unanimity Requirement

MICHAEL C. DORF

In light of the U.S. Supreme Court’s decision Monday in Ramos v. Louisiana, in which it held that the federal Constitution forbids states from convicting defendants except by a unanimous jury, Cornell law professor Michael C. Dorf discusses the Court’s jurisprudence on retroactivity. Dorf highlights some costs and benefits of retroactivity and argues that the Court’s refusal to issue advisory opinions limits its ability to resolve retroactivity questions in a way that responds to all the relevant considerations.

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State ex rel. Nelson v. Russo

Citation: 2020-Ohio-1541

Opinion Date: April 22, 2020

Judge: Per Curiam

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the court of appeals dismissing Appellant's petition for a writ of mandamus seeking to compel Cuyahoga County Court of Common Pleas Judge Nancy Margaret Russo to vacate the consecutive prison sentences imposed on Appellant in 1987, holding that Appellant had an adequate remedy at law and was barred from asserting additional claims of sentencing error he could have raised in his previous mandamus action. In 1987, Appellant was convicted of four counts of rape and one count of kidnapping. Appellant was sentenced to prison terms of fifteen to twenty-five years for each of the five counts, to be served consecutively. In 2019, Appellant sought a writ of mandamus to compel Judge Russo to vacate his consecutive sentences. The court of appeals dismissed the writ action, concluding that res judicata barred Appellant's claim and that his prior appeals were an adequate remedy at law to address the alleged defect in his consecutive sentences. The Supreme Court affirmed, holding that Appellant was not entitled to a writ of mandamus in this case.

State ex rel. Roberts v. Marsh

Citation: 2020-Ohio-1540

Opinion Date: April 22, 2020

Judge: Per Curiam

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the court of appeals dismissing Appellant's original action seeking a writ of procedendo and/or mandamus to compel Hamilton County Court of Common Pleas Judge Melba Marsh to issue a corrected sentencing entry, holding that the court of appeals correctly dismissed the petition as moot. Appellant was convicted of murder with a repeat-violent-offender specification. Appellant later asked the trial court to correct his sentence, arguing that he had improperly been sentenced to postrelease control. On remand, Judge Marsh vacated the postrelease-control sentence. Appellant appealed that order. The court of appeals noted that the trial court had not set forth all the information required under Crim.R. 32(C) in a single document and dismissed the appeal for lack of a final, appealable order. Appellant then filed this original action seeking to compel Judge Marsh to issue a corrected sentencing entry that constitutes a final, appealable order. Judge Marsh issued a nunc pro tunc sentencing entry that constituted a final, appealable order. The court of appeals then dismissed the petition as moot. The Supreme Court affirmed, holding that because Judge Marsh performed the act Appellant requested, the court of appeals dismissed the petition as moot.

State v. Jeffries

Citation: 2020-Ohio-1539

Opinion Date: April 22, 2020

Judge: Donnelly

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the court of appeals upholding Defendant's convictions of four counts related to two specific instances of sexual abuse of D.S., holding that the trial court and court of appeals correctly applied Ohio's rape-shield law and determined that evidence of D.S.'s prior nonconsensual sexual assault was inadmissible. On appeal, Defendant asserted that the trial court erred in prohibiting him from introducing evidence during trial that D.S. had previously been sexually assaulted by another person, arguing that the rape-shield law applies only to an accuser's prior consensual sexual activity. The lower court held that Ohio's rape-shield law addresses all sexual activity, not only consensual sexual activity. The court of appeals affirmed. The Supreme Court affirmed, holding (1) the plain meaning of the term "sexual activity" as used in the rape-shield law includes both consensual and nonconsensual sexual activity; and (2) therefore, all sexual activity is barred from admission into evidence by the rape-shield, absent certain exceptions listed in the law.