Ohio Supreme Court says children can’t be re-charged for certain crimes in ruling that

COLUMBUS, Ohio – The Ohio Supreme Court ruled Thursday that if a juvenile court finds no probable cause for a crime against a child, prosecutors can’t try to charge that child again through the adult courts.

The court’s 4-3 decision came in a case involving an August 2017 robbery on West 65th Street in Cleveland involving a 16-year-old boy.

Justice Jennifer Brunner wrote the majority opinion, which reversed lower court rulings, vacated the conviction, and returned the case to the Cuyahoga County Common Pleas Court.

Brunner, a Democrat, is running for chief justice of the Ohio Supreme Court. The dissent was written by Sharon Kennedy, a Republican also running for chief justice. The approach each justice took to arrive at their decisions showed some sharp contrasts.

Brunner’s decision incorporated the history of the juvenile justice system going back to the end of the 19th century to today when she argued that Ohio and other states choose the juvenile justice system as the preferred avenue to address youth crime. Chief Justice Maureen O’Connor, a Republican, and Democratic Justices Melody Stewart and Michael Donnelly concurred with her opinion.

On the other hand, Kennedy took a narrower interpretation of state law. She quoted Ohio and federal court cases that tell judges how to consider laws when sentences end in periods and phrases end in colons. Republican Justices Patrick Fischer and Pat DeWine joined the dissent. Fischer and DeWine are up for re-election in their seats.

Alleged robbery

The 16-year-old and another juvenile stood accused of confronting two women about to enter a car parked in front of their home. The other teen told the woman with the keys to, “Give me your keys, or I’ll shoot you in the f—–g head,” the decision says.

The other teen got the keys. The other woman offered her purse and threw it on the ground. The 16-year-old boy grabbed the purse, according to police, which contained the woman’s cellphone. The teens drove away in the car. But police were able to arrest the juveniles within minutes by tracking the phone, which they found in the 16-year-old’s pocket at the time of the arrest, the decision says.

In juvenile court, prosecutors brought two charges of misdemeanor aggregated robbery while possessing a deadly weapon against the 16-year-old because he indicated that he had a weapon during the incident. But because he was 16, state law required him to be tried in adult court if the juvenile court found probable cause, the decision says. He was charged with grand theft and theft of credit cards, both felonies, a misdemeanor charge of taking the cellphone, and failing to comply with the signal of a police officer, a felony, among other charges.

On Feb. 9, 2018, the court conducted a probable cause hearing in which the women and three police officers testified against the 16-year-old boy and the other teen. The court found probable cause in the aggravated robbery charges, which it noted would be a felony if he were an adult, and grand theft. It did not find probable cause with other charges. The court also did not find probable cause to believe the 16-year-old had a firearm at the time of the alleged robbery.

On April 19, 2018, the court conducted a hearing to determine whether the 16- was amenable to rehabilitation within the juvenile justice system and concluded he was not.

His case was transferred to adult court, and the state obtained a grand-jury indictment against him on the identical charges in the original juvenile complaint, plus an additional count of second-degree escape, accusing him of leaving a detention facility and committing a felony. He was 17, facing up to 50 years in prison.

The 16-year-old entered a plea agreement in which he was found guilty to one count of aggravated robbery with a firearm and a count of grand theft with no extra penalties for having a firearm, and escape, a third-degree felony. He was sentenced to nine years in prison.

Brunner’s opinion

Brunner took issue with the adult court charging the 16-year-old for crimes and tacking on enhanced penalties on which the juvenile court ultimately never found probable cause.

“One of the first and most critical determinations a juvenile court must make in evaluating whether to relinquish jurisdiction to an adult court… is whether probable cause exists to believe that the child committed the act” they were charged with, she wrote.

She wrote that the Ohio General Assembly supports this position by enacting laws that give juvenile courts the authority to initiate the transfers to the adult system.

“One of the primary reasons for establishing juvenile courts, which began to be established in the United States at the end of the 19th century, was to provide protection for those unable to care for themselves,” she wrote.

In the 1970s, the justice system focused on being “tough on crime,” which resulted in mass incarceration, Brunner wrote.

Today, the tide has turned the other direction, she wrote.

“The very purpose of the state juvenile code is ‘to avoid treatment of youngsters as criminals and insulate them from the reputation and answerability of criminals,’” Brunner said, quoting a 2002 Ohio case. “Stated another way, the juvenile-justice system must provide for accountability; yet it must also meet society’s need to secure its future through its youth. Thus, the juvenile-justice system must hold juveniles accountable for their actions and, whenever possible, provide them with opportunities for learning and growth toward a better path.”

Current state law outlines circumstances for which juvenile judges must or have the discretion to transfer kids to the adult system. Judges get discretion when the child doesn’t appear to be amenable to care or rehabilitation within the juvenile system or is a threat to public safety.

Because the juvenile judge found no probable cause for the gun enhancements, Brunner wrote that there was no requirement to transfer the 16-year-old’s case to the adult system.

For discretionary transfers, Brunner looked at how the legislature, when it passed the most recent juvenile court laws, defined certain words. She concluded that state law requires juvenile courts to transfer children to adult courts for certain “acts” or crimes for which there is probable cause that a child committed. Children are not to be transferred based on entire criminal complaints or criminal cases, she wrote.

Kennedy’s dissent

Kennedy would have upheld the lower courts’ orders. Kennedy argued that state law contains “plain and unambiguous language” for how children are transferred to the adult system.

“In construing the plain meaning of a statute, we adhere to a set of discrete rules,” she wrote. “When properly applied, these principled guideposts establish a protective barrier, ensuring that our duty to interpret the meaning of the law from only its text is not overridden by a desire for a particular outcome.”

Kennedy took issue with Brunner’s phrase that a finding of no probable cause means a charge “has been effectively dismissed.”

“Does it mean that the charge remains pending under the jurisdiction of the juvenile court, awaiting further evidence from the state?” Kennedy wrote. “Or does it mean that the charge is dismissed without prejudice or dismissed with prejudice? Regardless, none of these results finds support in the law.”

The determination by the juvenile court that there was no probable cause to believe the 16-year-old had a firearm doesn’t end the inquiry about whether the case should have been transferred to the adult court, Kennedy wrote.

Further, Kennedy accused the majority justices of legislating from the bench.

“Today, the majority creates an outcome by inserting its own policymaking preferences into the language of the statute,” she wrote. “The majority therefore elevates its policy preferences over the will of the people and the people they elected to serve in the General Assembly who are entrusted on behalf of all Ohioans to make policy decisions through the enactment of laws.”