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Criminal Justice Update

Appeals Section, prosecutors team up on Ohio Supreme Court cases


By Mary Alice Casey

The Ohio Attorney General’s Office stands ready to assist county prosecutors’ offices in their cases before the Ohio Supreme Court.

Lucas County Assistant Prosecutor Evy Jarrett knows the value of that offer. Jarrett has argued several cases before the Ohio Supreme Court, including State v. Barker in June. While confident in the strength of her case and armed with past experience, she appreciated the extra measure of support she received from the Attorney General’s Appeals Section.

The case was one of about 35 the section supported via amicus briefs in 2010 and early 2011. The Appeals Section also gives prosecutors the opportunity to practice in a moot court setting prior to their Supreme Court appearances. While this most often occurs when the Attorney General’s Office is sharing argument time in a case, Solicitor General Alexandra Schimmer said it also is an option for others.

In Barker, the prosecution asked the Supreme Court to overturn a lower court ruling that the trial judge’s plea colloquy — advising Christopher Barker that he had the “right to call witnesses to testify on (his) behalf” — did not make it clear he could subpoena witnesses. In a unanimous opinion issued in August, the justices agreed with the state.

Barker was indicted in 2009 on five counts of unlawful sexual conduct with a minor for allegedly having sex with his 13-year-old half-sister. The prosecution said Barker admitted to giving the girl drugs and alcohol when he had sex with her three to four times a month over a three-year period. He entered no contest pleas to three counts, but later appealed, saying he did not realize he could compel witnesses to testify.

Jarrett’s brief noted that most people would interpret the phrase “right to call witnesses” as the ability to subpoena those witnesses. The Attorney General’s amicus brief complemented that stance, pointing out that the 6th Amendment’s Compulsory Process Clause often is referred to as “the right to call witnesses.” Assistant Attorney General Erick Gale and the Solicitor General’s section prepared the office’s amicus brief and shared time with Jarrett before the Supreme Court.

“Erick provided research that wasn’t present in my brief,” Jarrett said. “He gave a constitutional, historical perspective that was excellent as well as an overview of constitutional law in general that wasn’t readily available to me.”

The Appeals Section monitors cases the Ohio Supreme Court agrees to hear and files amicus briefs when cases have the potential for broad or lasting impact.

“We can provide another voice in the case to help clarify the issues and to help the court see the overarching themes of a case and understand the basic principles underlying an area of law,” said Schimmer, who has been with the office since February 2009 and was named solicitor general in March.

“One very important principle in criminal law is consistency; that’s part of what makes the law fair and just,” she added. “Because our office has a perch to see how issues play out across the state, we can be a voice of consistency.”

The Attorney General’s Office argues dozens of cases each year before high courts — the Ohio and U.S. Supreme Courts and the U.S. Court of Appeals for the Sixth Circuit — and its attorneys can provide valuable support for county prosecutors’ offices.

“Because an appeal at this level means more than preserving or reversing a single judgment, the court will want to know how the principle of law will play out in a broader way,” Schimmer said. “We try to help present that bigger picture.”

The office’s moot courts bring together attorneys from Appeals and other sections who read prosecutors’ briefs in advance, listen to their arguments, and pepper them with questions — just as justices might.

“The experience of vocalizing your arguments is very different from writing them down or rehearsing them in your head,” Schimmer said. “It’s very good to stand up and practice that. Moot courts are incredibly useful for helping an attorney answer questions with precision and conditioning his or her brain to the speed of questions that come from a panel of seven justices.”

For Jarrett, the opportunity was invaluable.

“I had access to eight people who read the briefs, understood the issues, and asked difficult questions about the case,” she said. “It’s really tremendous that they’re willing to set aside time to do that.”

For assistance: To request the Appeals Section’s assistance with an Ohio Supreme Court case in the form of a moot court, contact Kim Blankenship of the Appeals Section at or 614-728-7510.