EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, September 5, 2018

Season 3 of the Serial Podcast and the Greg Rucker Case

Today, Serial released a trailer for Season Three of the podcast. In the trailer, Sarah Koenig makes clear that the team won't be covering a single case like they did in Season One (Adnan Syed) or Season 2 (Bowe Bergdahl). Instead, they will be covering a variety of "ordinary" cases from Cleveland to help shine a light on various issues in the criminal justice system. In the trailer, Koenig highlights one of these cases, the case of Greg Rucker. In the trailer, Koenig makes clear that she eventually convinced of Rucker's guilt; she seems to mention the case to highlight what's known as the "trial penalty" that defendants face by going to trial instead of taking a plea deal. So, what can the Greg Rucker case tell us about the trial penalty? 

Greg Rucker and Nicholas Kraft robbed Jack and Victoria Maynard on July 19, 2015 while the Maynards were using their 2012 Dodge Avenger to deliver Plain Dealer newspapers. Rucker and Kraft ordered the Maynards out of their Avenger and onto the ground. "Kraft pointed a silver gun at Jack Maynard’s head during the incident and at times swung the gun to point it at Victoria." Later that same day, Rucker and Kraft robbed Bruce Page while he was riding his bicycle. They ordered Page to get on the ground, and "Kraft pulled out a silver gun and ordered Page to empty his pockets."

Kraft entered into a plea deal with the State, pursuant to which he got a four year sentence for his crimes. Rucker, meanwhile, was charged with

-three counts of aggravated robbery based upon the robberies of Jack Maynard, Victoria Maynard, and Bruce Page, with his accomplice using a deadly weapon;

-three counts of kidnapping based upon ordering the Maynards out of their Avenger and to the ground and ordering Page off of his bicycle and to the ground;*

-firearms specifications based upon the gun being used in the crimes; and

-having weapons while under disability based upon Rucker's prior criminal record and his accomplice having a gun.

The aggravated robbery charges are pretty straightforward: Rucker and Kraft robbed three people with a deadly weapon. And the same goes for the firearms specifications and having weapons while under disability. A firearms specification adds years of incarceration for the use of a gun in a crime (here, three years) based on the recognition that guns are more dangerous than even other deadly weapons such as knives. And the "having weapons while under disability" charge" is based on the recognition that people with serious prior convictions who have guns present a potential danger to the community. And while Rucker himself didn't hold the gun, his accomplice did, which means that the law treats the gun as if it was in Rucker's possession.

The three kidnapping charges are what we call horizontal overcharging, which is charging a defendant with multiple crimes arising out a single criminal incident. Here, the crimes at issue seem more like robberies than kidnappings, and it certainly seems like overkill to charge both. And you could therefore see how this overcharging could coerce a defendant into a guilty plea, given the potential punishment a defendant like Rucker faces if convicted of all crimes. That said, a defense attorney would almost certainly advise Rucker that he wouldn't be given such a punishment in a case like this...and Rucker wasn't.

Rucker was convicted of all seven crimes and the firearms specifications, but there are two important things to note. First, the judge found that Rucker's kidnapping convictions merged into his aggravated robbery convictions. In Ohio, the merger doctrine holds that "allied offenses of similar important" merge into one another, essentially erasing the conviction/sentence that would apply for one of the crimes. And Ohio courts have consistently held that aggravated robbery and kidnapping are "allied offenses of similar import," at least when the defendant only moves the victim to the extent necessary to complete the robbery. Therefore, while Rucker was convicted of six offenses, his three kidnapping convictions merged with his three aggravated robbery convictions, meaning that it was as if he was only convicted of aggravated robbery. The State stipulated, or agreed, to this merger.

Second, the judge ran Rucker's aggravated robbery convictions concurrently instead of consecutively. When sentences run consecutively, they run back-to-back-to-back. Rucker was given six years imprisonment for each aggravated robbery charge. So, if these convictions were in 2018 and ran consecutively, he would serve the first sentence from 2018-2024, the second sentence from 2024-2030, and the third sentence from 2030-2036.

Conversely, when sentences run concurrently, they run in parallel, or at the same time. If Rucker's in 2018, this would mean that he would served each of his six year sentences for aggravated robbery between 2018-2024. Again, this is what the judge did, meaning that Rucker is serving all three of his aggravated robbery sentences at the same time. It seems pretty straightforward for the judge to have done this for the two aggravated robbery sentences that arose out of the same transaction: the robbery of the Maynards. But Rucker got a real benefit from the judge making the sentence for the Page robbery run concurrently as well.

So, it was six total years for the aggravated robbery convictions. Then, it could have been another nine years for the firearms specifications, but the judge merged the two firearms specifications for the Maynard robberies, meaning that Rucker got six years for the firearms specifications. The judge ran these consecutively with the aggravated robbery sentences, meaning that Rucker had a sentence of 12 years. Throw in a one year consecutive sentence for having weapons under disability, and Rucker's total sentence was 13 years. As noted, he could have gotten 6 years pursuant to a plea deal, and his accomplice, who held the gun and turned State's evidence first, got 4 years.

Rucker's case thus demonstrates the trial penalty, but it's not an egregious case, and I can't find too much fault in the behavior of the prosecutor or the judge. Of course, given that Koenig said this season's focus will be on "ordinary" cases, maybe that's the point. It will be interesting to see what Koenig says about the Rucker case when the series airs.

________________

*Koenig says the kidnapping charge was based upon "hindering", but the hindering portion of Ohio's kidnapping statute deals with hindering "a function of government, or to force any action or concession on the part of governmental authority."

-CM

http://lawprofessors.typepad.com/evidenceprof/2018/09/season-3-of-the-serial-podcast-and-the-greg-rucker-case.html

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Comments

Could the judge have simply decided that all of the setences should run consecutively? That seems like it introduces a lot of variability into the severity of sentencing for any particular charge.

Posted by: Michael | Sep 8, 2018 5:40:30 AM

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