Tuesday, March 24, 2015

Trial Judge's Opening With Pledge of Allegiance Does Not Violate Establishment Clause or Due Process

In State of Ohio v. Daniels, (OH App., March 16, 2015), an Ohio appeals court affirmed the drug possession and drug trafficking conviction of Michael Daniels, Jr., who, among other things, argued that the trial court erred when it required the parties and the jury at his trial to recite the Pledge of Allegiance that invokes a Supreme Being in violation of the Establishment Clause. He also urged that the Pledge amounts to a required loyalty oath that violates the due process clause.  The court held that, first, Daniels waived any challenge by failing to object to the Pledge when the court announced that it would be recited. It continued:
[E]ven if the waiver doctrine did not apply herein, appellant provides no definitive case law holding that the use of “under God” in the Pledge of Allegiance, particularly when made part of a customary courtroom recitation, constitutes an impermissible State endorsement of monotheistic religion ..., and he further fails to articulate how an appellate reversal of his conviction would be the proper remedy for such an alleged constitutional violation.
Responding to Daniels' due process argument, the court quoted from a 2004 federal 10th Circuit Court of Appeals opinion:
 "We recognize that trial judges, among their many other responsibilities, should take care not to create the impression that it is appropriate for the judge or the jury to favor the prosecution simply because the court and the prosecution are both institutions of the United States. However, we do not think it reasonable to suppose that the jurors inferred from the Pledge of Allegiance a patriotic obligation to serve as a rubber stamp for the prosecution...."