The issue on which the majority reversed involved an instructional error. Although the state charged Ms. O'Dell with introducing cigarettes and a lighter to the jail, the jury instructions allowed prosecution by showing that Ms. O'Dell possessed the prohibited items in the jail. The COA agreed that these instructions allowed Ms. O'Dell to be convicted of a crime she was not charged with and reversed and remanded for a new trial:
The terms “introduce,” “take/send,” “possession,” and “distribution” are not synonymous or superfluous terms. Focusing on the terms relevant to this case illustrates this point. “Introduce” is defined as “to lead or bring in esp. for the first time.” Webster's New Collegiate Dictionary 606 (1973). Whereas, “possession” is defined as “the act of having or taking into control” or “control or occupancy of property without regard to ownership.” Webster's New Collegiate Dictionary 897 (1973). But “distribute,” on the other hand, is defined as “to divide among several or many.” Webster's New Collegiate Dictionary 333 (1973). We conclude there was instructional error.Ms. O'Dell also claimed that the prosecution in this case violated the Due Process Clause. The trafficking in contraband statute allows the administrator of each jail to designate what items can be lawfully possessed in each jail. In this case, the state did not introduce any written policy regarding prohibition of cigarettes and/or a lighter. Although one jailer indicated that there was such a policy, the officer that booked Ms. O'Dell into jail was not aware of it and Ms. O'Dell had certainly never been given such a written policy. The booking officer did indicate that Ms. O'Dell was told that cigarettes and lighters were not permitted in the jail. Ms. O'Dell raised a claim that oral instructions that an otherwise lawful item is prohibited in a jail was insufficient to provide notice of the crime.
The COA majority held that this issue was not raised below and refused to reach the issue for the first time on appeal. Judge Atcheson dissented from this part, holding that the issue was sufficiently raised on appeal and should have been reached by the court:
On appeal, Odell submitted the notice lacked both “adequate [constitutional] safeguards” and failed to fairly inform her that possession of the cigarettes and the lighter would subject her to criminal penalties as opposed to merely administrative sanctions within the jail. Odell generally characterized the shortcomings as due process violations without offering additional labels. The thrust of Odell's argument rested on the constitutional insufficiency of oral notice alone in giving sufficient warning of conduct the State has chosen to criminalize—what she terms “nondeceptive notice.” In its brief, the State counters that Odell received actual oral notice that she could not have cigarettes or a lighter in the jail. According to the State, the oral notice fully satisfied Odell's due process rights. So sufficiency of oral notice as a matter of constitutional due process has been joined and ought to be considered.
My analysis is not somehow judicially improper because it explores aspects of the issue from perspectives or using terminology the parties avoided. An appellate court may look beyond the precise arguments presented in the briefing of an issue, especially if those arguments are legally unsatisfactory. The briefs merely reflect the parties' assessments of the best advocacy for their respective positions—not the universe of every rationale for a given result. Appellate courts decide issues; they do not arbitrate or grade arguments. So the judicial resolution of an issue need not be rendered in lockstep with the argument or the terminology of one side or the other.Judge Atcheson went on to indicate that he would have held that oral notificiation of a prohibited item is insufficient to satisfy the Due Process Clause:
Written notice of what conduct will subject persons to criminal punishment straddles substantive and procedural due process and properly fits within both spheres. The history and tradition runs deep. Hammurabi remains one of the world's great law givers because, nearly 4,000 years ago, he authored a legal code. While some of the substantive provisions Hammurabi recorded were notable, the code's epochal significance lay in the very idea that the law should be written and, thus, both fixed and knowable. See Clorox Co. v. Chromium Corp., 158 F.R.D. 120, 125 (N.D.Ill. 1994) (“From the code of Hammurabi to the code of the United States, our judicial foundation have been embedded in the principle that law must be manifested in a written form.”). The virtue of fixed, knowable law infuses the jurisprudence of this country. And it is both implicit and explicit in constitutionally protected rights.
The Sixth Amendment to the United States Constitution, for example, requires that those accused of crimes be afforded notice of the particular charges against them. The right has always been construed to require written notice. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 167 (1963) (notice required under Sixth Amendment includes the right to indictment, a written statement of the charges). An accused's right to such constitutional notice of the charges extends to state prosecutions.
In [Cole v. Arkansas, 333 U.S. 196, 201–02 (1948)], the defendants were charged in an information—a written statement of the alleged crime—with one offense upon which the jury was instructed and then convicted them. On appeal, however, the Arkansas Supreme Court found the defendants guilty of a related, though more serious, charge. The United States Supreme Court, in an opinion Justice Hugo Black authored, reversed the decision, recognizing that “[n]o principle of procedural due process is more clearly established than [a defendant be given] notice of the specific charge.” 333 U.S. at 201. Later in the opinion, Justice Black described the constitutional defect in terms characteristic of a breach of substantive due process rights afforded criminal defendants. As a result of the Arkansas Supreme Court's ruling, the defendants in that case were “denied safeguards guaranteed by due process of law—safeguards essential to liberty in a government dedicated to justice under law.” 333 U.S. at 202.
In short, a person accused of a crime must be given written notice of that accusation to comport with a fundamental right recognized as a necessary ingredient of basic fairness. If that be so—and it most certainly must in light of decisions such as Cole—then a fortiori, citizens have at least an equally compelling and fundamental right to be informed in writing as to what conduct may cause them to be accused in the first place. Any sensible conception of fair notice requires nothing less. And simple logic defies the notion that general notice of criminal conduct might be imparted orally to the citizenry as a whole while an alleged transgressor would then be entitled to written notice only when being charged with a purported transgression.So, one COA judge found conviction under this statute to violate the Due Process Clause. The other two didn't disagree, they simply failed to reach the issue. If you have a prosecution for trafficking in contraband in a correctional institution based on an oral prohibition, you can should file a motion to dismiss attaching Judge Atcheson's dissenting opinion.
[Update: neither party filed a petition for review and the mandate issued on February 26, 2013.]