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Running out of time

I usually try to do one post a week on civil stuff, but there really isn't anything recent on that out there worthy of its own post.  I'll be on vacation next week, so maybe by the time I get back, the Men (and Women) in Black will decide to be a bit more cooperative.  In the meantime, I ran across an 8th District case from a few weeks back that's worth a read.

RC 2901.13 imposes a six-year statute of limitations for all felonies except murder and aggravated murder.  Normally, the time stops running when an indictment or arrest warrant is issued, but subsection (E) provides that the time doesn't stop if "reasonable diligence" isn't used in serving the indictment or warrant.  Last year, in State v. Jackson, the 8th District upheld a dismissal for that reason, finding that the state's solitary effort in eight years to serve the indictment -- by sending the summons ordinary mail, which came back "address unknown" -- was insufficient to keep the statute from running before the state finally located the defendant in a federal prison.

The situation in State v. Hughes presented an even longer time interval:  the defendant was arrested and straight-released in 1992, but didn't appear in court until twelve years later.  Again, the sole attempt to serve him with summons was some six months after his arrest by mail, certified this time, at an address which came back as "unknown."

There was a complicating factor:  the defendant, whose name is given as Hugh Myers on the docket, had told the police when he was arrested that it was "Hugh Myron."  Police records showed he also used the name "Hugh Myrie" and, in a flash of originality, Jeffrey Toland and James Roy Scott.  In fact, somewhat embarrassingly, the state had arrested and prosecuted him for drug trafficking in 1998 under the name "Myrie Hugh," without ever realizing it was the same guy.

The state argued, not without justification, that they'd done all they could:  they had attempted to serve the summons at the only address they had for the defendant -- the one he'd given them -- and that his use of aliases further hindered his apprehension.  The court wasn't buying, though.  It's difficult to read Hughes as holding anything other than that a single attempt at service isn't going to cut it, regardless of what the defendant has done.

That's an interesting result; the court could have easily found that the use of the aliases absolved the state from further responsiblities to serve the indictment.  And this was from a pretty much middle-of-the-road panel of judges.

This may be purely a matter of perception, but I get a sense of the 8th District moving in a direction over the past several years, not so much a being pro-defendant, but of being much less tolerant of prosecutorial excesses or deficiencies.  It's common knowledge among the court and defense bar, and even many assistant prosecutors will admit, that the country prosecutor's office has essentially adopted a scorched-earth policy:  it's indicting cases that shouldn't be indicted, it's trying cases that shouldn't be tried, and it's taking discretional positions -- on expungement, plea bargaining, and the like -- that it shouldn't be taking.  I had an oral argument on Monday in a case involving a sexual predator designation, and the prosecutor who argued the case took me aside afterwards and said that he hoped I'd win, because he'd been shocked by the result in the trial court.  When I asked him why they'd sought that designation in the first place, he fluffed it off with, "Well, that's just our office's policy."  It may be that the judges over on Lakeside have sensed the same thing, and have decided to push back a bit to even the scales.

Like I said, this may all be a matter of perception.  Then again, it may not be just my perception.

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