It used to be that when I was sitting over at the Justice Center, waiting around for a pretrial in a criminal case, and I’d hear the bailiff say disparagingly about a criminal defense lawyer, “Oh, he never shows up until eleven,” I’d think, thank goodness I don’t have a reputation for that sort of thing.  Then the other day I realized:  those lawyers are the smart ones.  In the vast majority of cases any more, there’s nothing you’re going to get done at nine or ten that you couldn’t get done at eleven, and in most cases you’re not going to get anything done until eleven anyway, so why bother showing up before then?

There’s been extensive talk about how to get Cuyahoga County’s court system to work better, and that’s all it’s been:  talk.  We all know that there are too many bullshit drug cases and that the prosecutor’s office is largely dysfunctional and that while there are a goodly number of hardworking judges, there are a goodly number who aren’t.  We just don’t do anything about it.  Last year I tried a civil case in Cuyahoga County which involved six witnesses.  It took seven days.  I also tried a civil case in Lake County which involved six witnesses, and it took a day and a half.  It’s kind of sad when you’re happy to travel outside the county for a trial because you know it’ll take much less time.

Anyway, while I spent three hours each on two consecutive mornings over in court last week waiting for something — anything — to happen in two separate criminal cases last week, I did get some stuff accomplished, mainly reading a few recent cases from the 8th District.  I’d mentioned one in the Case Update on Tuesday, but it deserves a bit more extended treatment.

The case is State v. Ogle, a child sexual molestation case involving what’s known in the trade as “copycat indictments”:  identically-worded counts, in this case alleging kidnapping (4 counts), gross sexual imposition (10 counts), and rape (3 counts), all occurring within a period stretching over seven years.  Ogle wound up being convicted of two counts of GSI and one count of kidnapping; the jury acquitted him of the other eights counts of GSI, three of kidnapping, and two of rape, and hung on the other rape count.  Ogle filed a motion to dismiss the hung count on double jeopardy grands, which the trial court denied.  The case then went up to the court of appeals.

I’d mentioned last October that there’s a dynamite 6th Circuit case on multiple indictments on sex offenses, Valentine v. Konteh, and that case played a large role in the outcome of Ogle.  In Valentine, the defendant had been indicted on twenty counts each of rape and felonious sexual penetration over a period of time.  The child victim described one event of abuse, and testified it happened “fifteen or twenty times.”  The 6th Circuit noted that there were double jeopardy implications in all this:  it has to be clear what the defendant was convicted of, in case he gets charged with similar offenses arising out of the same conduct in the future.  What would preclude the child from remembering that there were actually 30 incidents of abuse, and the state indicted him on an additional ten counts?  How could anyone tell that he hadn’t already been convicted of some or all of those incidents the first time around?

That was a particular problem in Ogle’s case, because there was still the count out there that the jury had hung on.  Ogle argued that if he was retried on that count, there was no way to determine if that count was different from the ones for which he’d been acquitted.  The appellate court agreed:

In this case, the State indicted three carbon-copy rape counts. No part of the indictment, no amendment to the indictment, no bill of particulars, no jury instruction and no verdict forms exist to differentiate these counts one from the other such that a court in a second trial would be able to discern whether there had been a previous finding of not guilty as to the alleged act. It is, at this juncture of the proceedings, impossible to tell whether the rape counts that resulted in acquittal referred to the allegation of digital penetration, or the allegation of oral copulation. Retrial upon the mistried rape count, therefore, would constitute double jeopardy.

That took care of the hung count.  The court also determined that the trial the judge had erroneously excluded expert testimony on suggestibility of interrogation procedures in child abuse cases.  That meant the other convictions had to be reversed and retried.

Well, no they couldn’t be retried, because the same problem would arise as did with the hung count:  since there was nothing to distinguish what Ogle had been acquitted for from the counts on which he’d been convicted, the same double jeopardy problem existed.  Thus, a retrial on those counts was prohibited as well.

Ogle obviously has some huge ramifications.  I think the court’s analysis is right on the money, but here’s the bigger question:  what if there hadn’t been a hung count, and if the trial court hadn’t committed error requiring reversal of the conviction?  Would double jeopardy have required vacating the convictions anyway?  Probably not; in Valentine, the court simply vacated all but one of the convictions on each offense.

One thing’s clear, though; if the prosecutor’s continue indicting copycat counts, and make no effort to distinguish them, they do so at their peril.