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Three from the 8th

If you didn't see the Case Update when you checked here yesterday morning, it's posted below.  I screwed up and set it to show up at 7:40 in the evening instead of 7:40 in the morning, and didn't catch it until noon.

Since most of my readers are from Cuyahoga County (the other one's in Cincinnati), I figured I'd do a post on several 8th District cases in the last few weeks which merit some special attention, dealing with speedy trial, expert testimony in child rape cases, and the drunk driving statutes.  Now there's an eclectic mix...

First up is the speedy trial decision, State v. WellsThe result wasn't surprising -- the court held defendant's speedy trial rights weren't violated -- but the language was. 

See, here in Cuyahoga County, the bailiffs automatically record that any continuance of a pretrial is at the defendant's request.  I've had cases where the pretrial had to be continued because the prosecutor didn't have the file, only to subsequently find out that the continuance was at my request.  I've had cases where I go to the first pretrial, am given a trial and final pretrial date, and later look at the docket and learn that the first pretrial was "continued" -- at my request, natch. 

The reason for this is obvious:  since a request for continuance by the defendant tolls the speedy trial time, making all continuances at the defendant's request makes it virtually impossible to get a speedy trial violation.  And since no bailiff or judge wants to hear that some hardened criminal winds up with a get-out-of-jail free card because somebody screwed up keeping track of the calendar, well... you get the idea.

Turns out the court of appeals may be aware of that little trick, too, because the opinion in Wells contains this line:

Appellant argues that, although the docket reflects that he asked for continuances nine separate times for discovery purposes, those continuances were not actually at his request. While we accept that the court speaks through its docket entries, we are sensitive to the fact that there is no record of written motions or transcript testimony in open court that appellant requested any or all of these continuances.

Sure, it's dicta, but if I've seen some situations where the case has dragged on for over a year, with twelve "pretrials continued at defendant's request" notations on the docket.  If you've got one, this is a case to grab.

And if you've got a child rape case, State v. Winterich is the one you want to look at.  The question of how far a social worker or psychologist can go in backing up a child victim's testimony had been the subject of extensive debate, and was supposedly resolved with the Supreme Court's decision in State v. Boston holding that an expert can't testify as to the truthfulness of a child's statements.  There's a good bit of wiggle room in that rule:  basically, anything short of saying that the child is telling the truth -- testifying that her testimony "is consistent" with abuse, for example -- is permissible.

The court in Winterich takes a much more restrictive view of what's allowed.  It held that one social worker's testimony that the victim "seemed believable" crossed the line.  More importantly, it struck down the statements of the doctor and the nurse who'd examined the child, and had testified that the alleged sexual abuse was "presumed" or "very possible" based upon their findings.  As the court's opinion points out, though, there was no medical evidence to support the diagnosis, and thus the prosecution hadn't laid a "proper foundation" for their opinions.

To be candid, Winterich is an outlier:  there are any number of cases out there in which more questionable testimony than appeared here was allowed by appellate courts.  But if you've got a case like this in Cuyahoga County, the opinion in Winterich is a must-have.

And if you've got a DWI case with priors, you'll want to look at Cleveland v. Jeric.  Jeric was convicted of shortcutting an intersection -- driving through a parking lot at an intersection to avoid the light -- and appealed pro se.  (Hard to believe he didn't want to pay a lawyer to handle a big case like that.)  The argument that the court bought was his third, over his sentence.  Ohio law provides that a third traffic violation in a year is a third degree misdemeanor, and that's what Jeric had gotten, because he'd been convicted of two other traffic offenses within the previous year.  He argued that the time should have been calculated from the date of the offense, not the date of his conviction, and the court agreed.

So what?  So this:  here's language that was at issue in Jeric

If, within one year of the offense, the offender previously has been convicted of or pleaded guilty to two or more predicate motor vehicle or traffic offenses, [the offense is] a misdemeanor of the third degree.

Here's the language from 4511.91(G)(1)(b), the DWI statute.

an offender who, within six years of the offense, previously has been convicted of or pleaded guilty to one violation of division (A) or (B) of this section or one other equivalent offense is guilty of a misdemeanor of the first degree.

The statute pertaining to upgrading a DWI to a felony reads the same way.

There's some case law from other jurisdictions saying that the time runs from the date of the previous conviction, not the date of the offense, and I think that a pretty good case could be made that that's the clear meaning of the statute.  Not here in Cuyahoga County, though.

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