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Prosecutorial discretion

The lead opinion in State v. Ollison from the 8th District last week doesn't give any clue that the case is out of the ordinary.  Ollison and his girlfriend, Barbara Williams, lived in a trailer in Cleveland.  They were acquainted with Moore, and let him sleep in a car on the property.  The relationship with Moore grew contentious -- according to Ollison and Williams, Moore broke into the trailer, set Ollison's truck on fire, and threatened them and shouted obscenities whenever he came by.  One day he did that, and Ollison had had enough, and got his shotgun.  Moore started walking away, but Ollison fired and hit him in the back of his legs. 

In a bench trial, the judge found Ollison guilty of the lesser offense of aggravated assault, and gave him the minimum six month sentence, plus the three years for the gun spec.  Ollison argued on appeal that he should have been found guilty of negligent assault, the court properly noted that there wasn't anything negligent about what he did, and that, as they say, is that.

And then Judge Gallagher does a Paul Harvey imitation in his concurrence, and gives us "the rest of the story."

Turns out Ollison was 76 years old, and  a Korean War veteran.  He suffers from congestive heart failure.  He had no prior criminal record.  He never denied what he did, or tried to minimize it.  Moore, on the other hand, had served twenty-one years in prison for felonious assault and aggravated burglary.  Ollison fired the shotgun from 35 yards away; three small pellets struck Moore in the lower legs.  Moore declined hospital treatment, and the trial judge specifically found he suffered no "serious physical harm." 

So what's the point?  Not that Ollison shouldn't have been prosecuted, or should have been acquitted; Gallagher agrees that "the law cannot sanction Ollison's decision to engage in vigilante justice against Moore."  His beef is with the prosecutor, and more particularly that they never offered to take out the gun specification, which is why Ollison will probably die in prison.

Gallagher says "there is no evidence in the record that Ollison was offered a plea," but just because there's no evidence in the record doesn't mean one wasn't offered.  So on Monday, I ran into Ollison's trial lawyer and asked him about it: "Did the prosecutor offer to take out the gun?"  He shook his head in disgust.  "Hell no.  That's why we had to try the case."

This isn't the first time the 8th has raised the question of prosecutorial discretion; interestingly, Judge McMonagle, the author of the lead opinion in Ollison, noted that very issue with regard to expungement in a case over two years ago, State v. Boddie, which I discussed here

Should the prosecutor have offered a deal?  I think so, but then again, as you've probably figured out by now, I need to keep a bucket nearby at all times for my bleeding heart, and the same could probably be said for McMonagle.  Gallagher doesn't have that problem.  He's a fair guy, but nobody's going to try to portray him as soft on crime, especially since he served as an assistant county prosecutor for seven years.

Gallagher would do everybody a favor if he'd print out and frame the last paragraph of his concurring opinion, take it back to his old stomping grounds, and make sure it's conspicuously posted : 

This case brings to mind the old adage that just because a prosecutor can do something, does not always mean he should.  Here the prosecutor declined to exercise his discretion and remove the gun specification, and he no doubt believes that justice was served.  I, on the other hand, am left with the sinking feeling that it was not. Prosecutorial discretion is often the most powerful component in a criminal prosecution. There are times when it should be exercised. In my view, this was the appropriate time.


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