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What's Up in the 8th

There was only one win for defendants in the near-dozen cases the 8th District produced this week, but it's such a biggie that it gets its own post tomorrow.  The rest of the crop:

Charles Johnstone was, in some ways, a lucky man:  he was one of the few defendants whose identification process was so bad that an appellate court said the trial judge should have suppressed it.  And it wasn't one of those cheesy showups, where the police drag some poor handcuffed rummy from the back of a police car, shine a flashlight on his face, and ask the victim, "Is this the guy," as if the victim's going to say, "Gosh, sorry to put you guys to all this trouble, but I think the guy who robbed me was maybe an inch or so taller."  No, this was a photo array, and, with a hat tip to Elizabeth Barrett Browning, let us count the ways in which this was screwed up.  First, before showing the victim the photo array, the detective told him they'd found the suspect through a DNA match.  That's a no-no, the court says, because it tips off the victim that the suspect is in one of the pictures, with the likely result that he will feel compelled to pick someone.  Second, despite the fact that the victim was Arabic, there was no translator present when the array was shown.  The detective's testimony that he had "no trouble" communicating with the victim was belied by the fact that, at trial, the court had to bring in an interpreter because the victim couldn't answer the most basic questions.  But the kicker was that, as the detective conceded at the suppression hearing, the picture of Johnstone "appears to have a light shining on him," which the detective attributed to "a color correction problem."

So, Johnstone's conviction gets thrown out, right?  Nope.  While the court in State v. Johnstone concludes that the identification should have been suppressed, it's harmless error, because of the DNA evidence.  TiVo'ing a few episodes of CSI might have done Johnstone some good; if he had, he'd have known better than to leave a cigarette butt in the car of the taxi driver he'd just got done robbing.

While Johnstone apparently didn't watch TV, Paul Costello must've been a fan of MTV.  He's in the cast of State v. Craig, reprising the role of the jailhouse snitch, with a twist:

Costello testified that, while incarcerated, he and appellant discussed the shooting.  After being released, Costello wrote a song about appellant's story, and the song's lyrics were read to the jury.

While this perhaps proves the Roman playwright's observation that it is impossible not to write satire, the more significant portion of the court's opinion focuses on the state's repeated efforts to introduce evidence that Craig carried a gun.  The court does an excellent job of sifting through the case law on EvidR 404(B) and decides this shouldn't have been admitted.  But guess what?  This too gets swept under the Harmless Error Rug, even though the court incorrectly uses the more stringent "harmless beyond a reasonable doubt" standard for constitutional error, which this wasn't. 

Much more troubling is the court's treatment of a police officer's testifying that he felt one of the state's witnesses was being honest in his testimony, and that the testimony was consistent with statements of other witnesses.  As the court notes, the Supreme Court in State v. Boston held that, in a child sex abuse case, an expert couldn't testify as to the veracity of the child victim's statements.  As the court also notes, "this concept has been extended, and it is now undisputed that a police officer may not testify to a witness's veracity." 

One of the most pernicious developments in 8th District jurisprudence is its conclusion that Boston doesn't apply if the child victim testifies at trial.  I did an extensive analysis -- well, as extensive as I get here -- on this issue a couple years back, and pointed out why the court's position is wrong, wrong, wrong.  Well, now it's worse, because the court extends that reasoning to the police officer's testimony:  since the three witnesses themselves all testified at trial, "the jury had the opportunity to ascertain the credibility of the witnesses."  So what?  Of course it's the jury's function to "ascertain the credibility of the witnesses," so what do they need the police officer's testimony on that account for?  What's worse is that this holding completely negates the "undisputed" concept that "a police officer may not testify to a witness's veracity."  If you're going to say that an officer can't testify as to the witness' veracity unless the witness testifies at trial, what you're really saying is that the officer can always testify as to the victim's veracity, because if the victim doesn't testify, the Confrontation Clause and the hearsay rules bar admission of their statement, and there is no veracity to testify to.

I don't know, maybe the sing-along with the jury through the court off its feed.  It does a much better job in State v. Vanderhorst in sifting through the admissibility of statements of a domestic violence victim who didn't show up at trial.  There were two statements in issue, one to the police immediately after the incident, and another to the emergency room nurse.  There are, of course, two hurdles to admission of these statements:  Crawford and the hearsay rule.  The statements to the police were excited utterances, and were made for the purpose of enabling the police to meet an ongoing emergency, under Davis v. Washington.  The statements to the emergency room nurse don't present Confrontation Clause problems, because a statement isn't "testimonial" unless it's made to the police or their agents.  And the hearsay rule permits admission of statements made for purposes of medical treatment.  Very good work.

Tomorrow, we'll talk about the Halley's Comet of Ohio criminal jurisprudence:  a case getting reversed for a violation of the defendant's right to speedy trial.

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