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What's Up in the 8th

How rare is it for a criminal case to be dismissed for a speedy trial violation?  According to the 2007 Ohio Court Report (the latest one available on the Supreme Court website), of 99,779 criminal cases disposed of that year, only 84 -- 8/100ths of a percent -- were dismissed for that reason.  So it's somewhat surprising that the 8th would find such a violation for the second time in two months, and for the same reason.

In State v. Pirkel (discussed here), the 8th affirmed a dismissal for speedy trial where the trial judge had granted continuances because she was in trial on another matter or was "unavailable."  The continuances there totaled 28, 43, 22, 23, and 21 days for continuances, and 29, 19, and 42 for unavailability.  The facts in State v. Loder are even worse:  Trial was originally scheduled for June 23, 2008, and wasn't actually held until 260 days later.  Why?  Mainly because of continuances of 45, 62, 77, and 47 days, all because the court was engaged in trial.  As in Pirkel, the court doesn't get into an extended discussion of what constitutes an "unreasonable" delay, and it may that the best the court will muster is the Potter Stewart obscenity formulation, "I know it when I see it."  But if I were a judge in Cuyahoga County, I'd think long and hard before continuing a case for more than a  few weeks because I was in trial, and I wouldn't do it more than once or twice.

Loder stands for another proposition.  While written plea forms are common in other counties, they're rare here, simply because of the caseload.  This judge happened to use one, which clearly explained all the defendant's rights, including his right to compel witnesses to appear by subpoena.  The judge never mentioned that in a plea colloquy in a companion case, so that gets vacated, too; the fact that it was in the plea agreement isn't enough.

Allied offenses are in the spotlight in two cases.  The defendant in State v. Tukes after breaking into his ex-girlfriend's apartment, he hits her current boyfriend, first with a trowel, then with a pipe wrench.   Well, at least he's handy with tools.  He contends that the trial court should've merged his convictions for aggravated burglary and felonious assault.  The court compares the elements of the two, finds that each has an element the other does not, and concludes, as has every other court which has addressed the issue, that they're not allied offenses.

The court comes to the opposite result in State v. Jackson, where life imitates artist:  Jackson -- yes, his first name is Michael -- is charged with having sex with a 15-year-old boy.  He's convicted of rape and unlawful sexual conduct with a minor, which becomes a third-degree felony upon proof that the defendant is more than ten years older than the victim.  The sole basis for this finding is the victim's statement that Michael "is, like, 26," which the court decides is, like, insufficient.

In its allied offense analysis, the court employs the same test Tukes did, and comes to the same conclusion:  Rape and unlawful sexual conduct with a minor each contain an element the other does not -- the former requires force, and the latter doesn't, while the latter requires a minor, which the former doesn't.  So why the different result?

The first inquiry [in allied offense analysis] is whether the commission of one [offense] will necessarily result in the commission of the other.  Here, applying Cabrales, we find that the commission of the rape wholly subsumes the commission of the unlawful sexual conduct with a minor. We therefore find the two offenses to be allied.

I'm not sure this is right, but this perhaps best demonstrates the vagaries of allied offense law.  Under Rance's "abstract comparison" test, the two would definitely not be allied.  Nor would they be allied under the supposed "societal interest" test in State v. Brown (discussed here and here), but they might be if the Supreme Court overrules Rance and goes back to Newark v. Vazirani, because there you look to see whether one offense necessarily resulted in the other under the facts  of the case.  Do they merge under Cabrales?    I would've said no, but an indication of the confusion over this is that in the case cited in Jackson to support its result, the 5th District's decision in State v. Grant, the court there never addressed the question of whether the two offenses merge, because the prosecution in the trial court agreed that they do.

Finally, a dating tip.  The defendant in State v. Kopchock is blissfully unaware of Bensing's Law of Arithmetic Age Regression, also known as the Lolita Theorem, which postulates that if a girl you meet at a party tells you she's 18, then text messages you two weeks later and tells you she's 16, she's probably actually 14.   The offense -- again, unlawful sexual conduct with a minor -- requires a reckless mens rea, and despite claiming that he was rendered "utterly speechless" upon learning the girl's true age from her father, Kopchock doesn't even make an assignment of error on that point on appeal, the argument foreclosed by, among other things, his text messages to her telling her she was "jailbait."  (In literature, this is known as foreshadowing.)  Kopchock, a college student, claims that being labeled a Tier II sex offender and being required to register as such for the next quarter-century of his life is cruel and unusual punishment, but despite the fact that such a Draconian outcome would indeed seem more fitting if we were operating under Sharia law, the argument fares as well as you expect it would.


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