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Friday Roundup

We'll call this the With a Little Help From My Friends Edition:

If at first you don't succeed.  The Ohio Supreme Court finally came down with some decisions this past week; quite a few of them, as a matter of fact, so I'll have plenty to write about in the Case Update on Monday.  Yet another reason to choose life.  One of them was another one in the W column for John Martin, head of the Cuyahoga County PD's appellate division, in State v. Miller.  I'll discuss the legal aspects next week, but the back story is rather interesting.  Turns out that the State entrusted delivery of its merits answer brief to a delivery service which shall go nameless but rhymes with Red Mex, only to miss the filing deadline when the service's truck broke down on the way to Columbus.  The prosecutor's office asked for leave to file the brief a day late -- a motion in which Martin, the consummate gentlemen, joined -- only to be told by the clerk's office that it wouldn't accept it for filing because the Supreme Court rules made no provision for such a motion.

You don't file an answer brief, you don't get to appear at oral argument, and so when Martin stood up before the court in September to argue the case, there was no one at the prosecutor's table.  Being the prick that I am, I probably would have begun by saying, "I'd like to reserve five minutes for rebut -- oh, that's right, I don't have to do that, because the other side ISN'T HERE!"  Martin, despite his elfin proportions a much bigger man than I, again demurred, even going so far as to explain what had happened and absolving the State of blame for it.  The case involved the failure of the judge to impose restitution at the time of the sentencing hearing, and one of the justices inquired whether a prosecutor had been present at the sentencing.  Again, I would have cast a backward glance at the empty opposing table and sighed, "Yes, there does seem to be a pattern here, doesn't there?"  Again, Martin refrained from so base a response.

And he ran the table, winning 7 to zip.  Lest you think it was a win by forfeit, here's the kicker:  the Supreme Court initially turned down the case for review.  When Martin saw that the vote on that was 4-3, he filed a motion for reconsideration, and one of the justices flipped and agreed to hear it.

Well, that explains it.  On Tuesday I mentioned the 8th's decision last week in State v. Russell, which reversed a judge's decision denying a motion for new trial on the basis of newly discovered evidence.  According to the opinion, as a result of public records requests after trial, the defense obtained documents that hadn't been provided by the State at trial.  The opinion took pains to note that the documents had never been turned over to the county prosecutor, and most of the decision concentrated on the issue of whether the information would have affected the outcome of the trial.  I had some qualms about the court's determination on that point; since the case had been tried to the judge, and he seemed to be in a better position to decide that issue.  I figured that the court's decision on that point might have been affected by the judge's determination that the evidence wasn't newly discovered at all, but was available to the defense at the time of trial.  I couldn't figure out how the defense could have had the evidence if the prosecutor acknowledged that she didn't, and found the judge's decision on that point completely unsupportable.

In fact, I couldn't really figure it out; the judge in question is a thoughtful, fair, and intelligent guy.  Well, I talked to one prosecutor, and got an email from another, and there's another side to the story:  according to them, the State was able to establish that the "newly discovered evidence" had been given to the defense attorneys by the municipal prosecutor before the case got bound over.  They had it all along.

I don't know if that's true, but my guess is that we'll eventually find out.

Factoid for the day.  On Wednesday, I wrote about the Plain Dealer's most recent attack on beleaguered Cuyahoga County Prosecutor Bill Mason.  Brian McGraw, a former county prosecutor and one of the top defense attorneys in town, wrote a thoughtful comment agreeing with my criticisms of the PD's story, while also noting the lack of profundity in my observations, but also pointing out the real problems with how the prosecutor's office has run during Mason's tenure.

So yesterday I had a meeting with a prosecutor.  The lobby of the office is adorned with the picture of every Cuyahoga County prosecutor who has served since Ohio became a State in 1803, with their dates of service, and (a) having to wait a few minutes and (b) being an anal retentive, I spent the time every one of the pictures. 

Apparently, for a long time the term was a year; nobody served longer than that for about thirty years after the Civil War.  Even when it was lengthened to four years in the early 20th century, almost everyone served but a single term.  And then, of course, you run into the legendary John T. Corrigan.  He was the County Prosecutor when I started practicing in 1975, and he'd been at it by that time for longer than I'd been alive; he began in 1947.  He tried the Sam Sheppard case the second time, and finally retired in 1990.

And I learned something that even the prosecutor I saw that afternoon -- who'd been there almost thirty years -- didn't know:  Bill Mason has served as Cuyahoga County Prosecutor for longer than anyone in county history, other than Corrigan.

Jeez, throw the guy a party or something.

See you next week.


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