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Catching up

Updating some stuff that I've done recently...

Date Rape.  A couple of weeks back, I took a look at the question of the prevalence of false rape charges, noting that the issue is particularly problematic in the case of "date rape."  That became even more problematic with a letter sent out by the U.S. Department of Education's Office of Civil Rights a few months back, to universities which receive any Federal funding.  The letter concerned disciplinary procedures used at the universities for addressing complaints of sexual violence.  Noting that the Supreme Court had applied a preponderance of the evidence standard for civil litigation involving sex discrimination, the letter put universities on notice that, for future disciplinary hearings regarding sexual harassment or violence claims, "in order for a school's grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the eivdence standard (i.e., it is more likely than not that sexual harassment or violence occurred.)" In other words, if the university employs the more common standard of "clear and convincing," it could lose Federal funding.

So you have a kid, let's call him Caleb Warner, who's brought before a disciplinary board at the University of North Dakota, which, using a preponderance of the evidence standard, concludes that he engaged in "violations of criminal or civil laws, sexual assault, and interference," based on allegations of sexual assault.  Now, that's a bit more serious than having been found "guilty" of, say, water-ballooning some guys on the quad.  Warner was banned from the university campus for three years.

That's a little worrisome, you say, but maybe not so much.  It may be that the evidence was so overwhelming that it would have satisfied any standard, even proof beyond a reasonable doubt.  After all, I haven't given any details of the offense.

In fact, I don't know any of the details of the offense.  What I do know is this:  Warner's accuser also reported the allegation to the local police department, and after their investigation, they concluded not only that the case against Warner wasn't any good, but that the alleged victim had lied.  Three months after the university determined that Warner had committed the offense, his accuser was charged with making a false police report.  A warrant was issued for her arrest; to date, she's failed to appear to answer the charges.

Well, that certainly had to benefit Warner, you say.  You just go back in and ask for  a rehearing in light of that development.  That's what Warner did, only to be told that the 5-day time period for filing an appeal had expired.  Besides, the university counsel said, the only new testimony would be the police conclusion that the victim had lied, and this would be "an unproven allegation."

Yeah, we certainly wouldn't want to take any action based on an unproven allegation, would we?

Tell it to the judge -- er, jury.  Coming soon to a courtroom near you:  You've got one of those aggravated shoplifting cases, where your client gets accosted by the security guard while leaving Walmart after having lifted some makeup and a couple of bottles of conditioner.  Instead of meekly submitting, your client shoves the guy aside and bolts for the parking lot.  She doesn't make it, but instead of just looking at a misdemeanor theft, she's indicted for third-degree felony robbery.  No record, but the prosecutor won't budge, and you've got to try the case.

Good news, though:  you caught a break in the arraignment room.  You've got a very practical, results-oriented judge, and a bit defense-friendly, too, and you know he's not going to hang a non-expungeable felony conviction around your client if he can avoid it.  Maybe find your client guilty of attempted robbery -- sure, there's no such thing (robbery includes an attempt), but it's not like the state can appeal.  So in chambers the day of trial, you tell the judge that you're willing to waive a jury.

At which point the prosecutor says, "Well, we're not."

I've talked about HB 86, the new sentencing reform package.  (In fact, I'll have a detailed summary tomorrow of its provisions dealing with drug offenses.)  But the state legislature didn't shoot its wad on criminal law with that bill; presently in hearing before the House Judiciary Committee is HB 265, which amends various sections of the code so as to "authorize prosecuting attorneys to demand a jury trial in a criminal case, notwithstanding a defendant's waiver of trial by jury and over a defendant's objection."

If you're thinking, "Gosh, that's not constitutional," think again.  (And you should probably stop saying "gosh," or people will think that you come to court in a Conestoga wagon.)  The Constitution guarantees you the right to a trial by jury; it doesn't guarantee you the right to a trial by judge.  In fact, in Federal court prosecutors have exactly the ability that HB 265 would give to state prosecutors:  the right to insist that the case be tried to a jury, regardless of what the defendant wants.

But there are some practical ramifications to doing this on a state level.  The Federal District Court for the Northern District here handles 2500 criminal cases a year; the Cuyahoga County Common Pleas court handles 10 times that many.  As indicated by the example above, I think a defense lawyer's decision to recommend a jury waiver is motivated primarily by tactical concerns, but not always:  There are some cases so bad that you just want to get them over with in a hurry.  Usually, that means bad for the prosecution:  if the defendant is going to balk at any reasonable plea deal, he's certainly not going to agree to waive a jury.  But I can easily see a prosecutor's office instituting a policy of not waiving a jury, and the result will be many more jury trials of relatively stupid cases, with the concomitant costs on already-strained county budgets.

And that's what could strangle the bill in its cradle.   Back in March, I told you about HB 77, which was written to overcome State v. Bodyke. Bodyke had held that reclassification under the Adam Walsh Act of previously-convicted sex offenders by the Attorney General violated the separation of powers doctrine, in that it represented an executive officer changing a court decree.  HB 77 proposed to fix that by having courts scour their records for sex offenders convicted before AWA, bring them back to court, and reclassify them.  The cost of doing that was apparently mentioned to somebody, because the bill never made it out of committee.  A few complaints by judges and county commissioners could send HB 265 to the same fate.



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