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Copy that

They're quite common in child molestation cases:  an indictment which contains, say, nineteen counts of rape, each count worded identically, and each giving the date of offense as "8/1/2006 to 9/1/2008."  It's what's known as a "carbon copy" or "copy-cat" indictment.  There's an obvious problem with that from a defense perspective:  how can you prepare for a trial in which your client essentially stands accused of committing an offense nineteen times sometime during a period of 731 days?  There's also a problem from a purely legal perspective:  if a jury hangs or acquits on certain counts, and convicts on others, how do you tell which counts they did what on?

Yesterday, in State v. Freeman, the Supreme Court heard oral argument in an attempt to sort through all that.

As I mentioned in my post on Monday, this is not a novel issue.  Much of it goes back the 6th Circuit case of Valentine v. Konteh in 2005.  It's more fully discussed in this post I did five years ago, but the gist is that one of the reasons for requiring specificity in an indictment is so that everybody can know exactly what the defendant's been convicted of for double jeopardy purposes if he's subsequently charged with more such offenses over the same time period.  The problems with that manifested themselves in State v. Ogle, discussed here.  Ogle had been convicted of two counts of gross sexual imposition and one of kidnapping; the jury acquitted him of eight counts of GSI, two of kidnapping, and two of rape, and hung on another rape count.  The 8th District reversed the convictions because of trial error, but instead of remanding the case for another trial, Ogle got a get out of jail free card.  Why?  Because since there was no attempt by the prosecution to differentiate the counts, there was no way of telling what the jury had acquitted Ogle on; since the evidence was just one big pile of mush, in a retrial, he could be convicted of acts for which the previous jury had acquitted him.

Ogle stands out as the high water mark for defendants in this area; subsequent decisions have held that if the prosecution differentiates the counts through a bill of particulars, or even if the evidence at trial allows a determination of what acts applied to which counts, that's sufficient.  And so we come to Charles Freeman, who was convicted of 19 counts of rape of a child under 10 -- the two daughters of his girlfriend -- in 2009.  Last year the 8th District affirmed his convictions on 12 of the counts, finding that the evidence was insufficient to prove the other seven.  How it came to that conclusion is not apparent; the opinion makes no attempt to explain its decision in that regard. 

That wasn't uppermost in the minds of the justices yesterday, either; nobody mentioned it.  In fact, most of the attention was focused on another aspect of indictments:  the due process concern that they provide adequate notice of what a defendant is charged with so as to be abel to defend the case.

Freeman's attorney didn't get a lot of love on that score.  O'Connor pointed out that in these types of cases, the prosecutor can hardly be expected to say that "it happened on October 1 at 9:45 in the morning, in the hallway between the two bedrooms, you're not asking for that, are you?"  McGhee Brown asked what was the "gotcha" evidence the defense was looking for.  That pointed to a major problem with Freeman's case:  in an interview with the police shortly after the events came to light, he admitted at least five acts which constituted rape.  He'd been given the mandatory sentence of life imprisonment without parole on each of the rapes, run consecutively -- like that mattered -- and even if the court were to accept the defense's suggestion that, given the duplication in the counts and following Valentine, he could only be convicted of one, it wouldn't mean anything to Freeman.

In fact, it became apparent that the court hoped that the whole thing would simply go away; barely three minutes into the argument, Pfeifer asked if the new rules on open discovery would solve the whole problem.  That's certainly a tantalizing prospect:  the prosecution simply gives all the reports and statements to the defense and says, "Here, you figure it out."  There are two problems with that suggestion, though.  One was that suggested by Freeman's attorney:  there's a difference between having all the evidence and knowing what the State intends to try to prove, what it's theory of the case is.  That really wasn't provided in Freeman's case until closing argument, when the prosecutor put up a chart indicating exactly what evidence they linked to each count of the indictment.

The other problem, which wasn't commented on by anyone, is that there's a huge hole in Rule 16 when it comes to exactly these types of cases:  if the case involves a victim of a sexually oriented offense less than 13 years old, the victim's statement need not be provided until the commencement of trial.  That didn't help Freeman in any event:  his trial was conducted under the old discovery rules, and he was not provided with the police reports, let alone the statements of the victims.

If anything could help Freeman, it would be the prosecutor's cavalier treatment of his case at trial.  The defense asked for a bill of particulars, then asked for a more specific one, which request the trial ignored.  The original response, as both Cupp and O'Connor noted, was simply a restatement of the wording of the counts in the indictment, which is pretty much standard practice here, usually with the inclusion of a specific date and maybe a location; none of the latter was provided in Freeman's case.  Even O'Connor, who had given little quarter during defense counsel's argument, was moved to inquire, "out of curiosity, with regard to your office's policy on a bill of particulars.  Do you just copy the indictment, put a different heading on it, and file it? . . . How is that a proper response?"  And the lingering suspicion that the court holds this county's prosecutor's office in somewhat less than the highest regard was reinforced by Pfeifer's comment about "the frustration that we have. . . with your office.  It's been hide the thimble and ignore the rules, again and again and again."

That's not going to be enough, though.  In fact, I wouldn't be surprised to see the case get dismissed as improvidently granted.  Pfeifer's suggestion that all this could be cured by Rule 16 provides one basis for doing so, and O'Connor quizzed defense counsel on the idea that the current rules on bills of particulars, if properly enforced, could cure the problem, and asked if the defense wasn't simply requesting "error correction."  As anybody who's listened to Supreme Court arguments knows, that's pretty much the death knell for any appeal:  the court's purpose, justices will say over and over, is to pronounce broad rules of law, not correct lower court errors.  I'm guessing the court will conclude that there's no broad rule of law to announce here, and that will be that.  And if there is a broad rule of law issued, you can bet it's not going to do Charles Freeman any good.

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