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Coming soon to a courtroom near you

A couple weeks back, I did a post about a brewing controversy here in the lovely environs of Cleveland:  a county prosecutor had subpoenaed all the records of a defense investigator, including "a certified copy of all interviews, reports and notes taken in regards to the above matter."  That seemed to toss concepts of attorney-client privilege and work product into the wood chipper, I suggested, to say nothing about being far in excess of anything allowed under the discovery rules.  The defense filed a motion to quash, the investigator hired an attorney, and the morning my post appeared I got a call from someone in the prosecutor's office.  A day later, the subpoena was withdrawn, and the whole thing went away.

I couldn't resist using the situation to take a shot at Bill Mason's shop, noting that "the 8th District and. . . the Supreme Court have been increasingly critical of the prosecutor's office here, and if they get wind of this, it's not going to make things any better."  There's some truth to the criticism.  One of my all-time favorite oral arguments was in State v. Davis, involving the issue of spousal privilege, which no one -- not the prosecutor, the defense attorney, nor the judge -- had thought to raise until the 8th District did so sua sponte.  When time came for oral argument in the Supreme Court, the gang in the appellate division decided it was a good idea to bring along the prosecutor who'd tried the case, only to have him sit there and listen to Pfeifer rant about how this was "another case out of Cuyahoga County where the rules of evidence are as plain as a barn door and it's just ignored by the prosecutor.  How much incompetence do we have to continue to tolerate?"

Be that as it may, there's certainly one thing that this prosecutor's office does a very good job of:  getting the Supreme Court to take cases.  A couple of weeks back, the Supreme Court accepted five criminal cases, all by 4-3 votes.  Three of them were from Cuyahoga County.  Let's take a look.

One case, State v. Lindstrom, involves a matter of statutory interpretation in a decidedly bizarre factual situation.  In January 2010, Matt Lindstrom's sister complained to the police that he'd repeatedly raped her for four years beginning in August 1999.  On October 21, 2010, just six days shy of Lindstrom's 21st birthday, a complaint against him was filed in the juvenile court.  Why in juvenile court?  Because Lindstrom would've been a juvenile when the offenses were committed, and the statute allows a juvenile court jurisdiction over someone who committed a crime while a juvenile but who is "taken into custody or apprehended" before his 21st birthday.  The State subsequently had Lindstrom indicted, and filed a motion to dismiss the juvenile court case, which that court did.  Not so fast, said Lindstrom:  he wanted the case to go back to juvenile court, probably because he'd rather have his fate decided in the opulence of the court's brand new $189 million facility, pictured at right.  (An appealing alternative to the Justice Center, where I've spent many a moment holed up in one of the chairless and deskless "conference rooms," explaining the intricacies of the law to my client while he stared at the carpet, counting the cigarette burns.)  The common pleas court agreed and dismissed the case, holding that Lindstrom was "apprehended" when he was served with the summons for the juvenile court, and thus that court had jurisdiction.  The 8th affirmed, and the Supreme Court will spend its time figuring out exactly what "apprehended" means.

Two other cases present issues of more significance, and almost identical fact patterns:  child rape prosecutions in which the question was the admissibility of statements the alleged victims made to others.  In In re M.M., the judge had granted a defense motion in limine regarding statements to a social worker and to relatives.  The State could have appealed it under JuvR 22(F), the counterpart to CrimR 12(J), which allows an interlocutory appeal where the granting of a motion to suppress or in limine has essentially eliminated "any reasonable possibility of effective prosecution."  There are some risks in that procedure, though:  if the State appeals and loses, it cannot proceed with the prosection unless additional evidence has been discovered.  In M.M., the State figured that it still had the testimony of the children, and went with that.  That decision came a cropper when none of the children could testify as to what happened or who did it, probably because of their ages and the fact that two years had elapsed since the crimes were supposedly committed.

Although the defendant was acquitted, the State appealed anyway under RC 2945.67, which permits a discretionary appeal.  Back in 1990, the Supreme Court in State v. Bistricky had held that an appeal under that section could be granted on evidentiary questions, as long as the verdict wasn't appealed, because such appeals would allow consideration of "substantive issues" that are "capable of repetition, yet evading review."  The 8th District dismissed the appeal, holding that the prosecution should have filed for an interlocutory appeal.

The question presented by M.M. to the Supreme Court is whether the prosecution should have both remedies available.  From a logical standpoint, I think the defense will have a tough time here.  This really isn't a situation where the State gets two bites of the apple.  It's not like a prosecutor can sit back and forego an interlocutory appeal, figuring that if he loses he can always file for a discretionary appeal.  He's still motivated to file the interlocutory appeal, because that's the only way he can get the evidence in; it does him no good to file an appeal afterwards and get a ruling that he was right to begin with, if in the meantime the defendant has been acquitted, and the appellate ruling will have no effect on that.

State v. Clark, which I discussed here, involved the application of Crawford v. Washington to statements made by a child about sexual abuse to a detective, two social workers, two teachers, and two relatives.  The 8th District decided that all of them should have been excluded.  Finding that the statements to the detective and the social workers were testimonial wasn't surprising, but excluding the statements to the teachers was a bit trickier:  the court ultimately concluded that those were testimonial as well because the teachers, by virtue of their mandatory duty to report abuse, were acting as government agents.  The 8th also excluded the statements to the relatives; while these weren't testimonial, the court found they weren't admissible under EvidR 807 because the child had been found incompetent to testify.  The court also read 807's requirement of corroboration very narrowly, finding that since the only issue was the identity of the perpetrator, the corroboration had to be as to identity, rather than just that abuse had taken place.

All this would seem to serve as meat for a robust Supreme Court decision, but oddly enough, the State is appealing only a narrow issue:  whether the teacher's statements should be excluded.  Which makes you wonder why the Supreme Court took the case in the first place:  even if they hold that the teacher's statements shouldn't have been excluded, it doesn't change the fact that the case was reversed as to the admission of the other five statements, and a retrial is necessary.  I wouldn't be terribly surprised if this one gets bounced as being improvidently allowed before decision time.  Then again, the court might decide it's one of those issues which is "capable of repetition, yet evading review."


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