Another look at Bistricky
The first thing defense counsel could have said during the oral argument before the Supreme Court yesterday in In re M.M. was, "There's no reason for me to be here." In terms of representing his client, that would have been true. M.M. had gone to trial in juvenile court on charges of sexually abusing four children. The trial judge decided statements made by the victims to relatives and a social worker weren't admissible under EvidR 807 and 803(4), and granted a motion in limine excluding them. The criminal and juvenile rules give the State the right to an interlocutory appeal of a ruling suppressing or excluding evidence, but instead the State chose to see how far they could get with the child witnesses, and maybe get the judge to change her mind on admitting the evidence. No luck; the judge stuck with her decision to exclude the evidence, and when the kids couldn't testify as to who did what or when, she tossed the case at the close of the State's evidence.
At which point the State went with Plan B, which was to appeal it anyway, under R.C. 2945.67. That statute grants the State the right appeal a decision suppressing evidence (it's the statutory counterpart to the rule), but also gives the State the ability to seek leave to appeal any other decision of the trial court in a criminal case except the final verdict. The 8th District denied leave, finding that the State should have gone the interlocutory appeal route. The case landed in the Supreme Court, and both sides showed up to argue it. Only one, the prosecutor, had any skin in the game; M.M. had been acquitted, and regardless of what any court did, that wasn't going to change.
There are all kinds of problems with the State's argument, besides the obvious "two bites of the apple" approach. First, there's the statutory problem. The statute says that the State can appeal a decision suppressing evidence as a matter of right, and can also appeal any other decision with leave of the appellate court; "other" arguably means that leave to appeal can be sought only where the issue doesn't involve exclusion of evidence. Second, there's a constitutional problem: the constitutional provision granting jurisdiction to the appellate courts -- Article IV, Section 3(B)(2), if you're keeping score at home -- provides that appellate courts have jurisdiction only to "review and affirm, modify, or reverse" a judgment. Here, M.M.'s acquittal meant that there was nothing for the appellate court to do: the judgment of the lower court would be unaffected by its decision.
Now, if the words "advisory opinion" have flitted across your consciousness during this discussion, go to the head of the class. You may remember from constitutional law the requirement that there must be an actual "case or controversy" to trigger a court's jurisdiction.
There's one notable exception to that rule: cases which present issues of law that are "capable of repetition, yet evading review." The classic case for that was abortion: because the gestational period for human pregnancy, especially the time during which an abortion is practical, is too short for legal action to be completed, if the courts hewed to the case or controversy requirement, they could never rule on the abortion issue. That's what the prosecutor in M.M. hung his hat on, relying on previous cases, like the Supreme Court's 1990 decision in State v. Bistricky, which held that the statute authorized appeals in cases involving trial court's evidentiary rulings, even where the defendant had been acquitted, because those issues were "capable of repetition, yet evading review."
But there are a couple of problems with that analysis as well. The concept of "capable of repetition yet evading review" contemplates a situation where the issue can never be resolved unless the case or controversy requirement is relaxed. That's not the situation here; evidentiary issues are addressed all the time, it's just that they're customarily addressed in the context of an appeal brought by a defendant, arguing that his conviction should be overturned because of an adverse ruling by the trial court. That's amply demonstrated by the argument here, which was the proper interpretation of EvidR 807. Not two weeks ago the very same issue was discussed by the court in another case from the 8th District, State v. Clark, in which the defendant's conviction was reversed because the trial court had impermissibly allowed Crawford and 807 evidence. (Discussion of oral argument here.) What makes the State's claim that the appeal should have been allowed in M.M. to address that issue particularly disingenuous was that the State didn't choose to appeal that question in Clark, confining itself only to the Crawford issue.
And that brings us to the real problem with the State's argument. Evidentiary issues are extremely important: more than half the reversals of convictions by appellate courts are due to some trial court error in admitting or excluding evidence. The central concept of our judicial system, especially the appellate structure, is that such decisions should be made through the adversarial process. It's like Scalia's argument in Crawford: the 6th Amendment's Confrontation Clause isn't a guarantee that evidence will be reliable, it's a guarantee that reliability will be determined in a particular fashion: through cross-examination. Similarly, we assume that appellate decisions will be based on the court's consideration of the arguments of both parties, advocating opposite positions.
Yet the State's position would allow these decisions, which would impact thousands of future cases, to be made without any input from a defendant. The best example of this is Bistricky itself. After a judge dismissed drug charges against several Cleveland police officers, the State pursued an appeal to the Supreme Court, arguing that the judge had based the acquittal on his incorrect interpretation of a statute. If you check the decision, you'll find that no one appeared for the defendants. The defendant's lawyers wrote a letter to the court, politely indicating that their client's acquittal meant they would no longer be participating in the case.What comes of this is tough to predict: before defense counsel had even gotten out his name in introduction yesterday, Lanzinger asked him if the case should be dismissed as improvidently allowed. O'Donnell honed in a seeming contradiction in the argument: wasn't the defense asking for an advisory opinion that the court shouldn't give advisory opinions? Still, a dismissal is the best the State can hope for. And there's a good chance that the days of Bistricky, and of the possibility that the court will decide a major issue of evidentiary law with the defendant being represented by an empty chair, are over.