Ignoring a mandate
The one indisputable thing I learned watching the oral
argument before the Supreme Court in State
v. Dzelajlija was that only the defense counsel had mastered the
pronunciation of the defendant's name.
After Chief Justice O'Connor announced the case and, in doing so,
pronounced Dzelajlija's name as if it were the third line on an eye chart, the
prosecutor hastily proclaimed that he would use only "defendant" as a reference
point. The defense attorney, in his
presentation, was perfectly willing to sail into uncharted waters, smoothly
dropping Dzelajlija's name where appropriate, as easily as if it had been Smith
or Jones. (Ju-LYE-ja.)
Unfortunately, that's about the only thing that went well
for the defense.
First, the backstory, which verges on the Byzantine. Dzelajlija was convicted of robbery back in
2006, but in State
v. Dzelajlija I the 8th District reversed because of evidentiary
errors. Dzelajlija was tried again, and
his luck proved no better the second time around. His fortunes took a decided turn for the
better by the time of his appeal from that conviction: in the interim, the Supreme Court had held in
State v. Colon that the failure of an
indictment to specify a mens rea element
resulted in the indictment being defective.
In State
v. Dzelajlija II, the 8th District found a Colon problem in his indictment and accordingly vacated his
convictions and remanded the case.
So the case goes back to the trial court, and either the
State amends the indictment or issues a new one, and Dzelajlija gets another
trial, right? Well, no, because what the
Supreme Court giveth, the Supreme Court taketh away: just a few weeks before Dzelajlija's retrial,
the Supreme Court handed down State v.
Horner, reversing Colon and holding
that an indictment which tracked the language of the statute was sufficient. Another appeal ensued, with the 8th District
first holding that the trial court was right to apply Horner, and then on reconsideration deciding that it wasn't, and that
it should have instead followed the 8th's mandate to vacate the
convictions. So everybody got together
in the Supreme Court about six weeks ago to hash it out. The legal issue was when a lower court can ignore
the mandate of a superior court. The
practical issue was whether the trial court should have blown off the Supreme
Court's decision in Horner and done
what the 8th District had told him to. How do you think that went?
About the way you'd expect it to. You can't always tell how a justice is going
to rule based upon her questions, but O'Connor did everything but hold up a
sign saying "You Lose" during defense counsel's argument. Lanzinger and O'Donnell seemed similarly
inclined, although the latter was more circumspect.
Not that the defense was left with nothing to argue. Kennedy seized on the issue of timing: the decision reversing Dzelajlija's case for
the Colon error was handed down on
March 12, 2009. His retrial wasn't
scheduled to begin until September 14, 2010, eighteen months later. The Supreme Court decided Horner just three weeks before the
scheduled retrial. Did the state
intentionally drag its feet on the retrial, in anticipation of Horner coming down? The prosecutor assured the justices that the
delay was not the product of strategic design, but simply because the case was
lost in the labryinthian corridors of the Cuyahoga common pleas court. (To this explanation I can readily
attest: I once had a case I got reversed
on appeal and remanded, whereupon it sat for over a year, until the judge
recused himself and fobbed it onto one of his cohorts, where it took another
year to come to trial.)
The prosecutor's explanation seemed to satisfy, an any lingering
concern the justices had with the delay visibly dissipated when the prosecutor
told them that one of the reasons nobody made retrial a priority was that
Dzelajlija was serving a ten-year sentence in another case. That triggered
the application of the Bad Man Doctrine, the unspoken theory of appellate
practice that a reviewing court will ignore most of the procedural infirmities
in a case as long as they can be relatively certain that the defendant is a bad
guy.
Left completely unaddressed in the argument is the present
status of the case. When the 8th
District initially held in Dzelajlija III
that the trial court correctly applied Horner
on the remand from the earlier appeal (only to decide on reconsideration
that it had been incorrect in doing
so), the court nonetheless reversed because in the earlier appeal Dzelajlija
had raised a manifest weight argument, which the panel had mooted when it
reversed on the Colon issue.
But that earlier appeal had been heard by a different panel
than the one in Dzelajlija III, and a
few weeks after the latter decision, the earlier panel declined the State's
request to reopen that appeal so as to rule on the manifest weight claim. So here's Dzelajlija's status, regardless of
whether the Supreme Court reverses and holds that the trial court should have
applied Horner: before any retrial, somebody has to rule on
whether his conviction was against the manifest weight of the evidence, and
nobody has any idea of how that can be addressed, or who will address it.
Dzelajlija should be getting out of prison on his other case
sometime in late 2017. Maybe they'll
have it figured out by then.
Comments