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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.

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