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What's Up in the 8th

The observation that the wheels of justice grind exceedingly slow is proven out by a pair of 8th District cases last week, State v. Nia and Cleveland v. WhiteState v. Jennings proves it's never too late to make an argument, while State v. Pettito proves that sometimes it is.  And State v. Bement and State v. Young prove that there are some cases judges just don't like.

Back in 2007, the 8th District vacated Nia's sentence for aggravated murder and sent it back for resentencing.  Due to a "serious administrative lapse," that resentencing didn't take place until 68 months later.  Nia claims that this violated his right to due process, but it's difficult to see how:  the judge had sentenced him to 28 years to life, so it's not like Nia would've gotten out in the meantime if he'd been promptly resentenced.

White fares better.  A police officer observed White bite a 10-month-old child in the shoulder in 2008, arrested him, then released him.  A summons for child endangering was sent to White by certified mail a month later, but was returned unclaimed.  Four years later, Whjte was stopped for a traffic violation, and the discovery of the outstanding warrant belatedly launched his prosecution in earnest.  He's convicted, but he 8th District reverses, finding that his lawyer was ineffective for failing to file a motion to dismiss for the speedy trial violation.

Several interesting aspects of the opinion.  It would seem to offer a clear opportunity to dispose of the case on statutory grounds - the time isn't tolled because of the defendant's absence if the city didn't use "due diligence" in serving the summons, which seems to be the case here.  Instead, the court looks only at the constitutional right to speedy trial under Barker v. Wingo, finding the length of delay presumptively prejudicial (as is any delay of more than a year) and the prosecution's reasons for it unavailing.

The second noteworthy aspect is the difference between pre-indictment delay and a violation of the constitutional right to speedy trial.  The former does not implicate the latter; undue pre-indictment delay is a due process violation.  But in order to show that, you have to prove actual prejudice:  that a particular helpful witness disappeared, that relevant records have been destroyed, and the like.  You can't rely on the argument that defending is more difficult because witnesses may have been lost or memories faded.  But you can make exactly that argument to show the prejudice prong under Barker; as the courts have observed in that context, "impairment of one's defense is the most difficult form of speedy trial prejudice to prove because time's erosion of exculpatory evidence and testimony 'can rarely be shown."  Another difference is that under Barker, the reasons for the delay are a factor; for pre-indictment delay, you don't even get to that point unless you can prove actual prejudice.

Jennings was convicted of theft with an elderly spec, and his lawyer contends that the evidence that the victim was over 65 was insufficient.  He doesn't get around to making that contention until oral argument.  The court nonetheless sustains it, finding that that although victim testified she'd owned the home where the theft occurred for 50 years, she never testified as to her age, thereby allowing an inference that she bought the house when she was 14.

Pettito's argument, though, comes too late.  He was sentenced to consecutive 4-year prison terms in April of 2010, but the plea was vacated.  The judge gave him the same sentence in November 2011.  Ten months later, Pettito filed a motion asking the judge to give him concurrent sentences.  In his appeal from the denial of that motion, Pettito makes the argument that the second sentencing took place after HB 86 reinstated the requirement that the judge make certain findings before imposing consecutive sentences, and the judge hadn't done that.  We'll never know whether the judge did:  our old friend Ray Judicata shows up, and Pettito learns to his sorrow that that's an argument he could have, and should have, raised in a direct appeal.

William Bement learns several valuable lessons, one being to stay off the sauce, the other being not to post bad things about judges on his Facebook page when he forgets Lesson #1.  Fresh from his sentencing on a drunk driving case, Bement returned home and decided to celebrate by - what else? - drinking.  He found his Muse in a bottle, but she proved to be on a particularly nihilistic bent, prompting him to write on his Facebook page, "People need to stop shooting up schools and start shooting cops in courthouses" and "Fuck Rocky River Court.  Kill your local judges."  Apparently, he'd proven a little too undiscriminating in "friending people"; one of them contacted the police, and Bement ultimately pled guilty to one count of attempted retaliation.  He claims that his 17-month sentence was "too harsh," but finds no sympathy on the panel. 

Neither does Michael Young.  He's charged with possession of child pornography, with the added wrinkle that when the police searched his house, they found videotapes of his girlfriend's 17-year-old daughter from a camera that had been placed in the bathroom.  That earns him a sentence of 21 years and 11 months.  Again, the argument that this is "too harsh" falls on deaf ears, the court pointing to numerous similarly lengthy sentences that have been handed down in other child porn cases. 

Which is true, of course.  It's also true that in at least two-thirds of the 34 courtrooms in the Justice Center, Young would have walked out with a sentence in single digits.  (And, if not for the videocamera in the bathroom, in about a dozen he would literally walk out -- he'd be given community control sanctions.  Trial is rarely an option in a child porn case, so the outcome turns entirely on sentencing.  And sometimes, you lose a case in the arraignment room.  Whether this is a good thing seems beside the point, because the 8th District has shown virtually no inclination to do anything about it.

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