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. White. State 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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