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The missing witness

There are cold cases, and then there are frigid cases.  Back when the Cleveland police finally discovered Anthony Sowell's House of Horrors - over a period of several years, he kidnapped, raped, and killed eleven women, hiding their bodies in his house and yard - they also discovered that there were about three thousand rape kits sitting in their evidence room which had never been submitted to BCI for testing.  Many were nearing two decades old, so the rush was on to test them before the statute of limitations expired.

The 8th District made those cases a lot easier to prove in their decision last week in State v. Bowleg.  

On March 31, 1993, L.J. (that's how she's referred to in the opinion) reported to the police that she'd been raped by three males in the early morning while she'd been at a friend's house.  EMS, accompanied by a police officer, took her to a hospital, where the doctor took a statement:

45 y/o F brought in stating that she has been raped. She alleges assault by three men. She states there was vaginal penetration and she believe[s] ejaculation by all three assailants. She denies any rectal or oral penetration. She states that they did not use condoms. She denies any injury or other assaults.

A physical exam showed no marks, bruises, or any other indication of trauma, and testing showed that L.J. had a blood-alcohol content of .145.  The nurses' notes indicated, "Pt. states she was not wearing underwear or pantyhose at the time of the assault. * * * States attacked by 3 people.  Denies injury. * * * Pt. talking freely about assault."

L.J. died in 2008.  Her rape kit was submitted to BCI after that, and produced a CODIS hit on Bowleg and another man, Ray.  (Their cases were consolidated for appeal.)  Two days before the statute ran, the two were indicted for rape.  Before trial, both filed a motion in limine, seeking to exclude the medical records.  The trial court granted the motion after a hearing, so everybody trotted across the street to the court of appeals. 

The question was whether L.J.'s statements were testimonial and thus barred by Crawford v. Washington.  In resolving this issue, the panel considers only two cases:  the Ohio Supreme Court decisions in State v. Stahl and State v. Muttart. Both involved statements by a rape victim to a doctor or nurse, and in both the court found no Crawford violation occurred.  So guess how Bowleg turns out?

That's probably the right result.  The key here is the historical underpinnings, at least in Scalia's view, of the concept of a testimonial statement:  a statement given to the King's agents, and which would be used against the defendant at trial.  Of course, there's the problem of translating what the "King's agents" were in the 17th century to what modern law enforcement is, and the definition of "agent" becomes blurred; last year, the 8th District held that teachers were "government agents" when they reported child abuse, because they had a mandatory duty to do so.  Still, "agent" doesn't mean "anybody."  As the court noted in Muttart, statements made to nurses and doctors while seeking treatment "are not even remotely related to the evils that the Confrontation Clause was designed to avoid."

Still, Bowleg is troubling.  In 1993, the penalty for rape was indeterminate:  you had a bottom range of between 5 and 10 years, and a "tail" of 25.  Back then, what happened is that your parole eligibility was determined by the bottom range; you'd do about seven years on a ten-year sentence, and then be paroled. 

That's so fifteen minutes ago.  When Ohio went to determinate sentences in 1996, the Parole Board got a lot tougher.  A public defender told me the other day that one of their clients was just released from prison on a rape case.  He'd been convicted in 1989, and served every day of the twenty-five years.  He was 64 years old, and had spent the last ten years wearing a colostomy bag.  Hey, when's the last time you read the headline, "Rapist paroled"? 

So Bowleg and Ray are looking at doing 25 years on the sole word of somebody who's never going to take the stand to be cross-examined.  Given the lack of detail in the statement, and that the alleged victim's claim is undercut by her intoxication and the lack of any physical corroboration, it may be that a jury will be hard-pressed to find the state proved guilt beyond a reasonable doubt.  Still, in a system which considers cross-examination "the greatest engine for the discovery of truth ever invented," sending a man to prison for what might be the rest of his life -- Bowleg is 49 -- without giving him the opportunity of cross-examining his accuser does seem to be one of "the evils that the Confrontation Clause was designed to avoid."

That's not to say that it's coming in.  A judge has a great deal of discretion in the admission of evidence, especially with regard to the evaluation of whether its probative value outweighs its prejudicial effect.  The judge in trial could easily conclude that it does here, and keep the evidence out.  Whether that's the correct interpretation doesn't really matter.  The state could appeal the judge's pretrial ruling, but it can't appeal a ruling he makes at trial.

Stay tuned.

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