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What's Up in the 8th

While decisions of the U.S. 6th Circuit Court of Appeals, even on issues of federal constitutional law, aren't binding on Ohio courts, one of them, the 2005 decision in Valentine v. Konteh, has had a profound impact on the way child rape cases are prosecuted in Ohio.  That might be coming to an end after the 8th District's decision last week in State v. Schwarzman.

Valentine's conviction on 20 counts of rape and 20 of felonious sexual penetration resulted from the child victim's describing a typical act of abuse, and testifying that it happened "15 or 20 times."  The 6th Circuit tossed all but one conviction of each, finding that the failure to identify specific incidents raised a double jeopardy problem:  if the state were to bring additional charges for the same period, there'd be no way to tell if they were the incidents the jury had already convicted Valentine for.

Valentine first showed up in a significant 8th District decision the following year, in State v. Yaacov (discussed here).  The court affirmed Yaacov's conviction of 122 counts of rape, gross sexual imposition, and sexual battery (good news/bad news joke:  he was acquitted of two counts), distinguishing Valentine by noting that the testimony of Yaacov's victim was sufficiently specific to distinguish particular incidents. 

The court came to the opposite result, in a big way, the following year in State v. Ogle (discussed here, following my screed on the dysfunctionality of the county court system).  Ogle had been charged under the same "copycat indictment," and had been convicted of three counts and acquitted of thirteen, with the jury hanging on one.  The court reversed for trial error, but determined that Ogle couldn't be retried, because there was no way you could determine whether he was being retried on one of the acts the jury had acquitted him on.  The year after that, the 8th affirmed the judge's pre-trial dismissal of all but one count of each of three charges of rape, gross sexual imposition, and sexual battery, for lack of specificity.

While the court had built on Valentine in previous cases, that comes to an abrupt end in Schwarzman.  After noting that Valentine has no precedential value, the court dismisses it in a single sentence, noting that "It has been criticized for applying law that does not apply to Ohio grand juries, misapplying and misrepresenting case authority, and being distinguished in every subsequent Sixth Circuit decision that cites it on this issue."  Other than that, it's pretty solid, right?

But while that may be the death knell for Valentine, the decision's served its purpose.  For the past several years, every multiple-count indictment I've seen out of this county on a sex offense contains some specificity in each charge:  this particular incident involved anal sex, or grinding, or touching a specific part of the body.  And if you don't get that in the indictment, you surely will in the bill of particulars. 

In fact, all that Valentine bars is exactly what happened in that case:  a multiple-count conviction based on someone saying this happened X number of times.  Ogle definitely represented the high-water mark for Valentine; since then, courts have been quite willing to affirm convictions so long as there's anything -- the indictment, the bill of particulars, even trial testimony -- which provides some method of distinguishing incidents.

The question is whether prosecutors will use Schwarzman as a signal to go back to its old ways.  I really don't see that happening, either.  Schwarzman's case presented that issue to the court in the worst possible way:  he hadn't raised any objection to the indictment prior to trial, and so the court was reviewing for plain error.  While Valentine doesn't have any precedential value, earlier cases like Ogle do.  Most significantly, what the court said about Valentine was dicta; it distinguished Valentine "because the victim's testimony in this case differentiated the acts of sexual molestation." 

Still, a defense lawyer has to be proactive.  There'll be a tendency among prosecutors to believe that the new open discovery rules fulfill their obligations on this:  they give you all the evidence, and let you figure out what the specific incidents are.  There are a number of problems with this approach, not the least of which is that statements of child sex victims are not discoverable, at least at the point where they'd do the defendant any good.  And the purpose of discovery is not to let the defendant know what information the state has, but what it intends to prove. 

So file your motions for a more specific bill of particulars, raise the issue well before trial.  In addition to the double jeopardy concerns expressed in Valentine, there's a notice issue, too:  your ability to defend against the allegations in a particular incident is substantially lessened if you're finding out about them for the first time during the victim's testimony at trial.

But trust me, you're not going to miss Valentine.  


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