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A new look at pre-indictment delay

Just over a month ago, I wrote a post about the spate of "cold" rape cases, complaining about how difficult it is to get a case dismissed for pre-indictment delay.  After the 8th District's decision in State v. Mack, it got a whole lot easier.

In June of 2013, Mack was charged with raping a woman almost 20 years earlier.  Mack was 16 at the time, and the woman was 27.  They knew each other; in fact, the woman and Mack's mother were neighbors and friends.  The woman reported the crime immediately, identifying Mack as the rapist, but apparently the case went "cold" because she refused to cooperate.  In early 2013, the BCI matched Mack's DNA to the hospital specimen contained in the rape kit that was performed the night of the incident.

As I'd explained in the earlier post, pre-indictment delay involves a two-step analysis.  First, the defendant has to prove "actual" prejudice; if he does, then the focus shifts to the reasons for the delay, which are balanced against the prejudice.  The first step is the tough one:  the courts have consistently held that speculative prejudice - the passage of time results in diminished memory, witnesses might have been lost - isn't sufficient.

Mack points to two basic items of prejudice:  the whereabouts of three detectives assigned to investigate the case were unknown, and the 911 call made by the victim was no longer available.  The court finds this to be sufficient.  That's significant, because there are a number of court decisions which hold that a defendant must not only show that witnesses are no longer available, he has to show that their testimony would definitely be exculpatory.  The court proceeds to the reason for the delay, and concludes that

the delay may be found unjustifiable when the state effectively ceases the active investigation of a case, but later decides to commence prosecution upon the same evidence that was available to it at the time that its active investigation ceased.

Mack isn't long on analysis - the opinion's only six pages long, and application of the law to the facts takes two short paragraphs - and there are some quibbles you can raise with it.  But this is one of those times when the court gets the big picture right.  Several factors were key to the decision:

Mack had a defense.  In a lot of the cold cases, the DNA evidence is damning:  there was no relationship between the two parties, and the defendant is left to explain how his semen came to be found inside the victim.  That wasn't the situation here.  Especially noteworthy is the fact that Mack alleged the two had consensual sex on several occasions; when pressed on this by the judge, the prosecutor refused to confirm or deny it on the basis of the rape shield statute.  That's not going anywhere at trial; there's plenty of case law holding that the rape shield statute can't be used if it would deny the defendant the right to present a defense.  (Check this post and this one.)  Barring the defendant from using the only defense available to him would seem to run afoul of that.

And it's a lot easier to find "actual prejudice" when there's an actual defense.  The 911 call and the testimony of the detectives regarding their investigation would certainly have been relevant in determining whether the woman's demeanor was consistent with a rape.  Again, we may not know what the witnesses might have said, but we do know that whatever they said would be relevant.  The whole purpose of a criminal trial is to decide the facts, based on the relevant evidence.  When key relevant evidence is missing, the accuracy of the result of that trial is brought into question.

Mack's identity was known.  Although this is cited both under the prejudice and the delay analysis, it belongs under the latter.  Again, in many cases the defendant's identity isn't revealed until the DNA evidence comes back.  That's not true here:  the DNA evidence gave the State nothing more than it had all along.

It's hard to overstate the significance of Mack.  Not only do we have a more reasonable interpretation of the "actual prejudice" prong, but also the rejection of the alleged victim's refusal to cooperate as a legitimate reason for delay.  And we also have this from the opinion:  "length of delay is normally the key factor in determining whether a delay is justifiable."

Most importantly, we have the right result.  The trial judge in this case, a former prosecutor hardly known as a coddler of criminals, dismissed the indictment against Mack, finding it "very alarming" and "absolutely outrageous."  And it was.  It's one thing to use DNA evidence to bring a criminal, who's previously escaped detection, to justice.  That's not what happened here.  The State's sloth in not doing more in the initial investigation, and letting a rape kit sit around untested for nearly 20 years, put Mack in an extremely difficult position in defending the case, and an unfair one.  The decision in Mack goes a long way to redressing the unfairness to similarly-situated defendants.

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