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What's Up in the 8th

As the man said in The Friends of Eddie Coyle, life is hard, and it's a lot harder if you're stupid.  James Jackson seeks to elevate stupid to an art form.  After releasing Jackson on bond after a plea to having a weapon under disability, child endangering, and theft in three separate cases, the judge warned Jackson that "people who pick up new cases while on bond to me suffer severe penalties."  It took Jackson less than two weeks to accomplish that feat, which resulted in another plea to burglary.

But not to worry.  Why?  Because, as Jackson explained to various people, he'd conned the judge into believing that he had a drug problem so as to gain the judge's mercy.  This explanation, unfortunately, came in numerous calls Jackson made from the jail.  You know, the calls that begin with a voice telling you they're being monitored.  After they were played at the sentencing hearing on all four cases, mercy was nowhere on the judge's agenda; he meted out over seven years in consecutive sentences, and in State v. Jackson, the 8th District tells Jackson there's not a damned thing they're going to do about it.

Kevin Kelly comes within one vote of having his legal travails ended.  In January of 2012, he was charged with various sex crimes pertaining to two boys, one 14 and the other 18, which happened in 1996.  The police report indicated that the younger boy had made a handwritten statement to a Lakewood police officer.  Three different prosecutors rejected three different defense attempts to obtain the statement, indicating that it didn't exist, and just before the boy's testimony, the assistant prosecutor reiterated that the victim "didn't do a written statement."

And then the boy testified on cross that not only had he made a written statement, he'd reviewed it with another assistant prosecutor a year earlier.  At which point, the Lakewood detective at the trial table rummaged through his case file, and voila!  There was the statement, attached to the original police report.  The judge declared a mistrial.

Kelly filed a motion to bar retrial on double jeopardy grounds, citing prosecutorial misconduct.  Everybody on the prosecution's side insisted that this was all simply a mistake.  Well, I'm calling bullshit on that.  It would be one thing if the statement was a sheet of paper lying somewhere in the police file, but again, this was attached to the initial report.

So Kelly walks, right?  Wrong.  Prosecutorial misconduct doesn't bar a retrial unless the misconduct was intended to provoke the defendant into seeking a mistrial because the prosecutor fears the case is "going south."  (That's the exact term used in one of the decisions cited by the majority.)  Here, there wasn't a sufficient showing that the failure to disclose the statement was intended to invite a mistrial, so by a 2-1 vote in State v. Kelly, the denial of the motion to bar retrial is denied.

So not only does Kelly have to go through another trial, he has to pay his lawyers for another trial.  (And, from the roster of attorneys listed as counsel for him in the appeal, his case demonstrates the truth of the observation that the man who said money can't buy happiness never sat in a courtroom.)  Kelly throws in an argument that the State should have to pay his legal fees for the retrial, but the court refused to consider it because it was unsupported by authority, probably because there isn't any.  Maybe if the courts started doing that, there not only would be authority, there'd be fewer mistrials resulting from prosecutorial misconduct.

It's a pretty safe bet that the factual circumstances in State v. Webber won't recur, but it's worth a look because it has some interesting twists.  It's another cold case, with Webber indicted for a rape he allegedly committed in 1993.  First twist:  he was 14 at the time, and the victim was 29.  The second twist is that, at the time, a 14-year-old couldn't be bound over to common pleas court for trial as an adult.  That was changed in 1997, but that can't be applied to Webber because it would violate the Ex Post Facto Clause; there's no dispute that putting to someone to trial as an adult significantly increases the punishment.  That means the juvenile court would have exclusive jurisdiction over him for the rape case, but here comes the third twist:  the juvenile court loses jurisdiction over someone once they reach the age of 21.  Webber can't be tried in common pleas court, and can't be tried in juvenile court, and so he walks.

State v. Chung provides added emphasis to my earlier caution to prison inmates to stop filing those stupid "motions to correct void sentence" because the judge didn't validly impose post-release controls.  Even if he didn't, If you file the motion, the judge will simply bring you back for a hearing to properly impose it, or, if he did it at the sentencing hearing  but didn't do it in the journal entry, just do a nunc pro tunc to the entry. 

Chung presents the latter situation:  the judge did everything right at the sentencing hearing, but the entry only says that PRC is "for the maximum period allowed by law," which doesn't cut it, and it also doesn't mention the consequences of violation.  Had Chung filed his motion while in prison, the judge would've done the nunc pro tunc, and Chung would have had a parole officer play a prominent in his life for the next three years once he got out.

Instead, Chung waits until he's done serving his sentence, then files the motion to terminate PRC.  And that's exactly what the judge has to do, because once the defendant is done serving his sentence, the sentence can't be modified to properly include PRC.

Word. 

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