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Getting rid of Bistricky

Thumbnail image for brelo.pngMichael Brelo's journey began with him being one of the hundred or so police officers chasing Timothy Russell's car through the streets of Cleveland, a chase that culminated with officers firing 137 shots at Russell's car after it was cornered in an elementary school parking lot.  Russell and his passenger, Malissa Williams, were shot a combined 47 times, more, allegedly, than Bonnie and Clyde had been when they met their demise.

Brelo's journey ended on May 23 in the common pleas courtroom of Judge John O'Donnell.  Brelo had been charged with voluntary manslaughter and various other crimes for his part in the shootout; he'd jumped on the hood of Russell's Malibu and fired 15 shots into the car.  The defense chose to try the case to the judge, and after a four-week trial, O'Donnell acquitted Brelo of all charges.

Well, it turns out that Brelo's journey isn't quite over.  County Prosecutor Tim McGinty wants the 8th District Court of Appeals to take a look at the case.

That's right, he's appealing an acquittal.

The basis for McGinty's appeal is O'Donnell's determination of causation.  Essentially, O'Donnell found Russell and Williams had been struck by several shots which would have proved fatal, and that while Brelo fired at least one of them into each body, there was no way to tell if his shots were the ones that actually killed the pair.  That's a legal result which could be happily embraced by the defense bar:  if I'm representing one of four gangbangers who waxed a guy in a drive-by, my job's a lot easier if the State has to prove that it was my client's shot which was the one that caused the victim's demise. 

That aside, McGinty's decision is troubling for several reasons.  This case did not occur in a vacuum.  Brelo is white, Russell and Williams were black, and it turned out that both were unarmed.  (The chase was prompted by what police officers thought was a gunshot fired from the car, which was most likely the car backfiring.)  White cops shooting unarmed black people isn't exactly an uncommon occurrence, and the pattern of excessive use of force by police here in Cleveland has been particularly troubling.  The Justice Department skewered the police department in a report a year ago, and the DOJ and the City entered into a consent decree on police reforms just a week after the Brelo verdict.

In this light, there's an argument to be made that McGinty is pouring gasoline onto a fire.  The black community was not happy with the verdict, and they're going to be more unhappy if the 8th District denies leave to appeal, which they can do.  If the court decides to accept the appeal, either outcome in that event doesn't bode well: a reversal will simply reinforce the black community's belief that Brelo got away with something, and an affirmance will do nothing to dispel that suspicion.  It's perhaps understandable that McGinty wants to correct the flaws he sees in O'Donnell's opinion, but that opinion has no precedential value whatsoever.  The cost seems to outweigh the benefit.

More troubling is the fact that McGinty can do this.  The Ohio Constitution grants appellate courts the jurisdiction to "affirm, modify, or reverse" a judgment.  An opinion by the 8th in McGinty's appeal would do none of those things; everybody agrees that the Double Jeopardy Clause would prohibit Brelo's retrial even if the appellate court found that the verdict was egregiously wrong.

So how does McGinty get into the appellate court?  RC 2945.67 allows the State to seek leave to appeal "any other decision, except the final verdict, of the trial court in a criminal case."  Back in 1990, the Supreme Court held in State v. Bistricky that this gave the State the right to seek leave to appeal substantive legal questions, even where there'd been an acquittal, if the legal question was "capable of repetition yet evading review."

How did the court get around the constitutional problem?  By ignoring it; the constitutional grant of jurisdiction is never mentioned.

What's more, the "capable of repetition yet evading review" language is a concept of mootness, not jurisdiction.  The classic example is the abortion decisions:  because the gestational period for human pregnancy, especially the time during which an abortion is practical, is too short for legal action to be completed, if the courts hewed to the case or controversy requirement, they could never rule on the abortion issue.  But again, that has nothing to do with jurisdiction.

And take another look at that "evading review."  Again, this applies in the abortion situation; people will keep getting pregnant.  But how does the issue of causation "evade" review?  It's decided all the time in appeals by defendants.  In fact, there's no little irony to McGinty claiming that he has to appeal O'Donnell's decision because it's wrong about causation, and then spending six pages of his brief pointing to all the appellate cases which, he claims, show that O'Donnell was wrong about causation.

There's another issue here, too.  While Brelo might file a response asking the court to deny leave to appeal, if the appeal is granted, expect him to bow out.  Since his acquittal will not be affected by any appellate decision, he no longer has any skin in the game.  If you look at the list of attorneys in Bistricky, you'll see a number of names.  What you won't see is the name of anybody who was representing Bistricky.

And that's the final problem here.  It's not just a question of what the constitution provides.  Our entire concept of justice is based on the adversary system, the belief that the best way of achieving a correct result is by having two parties argue the opposing contentions.  If the court's going to take the appeal, that's not going to happen here.

The Supreme Court had a chance to reverse Bistricky a few years ago in In re M.M., but backed off.  Maybe this case, or another one, will provide the opportunity to do it.  There's no legal or logical basis for Bistricky.

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