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Friday Roundup

Law of Unintended Consequences, Chapter 144:  "Religious freedom" laws are the latest effort to staunch the onslaught of the gay rights movement.  When Indiana passed one this spring, criticism erupted over whether those laws allow business owners to refuse service to gays on religious grounds, forcing Indiana to modify its statute.

But maybe not enough of them, it turns out.  The state's sex registration law bans offenders from any church located on the same property as a school.  As this article reports, last week the state ACLU filed a lawsuit - the first under the new law, no less - contending that the ban violated the religious freedoms of two unnamed sex offenders:  they couldn't attend the church they wanted to, because it had a school inside, as do a number of churches.

One of cosponsors the legislation admitted that "clearly nobody had thought through what all the negative ramifications might be for people."  Yeah, I'll bet.

On second thought... oh, sorry, there wasn't a first one.  The year's only half over, and you could make a pretty good argument that Devon Staples has a lock on the annual Darwin AwardAs just about everybody has heard, Staples chose to celebrate July 4th by putting a fireworks mortar on top of his head and igniting it, killing him instantly.  (The news story needlessly informs us that in the run-up to his demise, "Devon Staples and his friends had been drinking.")  His brother, who was standing just a few feet away, insisted against all the available evidence that "Devon was not the kind of person who would do something stupid."

I've observed on occasion that if you have a law named after you, it's likely that you met a very bad end, as Adam Walsh, Megan Kanka, and Jacob Wetterling could attest.  And so it may be with Devon:  his parents have called for more regulation of fireworks, saying that it might have prevented the incident.  Michael Lajoie, a retired fire chief and now a representative in the state house, advocates repealing Maine's fireworks law, which went into effect in 2012 - Staples' was the first death attributed to fireworks since then - but acknowledges, "you can't regulate stupidity."

Speaking of new laws.  The General Assembly has sent a bill to Governor Kasich, which he's expected to sign, which increases the statute of limitations for rape and sexual battery from 20 to 25 years; if DNA is used to identify the rapist after that period has expired, there'd be another five years to being a prosecution.  The measure passed both Houses unanimously.

Actually, that's a step back from what was originally proposed last year:  the complete abolition of the statute of limitations in those cases.  Even the Ohio Prosecuting Attorneys Association, a group not known for its solicitousness toward criminal defendants, expressed misgivings about that, suggesting that the statute be eliminated only where DNA evidence existed.

The net effect of the bill is to penalize defendants for the state's sloth.  The whole reason this is an issue is because police around the state, but especially in Cleveland, waited years before sending out rape kits for testing.  I recently handled a case where the rape kit sat in the police evidence room for exactly eighteen years - to the day - before being submitted.

One area where it will have a negative impact on defendants is where there's a viable consent defense.  If the victim is a stranger, it's kind of hard to explain why the defendant's DNA wound up in her vagina or wherever.  But in the case I just mentioned, the woman had known the defendant for a period of time, and had a relationship with him:  the sex act took place in the bedroom of the mother's apartment, with the mother sitting in the living room.  The alleged victim went to the hospital the night of the incident and identified the defendant by name and address.  The detective investigating the case drove by the woman's house twice and knocked on the door and, when he didn't get an answer, simply closed his file.  He never interviewed my client or his mother, and when it came time for trial, it was too late to get the mother's view:  she'd died three years before her son was indicted.

I wouldn't have as much trouble extending the statute of limitations for rape - or anything else, for that matter - if the law on pre-indictment delay wasn't so horribly slanted against defendants.  As it stands now, the defendant has to not only show that witnesses have gone missing since the incident, he has to show that they would have definitely given exculpatory testimony.  In my case, the State claimed we had no idea what the mother would have testified to.  Well, yeah, if the cops don't investigate and the mother never even knows that her son's being charged with a crime, it's pretty hard to show what she would have testified to.

The problem with the law on pre-indictment delay in these cases is that it's often the result of almost a criminal lack of diligence on the part of the police.  A reasonable way of approaching it would be to evaluate both the reason for the delay and the prejudice to the defendant.  That's not how it works, though.  The reason for the delay is the second step in the analysis; you don't even get to that point unless you can show the defendant's been prejudiced. 

That stems from two US Supreme Court's decision from the 1970's, so the only way it's going to be changed is if the Court chooses to re-examine those rulings.  And we know the chances of that.

Then again, a couple of weeks ago the Ohio Supreme Court in State v. Brown held that the Ohio Constitution, at least on search and seizure issues, provides more protection than the United States Constitution, so maybe that's the way to go.  It couldn't get worse.

*   *   *   *   *

The Supreme Court's done with its term, and the Ohio Supreme, after a flurry of activity, has settled into the customary summer somnolence.  Good time for me to take my summer break, too.  I'll see you back here on July 20th.

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