Pre-indictment delay
The guiding principle of my life - which at this point seems to have devolved to "I'd rather be lucky than good" - was proved out again in the 8th District's decision last week in State v. Jones. Back in November, in State v. Mack, the 8th affirmed the dismissal of a case for pre-indictment delay (discussed here). The trial judge in Jones dismissed the case for that reason, too, and assigned me to handle the defense of the State's appeal. When I found out that one of the judges on my panel was the judge who'd written the opinion in Mack, I figured there was no way I was going to lose.
Once again, my innate modesty had caused me to underestimate my capabilities. A couple months after the oral argument, I got a card from the court saying that because the panel had come to a decision contrary to Mack, it was referring the case for an en banc determination. That's what came out last week, with the court, by a 7-4 vote (one judge recused herself), affirming the dismissal of the indictment.
And it's a big one.
First, the facts. The victim alleged that she'd gone to Jones' mother's apartment with him, and that he had raped her in the bedroom, with the mother sitting outside. According to her, her clothes were ripped, and she screamed loudly enough for the mother to have overheard. She went home and called the police, who escorted her to the hospital, where a rape kit was performed. She told the police and the hospital that her assailant was Demetrius Jones.
So here's what the police did to investigate: the detective drove past her home twice, knocked each time, and didn't get an answer, so he closed the file. Here's what the police didn't do: anything else. They never interviewed Jones or his mother, never went to the crime scene. There were no photographs of the alleged victim, her clothing was long gone, as was the tape of the 911 call she made. The rape kit sat in the police evidence room for exactly eighteen years before it was sent out and tested. Jones was indicted the day before the 20-year statute of limitations would have expired. His mother had died two years earlier.
To get a case tossed for pre-indictment delay, the defendant has to show that he was actually prejudiced by the delay. Many court decisions have held that to show actual prejudice, the defendant must show that evidence has been lost which would definitely have been exculpatory. Jones argued that his mother could have testified that Jones and the woman had a long-standing relationship, and that nothing occurred in the apartment on the day in question. The State contended that this didn't prove "actual" prejudice, because we don't know what the mother would have said.
The most significant aspect of Jones is its rejection of the "exculpatory evidence" standard in favor of looking at "conceptions of due process and fundamental justice." In short, instead of focusing on a particular piece of evidence, the court is to look at the big picture and determine whether it is fair to try the defendant, given the missing evidence.
Several factors play into this. First, the police work in this case - using the term in the loosest possible sense - was appalling. As the opinion notes,
The record here demonstrates that the state merely failed to take action for a substantial period. After this inaction of the state, requiring Jones to demonstrate that any missing evidence or unavailable witness testimony would have been exculpatory is simply violative of his due process rights.
A second critical factor was that the DNA evidence added nothing to the State's case: Jones had been identified by the victim from the outset.
Jones certainly isn't a get-out-of-jail-free card for any defendant in a cold case rape. Most of those cases involve "stranger rapes," and there the DNA evidence is virtually dispositive: it not only proves identity, it confirms that sexual activity took place. If your DNA is found in someone you didn't know, you got some 'splainin' to do. Here, though, there was a valid basis for a claim that the sex was consensual.
In fact, it's tempting to suggest that Jones is too fact-driven to be of broad application. I don't think so. First, it's an en banc determination: this is now unquestionably the law in the 8th District. Second, its rejection of the "exculpatory evidence" standard is huge: for that reason alone, Jones is the most defendant-friendly Ohio decision on pre-indictment delay. What you're able to make of it in a particular cases depends on the facts, but when isn't that true in appeals? The bottom line is that the law in this area is a whole lot better than it was two weeks ago.
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