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Does Jones create new law?

Back in November, in State v. Mack, the 8th District threw out a case because of pre-indictment delay.  The State appealed to the Ohio Supreme Court, and that court's still deciding whether to take the case.  My personal feeling was that I hoped the court would take it, because the law on the subject couldn't get any worse for defendants.

I think we're going to find out.

If Mack doesn't get in, a likely candidate is the case that came down a couple of weeks ago, State v. Jones.  In my earlier discussion of the decision, I'd said it was "the most defendant-friendly Ohio decision on pre-indictment delay."  The State certainly thinks so.  It's recently filed a motion seeking to have the case certified to the Supreme Court; according to its rather apocalyptic rendering, Jones is in conflict "with prior cases in eleven other appellate districts and prior cases from this Court." 

So is Jones that much of an outlier?

The test for pre-indictment delay is whether the defendant has suffered actual prejudice from the delay; if he has, you proceed to the next step, which is the reason for the delay.  Most defendants don't get past the first step.  The courts have been unanimous in holding that "speculative" prejudice inherent in any delay - the loss of memory, potential loss of witnesses - doesn't cut it; a defendant has to show something more.

What that "more" is was the crux of Jones.  The victim had claimed the rape had occurred in the bedroom of Jones' mother's apartment, and that the mother had been sitting in the living room, where she could have heard everything.  The mother died two years before Jones was indicted.  The State claimed that the mother's death created only "speculative" prejudice:  we don't know what the mother would have testified to.

This is how the case law has developed in recent years:  there are statements by courts, including the 8th last year in State v. McFeeture, that "proof of actual prejudice must be specific, particularized, and non-speculative."  The statements don't match up to the facts; usually, the defendant can't show any prejudice beyond the mere passage of time.  McFeeture, for example, argued that in the six-year interval between the time of the crime and the time of trial, two medical examiners from the coroner's office had retired.  But the doctor who'd actually performed the autopsy testified at trial. 

On the other hand, requiring Jones to prove what his mother would have testified to makes it almost impossible to maintain a claim of prejudicial pre-indictment delay.  The mother could hardly have expected to tell her friends and relatives that her son didn't rape anybody, when she died two years before Jones even knew he was being accused of a crime.

And it's more than a little unfair.  The reason we don't know what the mother would have said - or if the victim's clothes were ripped and the drapes at the apartment torn, as she claimed - is that the police didn't do squat:  they did nothing to investigate the case, even though they had Jones' name and address at the outset, and let the rape kit sit untested in the police evidence room for eighteen years.

What rankles the State is the Jones court's apparent creation, at least in the State's view, of a "due process and fundamental fairness" standard for determining actual prejudice.  That language is hardly surprising, given that the right against undue pre-indictment delay arises from the Due Process Clause.  (The right to speedy trial, on the other hand, isn't triggered until charges are actually filed.)

To be sure, it does go beyond the language in some recent decisions about evidence of prejudice needing to be "specific, particularized, and non-speculative."  But much of that is dicta, and what's more, it seems to be in conflict with the basic underpinnings of the concept of pre-indictment delay.  The first Ohio decision on the subject was State v. Luck, a 1984 case where the police department had essentially stopped their investigation of a murder for 15 years, then resumed it and indicted the defendant on virtually the same evidence they'd had at the beginning.  In the meantime, a key witness had died, and all the police investigatory work - statements and notes of interviews of witnesses - had been lost.  The court affirmed the dismissal of the indictment, finding that

the delay in commencement of prosecution against Katherine Luck violates those fundamental conceptions of justice which lie at the base of our civil and political institutions, and which define the community's sense of fair play and decency.

Notably missing from the opinion is any demand that Luck had to prove what the witness would have testified to, and what the missing evidence would have shown.  Frankly, I'm not seeing a whole lot of daylight between Luck and Jones.

I don't know if the Supreme Court's going to take up Mack, or Jones, or the 8th's decision last week in State v. Dixon, affirming another dismissal for pre-indictment delay.  But it should take one of them, because the issue is becoming increasingly critical.  The early decisions on pre-indictment delay held that the statute of limitations is the primary protection against the prosecution of stale claims.  Back then, though, the statute of limitations for all felonies except murder was six years.  It became 20 in 1999, and as I mentioned a couple weeks back, the legislature recently extended the statute of limitations for rape to 25 years, and there's talk of eliminating it altogether.

If the statute of limitations isn't going to be a protection against the police sitting on their butt instead of investigating a case promptly, something has to be.

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