What's Up in the 8th
Only a half-dozen criminal decisions from the 8th last week, but we certainly didn't lack for substance. Cases involving Insanity pleas, cell towers, and expert witness fees are topped off by another pro-defendant decision on pre-indictment delay. Other than a decision on consecutive sentencing, that's the only win for defendants this week, though.
That decision comes in State v. Hawkins. The consecutive sentences get vacated because the judge didn't make the disproportionality finding, but the more interesting issue is Hawkins' claim that his attorney was ineffective for failing to investigate an insanity defense. Hawkins was sent to the Psych Clinic for a mitigation report after the plea, and the shrinks determined that he suffered from "multiple psychiatric problems, including auditory and visual hallucinations, and paranoid delusions." And that came with a side of bipolar disorder, schizoaffective disorder, and anti-social personality disorder. (Time out. When did being an asshole become a personality disorder?) The court finds that there was "no evidence that would allow us to conclude that his mental state at the time of the offenses would support a viable insanity defense."
Really? No evidence, huh? To be sure, it's difficult to gauge ineffective assistance on whether an insanity defense could have been successful; that's better pursued in a post-conviction relief petition, because you can get into stuff outside the record. But I'll tell you one thing: I'm pretty uncomfortable with a plea from a guy who's obviously got some very serious mental problems, which may very well have gone untreated. The failure to pursue a competency evaluation seems more the problem to me.
Hawkins shows that the 8th District is moving away from its initial reaction to the Supreme Court's decision in State v. Bonnell. In the immediate aftermath, a number of decisions here heralded Bonnell as establishing a more relaxed standard for evaluating whether the judge had made the necessary findings to impose consecutive sentences. I felt that Bonnell did nothing more than reiterate the law that the judge didn't have to use "talismanic" phrases; "close" was good enough for government work. More recent cases from the 8th seem to indicate that it's come around to that view as well.
The ubiquitous nature of cell phones has introduced a new player to the prosecution team: the Cell Phone Tower guy. And so it is in State v. Dunn, a murder case. Dunn claimed to be on the other side of town at the time of the killing, but a representative of Verizon came in with all the cell phone data for Dunn's phone for that day, including what cell phone towers his calls had hit off of, another witness had created a helpful map showing those towers in red, and the prosecutors argued that all this showed Dunn was near the scene of the crime.
What's missing, I argued, was expert testimony that a cell phone hitting off of a particular tower indicates that the cell phone was nearby. I brought in cases from several other states holding that expert testimony was indeed necessary, but the panel was unimpressed. The case law in Ohio is very bad on this issue; there are several cases holding that expert testimony is unnecessary, because lay people can figure that out. Alas, I didn't make the case law any better, and Dunn's conviction is affirmed.
State v. Dixon is the latest case on pre-indictment delay, and it follows much the same pattern as the two previous cases, State v. Mack and State v. Jones, where the court affirmed the dismissal of the indictment. Dixon was charged with rape, but he claimed it was consensual. A difference between his case and the other two is that Dixon did have a trial, of sorts: he was on parole at the time, and the parole board had two hearings, found him guilty, and sent him back to prison for two years. Despite having clearly been identified, the State did not pursue criminal charges until nearly twenty years later, after they got a CODIS hit with his DNA from the rape kit.
There's an argument to be made that Jones, an en banc decision, established a new standard for gauging whether a defendant had been prejudiced by the pre-indictment delay, moving from the "exculpatory evidence" standard, where a defendant had to show what missing witnesses would have testified to, to a "fundamental fairness" standard, where the court determines whether, in light of the missing evidence, the defendant can receive a fair trial. (Whether that analysis is correct is a question we'll address tomorrow.) In any event, the panel finds that Dixon has established prejudice under either standard. At the parole hearings, his employer testified that he'd talked to the victim, and she'd told him the sex was "mutual, with no force." The employer died well before Dixon was indicted, and the court finds that's sufficient prejudice.
That puts the burden on the State to show that the delay was justifiable, and here's where things get interesting. The State first argued that it didn't have the DNA evidence until 2013, but the panel correctly notes that it didn't need it: Dixon was identified immediately after the incident. The State's other contention was that the delay was due to the fact that the victim signed a form indicating she didn't want to prosecute. The panel finds that's not enough: not only did she testify at the parole hearings, but
there is no evidence that the state ever made an attempt to persuade or compel her testimony at any point in the nearly 20 years since reporting the alleged rape. Likewise, there is no evidence the state pursued any other avenue in the investigation.
Finally, we all know that the man who said money can't buy happiness never sat in a courtroom, and that seems to be the plight of the defendant in State v. Duhamel: one of his arguments is that the trial court erred in refusing to grant him $2,500 for an expert. Put away the crying towels, though: it turns out that the judge had already given him $2,500 for one expert, and another $1,000 for a second expert. The topper? Duhamel wasn't even indigent; he was represented by retained counsel.