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The ways of the big city

I think the Ohio Supreme Court thinks that Cuyahoga County is a foreign land.

That was the common theme in the oral argument yesterday in State v. Rosario:  astonishment that it is a common practice up here to have a defendant sign a cognovits for court costs, the latest of the county clerk's blood-from-stone experiments.  Perplexity at the notion that a probation officer should be tasked with the responsibility of presenting evidence and essentially prosecuting a community control violation.  Amazement at the fact that all 34 judges here follow the policy of not telling the prosecutor's office when a violation hearing will be held.

The case comes up on the policy of a particular judge here to exclude prosecutors from violation hearings.  And, when it comes to Cuyahoga County's practices, the court wasn't writing on a blank slate.  The whole "void" doctrine for post-release controls is arguably due to the fact that until relatively recently prosecutors in Cuyahoga County never showed up for sentencing hearings.  Had the Supreme Court held that the judge's failure to properly impose post-release controls made the sentence merely voidable, the prosecutor would have had to appeal it within thirty days, hard to do when you have no idea when the sentencing hearing was or what happened in it.  So instead the court made the sentence void, so that PRC could be imposed when somebody finally caught up with the fact that it hadn't been done correctly.

And then, of course, there was the time that a case went up because the prosecutor called the defendant's wife to the stand to testify against him, without telling her that she had a privilege not to.  The prosecutor's office thought it a good idea to have the trial prosecutor to sit at the table for oral argument, and so he got to listen to Pfeifer rant about how this was "another case out of Cuyahoga County where the rules of evidence are as plain as a barn door and it's just ignored by the prosecutor.  How much incompetence do we have to continue to tolerate?"

The argument yesterday wasn't nearly as bad for the prosecutor, but she ran into two key procedural problems.  The first was that this wasn't a violation hearing:  it is what's referred to here as a compliance hearing, simply to determine whether Rosario had complied with all the requirements of probation.  (She had, so probation was terminated.)  It's a tougher argument to make that a prosecutor needs to be there to present the State's position.

The second problem was that the prosecutor's office had asked the 8th District for leave to appeal, since they had no appeal as of right.  The 8th District denied leave, which meant that the issue on appeal, as O'Donnell pointed out, was arguably whether the 8th had abused its discretion in denying leave.  Given the fact that this wasn't even a probation violation hearing, it's tough to argue that the 8th's decision not to hear the case was unreasonable.

Rosario's attorney had his share of problems, too.  He made a valiant argument that the prosecutor was indeed irrelevant, his main point being that the statute and rule on sentencing hearings clearly contemplated a role for the prosecutor, but the statute on probation violation hearings never mentions the prosecutor.  He was selling, but it didn't look like anybody was buying; most of the justices were openly incredulous at the thought that someone who wasn't even a lawyer would be representing the State in an adversarial hearing.  And the fact that the probation officer is actually an employee of the court, raising separation of powers problems, makes it only worse.

So what's going to happen?  Most likely, the next time I write about State v. Rosario it will be to tell you that the court dismissed the appeal as improvidently granted.  Several justices were quick to focus on the fact that there are no fewer than thirteen cases involving this issue pending before the court, and in two of them the 8th District accepted the appeal, and then ruled against the State.  That would certainly seem to be a cleaner avenue for considering the issue.

And I don't think there's much doubt about the outcome when the court finally gets around to doing that.  

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