What is the law on pre-indictment delay in the 8th
The one lesson you can draw from State v. Jackson is that If you're claiming that you've been prejudiced by the 18-year delay in prosecuting you for a rape you allegedly committed in June of 1996, it's probably better if you're not claiming that you've also been prejudiced by the 18-year delay in prosecuting you for a rape you allegedly committed the following month.
The other lesson that you draw from the decision is that en banc decisions in the 8th have about as much precedential value as this blog does.
On the off chance that you've been living in a cave, for the past several years the county has gotten around to testing thousands of rape kits which sat in the Cleveland Police Department evidence room for the better part of two decades. (Actually, untested rape kits are a national problem.) The belated testing has led to belated prosecutions, with the result that the concept of pre-indictment delay has gotten a workout.
One of the requirements for that is the defendant must show that he's been actually prejudiced by the delay. What constitutes actual prejudice was presenting so many difficulties that the 8th District decided to hold an en banc hearing on the issue, and the result was the decision last July in State v. Jones. While Jones isn't the outlier that the State claims it to be - although the Supreme Court's going to have the last word on that - it did substantially relax the "actual prejudice" standard.
So how does that impact Jackson? Not at all. Jackson mentions Jones only in passing, as establishing that "a claim of pre-indictment delay rests on 'basic concepts of due process and fundamental justice.'" The opinion then notes that "Courts have consistently held that proof of actual prejudice must be 'specific, particularized, and non-speculative,'" a position flatly rejected by Jones. Perhaps most surprising is that the Jackson opinion was authored not by one of the dissenters in Jones, but by one of the judges who concurred in the opinion of the seven-member majority.
That's not to say that Jackson reaches the wrong result. These cases are very fact-driven, and Jackson relied on the same things that others have, with similar lack of success: loss of medical records, the investigating detective is no longer around, memories have faded. Since Jones, there have been five cases (including Jackson) involving the issue of pre-indictment delay. The defendants have lost four, the only winner coming in State v. Dixon. There, the defendant could point to the fact that a key witness had died, similar to the contention in Jones.
There could be another winner. Yesterday I had an oral argument, and after getting kicked around the courtroom for half an hour, I decided to stick around and watch the argument in the next case, State v. Dickerson, another pre-indictment delay case. Dickerson seemed to have a pretty good hook on the issue. He'd been immediately identified by the victim, which is big, because it means the later DNA test doesn't really add anything to the case. Consent was a tricky issue - the victim was a drug addict, so the best Dickerson could manage was that this might have been a sex-for-drugs exchange. But his best argument was that the detective investigating the case had brought the victim in for an interview, and after taking her statement decided to close the case. Why she made that decision was the mystery: she's not around anymore, and neither is the statement.
Still, you could see the panel - which included the authors of Jones and Jackson - wrestling with the case. Both the defense attorney and the prosecutor were subjected to pointed questioning, and this is one where I wouldn't even try to guess the result.
Jones is a virtual lock to be decided by the Supreme Court; the 8th has certified a conflict, and the issue's big enough to merit their attention. (An appellate court certifying a conflict isn't a sure in; the Supreme Court still has to determine that on its own.) If the court decides to adopt the "specific, particularized, and non-speculative" standard - which, in the prosecutors' view, means the defendant has to prove what dead witnesses would have testified to - well, that's pretty much the standard outside the 8th District anyway.
Or maybe inside it as well.