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Jonesing

Demetrius Jones is indicted for a rape he supposedly committed twenty years earlier.  The alleged victim claims that the rape took place in Jones' mother's apartment, in her bedroom, with his mother sitting outside in the living room.  She identifies Jones and the place where the incident occurred.  The police close the case, and eighteen years later, they finally send out the rape kit and get a CODIS hit telling them what they knew all along:  that Jones and the woman had sex.  By the time Jones is indicted, though, his mother has died.  The judge decides that prejudices him, and dismisses the case for undue pre-indictment delay.  The 8th District affirms.

Demetrius Jones is indicted for a rape he supposedly committed twenty years earlier.  The alleged victim claims that the rape took place in Jones' mother's apartment, in her bedroom, with his mother sitting outside in the living room.  She identifies Jones and the place where the incident occurred.  The police close the case, and eighteen years later, they finally send out the rape kit and get a CODIS hit telling them what they knew all along:  that Jones and the woman had sex.  By the time Jones is indicted, though, his mother has died.  By the time Jones is indicted, though, his mother has died.  The judge decides that prejudices him, and dismisses the case for undue pre-indictment delay.  The 8th District affirms.

No, I'm not repeating myself.  If you click the links, you'll see that they're totally different cases.  The first is an en banc decision this past summer.  The other is a decision the 8th released just last week.  And yes, it's the same Demetrius Jones.

There are some differences between the cases.  In Jones I, here's what the police did:

      • Drove past the victim's house twice, knocked on the door, and didn't get an answer.

Here's what the police didn't do:

      • Anything else. 

Even though they had Jones' name and address, they not only didn't go out to the place, they never made any effort to contact Jones or his mother.

In Jones II, they were more industrious:  they did visit the house, and interviewed Jones and his mother, taking statements from both denying that any rape had occurred.  The case was even presented to the grand jury, which no-billed it; by that time, the alleged victim had moved to Maryland and was no longer cooperating with the police.

The biggest difference, though, is that Jones I is pending in the Ohio Supreme Court. 

I'm handling Jones I, and I wasn't happy to see Jones II.  I know the State's going to appeal the latter, if only to get across to the court that there's more to Demetrius than they might think.  It's sort of the appellate version of EvidR 404(B).  At the very least, they'll get across the idea that someone who thinks the place to score with chicks is his mother's bed might have some issues.

And it's not like I was looking at a stroll on the beach in any event.  The issue in Jones is what the defendant has to show in order to demonstrate that he's been prejudiced by the delay.  The State's claiming, and the courts have generally held, that a defendant has to show "actual, non-speculative prejudice."  In the State's view, that means I'd have to show what the mother would have testified to.

I think that's pretty ridiculous, but one of the reasons for that is we have a sneaking suspicion as to what the mother would have testified to:  that Demetrius didn't do it.  The problem, though, is that the Supreme Court likes to come up with rules of law that have broad application, and a rule that if the mother dies, that's proof of prejudicial pre-indictment delay, isn't going to cut it.

And what is going to cut it, in the wake of the Supreme Court's decision last year in State v. Adams, isn't clear.  Adams was indicted in 2007 for a murder committed in 1985, and was convicted and sentenced to death.  (The death penalty was vacated; see my earlier discussion of the case here.)  The court begins its analysis of Adams' pre-indictment delay claim by citing a 6th Circuit decision which holds that the defendant's burden of proving pre-indictment delay is "nearly insurmountable."  In literature, that's called "foreshadowing," and sure enough, the court has little difficulty rejecting the claim.  More troublesome is the fact that, like Jones, we have a dead witness in Adams.  A bit of a difference, though; the witness in the latter case had implicated Adams in the murder before he died, so what exculpatory evidence he would have had to offer at trial isn't readily discernible.  And none of Adams' other arguments - faded memories, inability to recall the names of potential alibi witnesses, a lost Miranda rights form - go anywhere, either.

The problem with Jones is that the State's proposition of law is quick and clean:  to establish actual prejudice, the defendant has to show that the missing evidence is exculpatory.  As long as that's the battlefield, Jones is an uphill fight.

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