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Actual prejudice; on the road again

Every now and then, the Ohio Supreme Court decides to "ride the circuit," holding oral arguments outside Columbus.  The arguments on April 20 are going to be held in a high school auditorium in Meigs County.  Although the Tourism Board does its best to make the place sound alluring (I'm not sure how being "less than 100 miles from three major commercial airports" is a selling point - although it sounds like it makes it harder to escape, but there's always Frisbee Golf), I probably would've been content to go to my grave never having been there.  That's not to be; one of the arguments that day is in State v. Jones, the case on pre-indictment delay, which I'm handling.

The case has taken on added importance as a result of the backlog of testing of rape kits, many of which had been sitting in police evidence rooms for over a decade.  That's a particular issue here in Cuyahoga County; my BFF Lexis tells me that there were no fewer than 26 decisions here on the subject in the last three years.  And the issue's not going away, with the recent extension of the statute of limitations for rape to as much as thirty years, if there's a DNA match.

I've talked about Jones before, but a simple refresher:  Jones was charged with rape, the woman claiming that she met Jones at his mother's apartment, and that he raped her in the bedroom, with the mother sitting in the living room.  The woman and Jones knew each other, and she went to the hospital immediately, giving Jones' name and address to the hospital personnel and to the police.  The entire police investigation consisted of the detective going to the woman's house twice; he got no answer when he knocked on the door either time, so he closed the file.  Eighteen years later, the rape kit was finally sent out, producing a CODIS hit on Jones.  By the time Jones was indicted, though, his mother had been dead for three years.  The judge dismissed the case for pre-indictment delay, and the 8th District affirmed that en banc.

To warrant dismissal of the case, the defendant has to first show that he suffered actual prejudice from the delay; if he does, the State has to show justification for the delay.  The battle in Jones is going to be fought over the first requirement:  essentially, it boils down to the question of whether, in order to establish actual prejudice, Jones had to show what his mother would've testified to.

It's an uphill climb - just last year in State v. Adams the Supreme Court cited a 6th Circuit decision which found the prejudice showing a "nearly insurmountable" burden - but there is some hope.  In its seminal decision on pre-indictment delay, State v. Luck, the Supreme Court upheld the dismissal of the case because of the death of a key witness:  the defendant claimed self-defense, and the other person who had been present had died before trial.

That brings us to a case I discussed here yesterday, the 8th District's decision last week in State v. Dickerson.  The 16-year-old victim claimed that she'd been picked up at 1:30 in the morning by three men.  Polivka was the driver, and drove the party to a hotel and checked them in at 4:42 AM, then left; the girl claimed that Dickerson and the other male spent the next several hours raping her in the hotel room.  The 8th vacated the conviction, finding pre-indictment delay from the fact that Polivka died before trial.  Thus, Dickerson, like Jones, suggests that the gold standard in pre-indictment delay cases is the death of a key witness.

But how key?  The dissent contends that Polivka wasn't a critical witness, because he wasn't there when the rapes allegedly occurred.

That depends on how you define "critical," though.  The girl claimed to have no recollection of what happened in the three hours between the time she was picked up and the time they got to the hotel.  Polivka may have provided testimony about that time period demonstrating the likelihood that any sexual activity was consensual.

That's really the key to the actual prejudice standard.  Accuracy of result is the most important aspect of the criminal justice system.  We want the jury to get it right; we do not want the routine acquittal of the guilty, and much less the routine conviction of the innocent.  But an accurate result hinges on the assumption that the jury will be presented with all the relevant evidence.  It is a universal truth that the more information one has in making a decision, the more likely one will make the correct one.  That's why we don't buy property we haven't seen, we don't marry people we've known for a month, and we don't buy stock just because our cousin's barber says it's the next big thing.

And so it is with juries.  At a certain point, so much critical information has been lost that the jury's verdict is no longer reliable.

Whether the Supreme Court's going to buy that is something I'll find out in Meigs County, after which I'll head out for a good round of Frisbee Golf.

*   *   *   *   *

Speaking of being on the road, I'm heading off to Dayton tomorrow for a three-day seminar on appellate practice.  (I know, coals to Newcastle and all that.)  I went to Dayton a few years back, and I'm of the firm opinion that after you take a right at Columbus, the road doesn't go up or down more than a foot the rest of the way; Kansas couldn't be any flatter.  In any event, I'll be out of town, and I'll see you back here on Tuesday.


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