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What's Up in the 8th

You know those signs in business establishments that say "No Public Restrooms"?  Well, apparently there aren't any of those signs at Cleveland Hopkins Airport.  Nedra Dickerson and her son, Aaron Hendon, travel out there to use the bathroom.  A cop approaches Nedra - he's seen her before - and tells her she can't loiter.  Her son comes out of the restroom a minute later, the argument escalates, and Nedra and Aaron are arrested, charged, and convicted of criminal trespass.

That goes up on appeal, and the two panels come to differing decisions, so all twelve judges - well, eleven, since one of them handled Aaron's case in the municipal court - get together en banc to sort this out in Cleveland v. Dickerson 

There's no question that the airport is open to the public, and so there's no trespass by going there.  The law does allow the privilege to be there to be revoked, and the main issue on appeal is whether the police have to show that Dickerson and Hendon did something which warranted revoking consent.  The two hang their hat on a North Carolina case that comes out that way, but the eight-member majority (two concurring only in judgment) agree with the Ohio case law that says the property owner can revoke the privilege without reason, unless doing so would infringe on a constitutional right, like freedom of assembly.  The convictions are affirmed. 

One of the concurring judges notes that the case "likely demonstrates how we have failed to address issues of homelessness in our society."  Yes, and there's an issue of prosecutorial discretion which goes unaddressed.  If you're homeless and have to ride out to the airport just to use a bathroom, your life is sufficiently crappy - no pun intended - that you don't need the added insult of an arrest and a criminal charge.

According to its web site, the Cleveland firm of Calfee, Halter & Griswold has 155 lawyers.  While the site boasts a number of practice areas, like "Business Services" and "Intellectual Property," absent is any mention of criminal law as an area of expertise.  One of their lawyers, nonetheless, represents Claudia McClellan in her prosecution for going 35 mph in a school zone, and also represents her in her appeal from the ensuing conviction, which suggests that Claudia is a family member of someone in CHG, or one of their clients.  I've learned from sad experience that venturing outside of one's legal comfort zone rarely results in anything good happening, and so it is here:  McClellan pays the fine and costs immediately.   But that moots an appeal of a misdemeanor, unless the defendant tried to get a stay of execution, or will suffer some collateral disability.  That's the kind of discussion you don't want to have with a client.

In truth, though, the court could be wrong. The opinion doesn't indicate whether McClellan had points assessed on her license, but if she did, the Supreme Court has held that's a sufficient "collateral disability" to save the appeal.

And if you're an assistant county prosecutor, you probably don't want to explain to your boss how you appealed the defendant's sentence, only to have him cross-appeal, get his conviction vacated, and walk.  That's what happens in State v. Dickerson

The sixteen-year old victim had been walking home at 1:30 AM in July of 1994, fresh from a night of drinking and smoking marijuana, when a car pulled up, with two black males in the back and an older white male, Polivka, driving.  She got into the car, and the men drove her to a hotel, Polivka checking them in at 4:42 AM, and then driving off; the victim had no idea what happened in those three hours.  She testified that she was then repeatedly raped by the two men.  The men were still sleeping in the hotel when they were arrested, but the detective closed the investigation. 

Then 18 years later the rape kit was sent out, they got a CODIS hit on Dickerson, and here we are.  His lawyer filed a motion to dismiss for pre-indictment delay a week before trial, but the judge denies it as untimely.  (There is no little irony to your motion claiming that the State improperly delayed prosecution of the case being denied because you improperly delayed filling the motion.) 

Dickerson is convicted, the judge sentences him under HB 86, and the State takes up the appeal, arguing that he should've been sentenced under pre-SB 2 law.  Dickerson cross-appeals, though, claiming that his motion for pre-indictment delay should have been granted, and his lawyer was ineffective for the tardy filing.

The question of what constitutes actual prejudice for pre-indictment delay is the subject of debate, but it appears the gold standard is the death of a critical witness.  That's what happens here - Polivka died in 2007.  The majority finds that his testimony would have been especially significant in determining what happened during the missing three hours; one of the jurors asked that question during the trial.  It vacates Dickerson's conviction, mooting the State's appeal.

Now, here's an interesting question.  Michael Jenkins was the co-defendant with Dickerson.  He was also convicted and sentenced under HB 86, and the State appealed that.  It lost, because the 8th has consistently held that HB 86 applies to pre-SB 2 offenses.  But Jenkins didn't cross-appeal, and his trial lawyer never filed a motion to dismiss the indictment.  And there's nothing he can do about it:  the time for filing for post-conviction relief or a 26(B) motion to reopen the appeal ran out last month.


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