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Too clever by half

I pulled into the parking lot for Meigs High School at 8:15 on a Wednesday morning a couple weeks back.  I wasn't sure I was at the right place until I saw a bunch of people in suits heading for the entrance.  That meant it was either a DEA raid or the Supreme Court argument I was going to have in a couple of hours.

Cross off the DEA raid.  I was in the right place.

Three hours later, I set off on the four-hour return drive back to Cleveland, which gave me ample time to play my favorite game, "What I Should Have Said Was..."

State v. Jones was the case on pre-indictment delay.  Jones allegedly raped a woman in 1993, in his mother's bedroom.  The mother was in the apartment at the time, according to the woman.  The woman went to the hospital, identified Jones by name and gave the address of where the incident took place.  The cops turned it over to a detective, who in the next five days visited the woman's house and called her on the phone.  Not getting an answer either time, he closed the file.  Eighteen years later, the cops finally sent out the rape kit that had been collecting dust in their evidence room, and got a match to Jones.  He was indicted a day before the statute of limitations ran.  His mother had died almost three years earlier.

The judge kicked it out for pre-indictment delay, and the 8th District affirmed in an en banc decision, but I had some problems.  First, the law on this, especially the law in the Federal circuits, is horrible.  There's a two part test:  the defendant has to show actual prejudice, at which point, the government has to show that the delay in prosecution was unjustifiable.  The Federal courts have held that to establish actual prejudice, the defendant has to point to lost evidence which is "concrete, non-speculative, specific, and exculpatory."  The State interpreted that to mean that I had to show what the mother would have testified to, which would have been tough, since I didn't bring a Ouija board along.

The second problem was that while the 8th District's decision in Jones had correctly concentrated on the central issue - due process, or fundamental fairness - it hadn't used the two-step process.

But I had one huge thing in my favor:  the Court's 1984 decision in State v. Luck.  There, the police investigated Luck for a murder, but dropped the ball, not picking it up again until 15 years later, and then with no more evidence than they had before.  In the meantime, a guy named Cassano, who Luck said was at the scene of the killing and "could have helped" her out in her claim of self-defense, had died.  The court affirmed the dismissal of the indictment, finding that actual prejudice in the death of the witness resulted from the State's unjustified delay.

While I don't think Supreme Court decisions have a sell-by date, a lot's happened in the law on pre-indictment delay, like the 19 Federal court decisions the AG's office cited in their exhaustively researched amicus brief.  And, of course, that bled down to the state level; there were a couple dozen state court cases using the same language.

My buddy John Martin gave me the idea on how to beat that.  "You've got to remember," he said, punching the air with his tiny fingers to emphasize the point, "The statute of limitations for almost all Federal crimes is five years."

Just about every case on pre-indictment delay carries the caution that the statute of limitations is the accused's primary defense against stale prosecutions.  Well, a five year statute is a mighty fine defense.  A 20-year statute - now 25 years, and 30 if DNA evidence is discovered - for rape isn't nearly as good.  And the Federal courts don't have 20-year delays; the average delay in those 19 Federal cases was about 30 months.  And they don't have screwed up investigations like this one; an FBI agent doesn't close out a file five days after he gets it because somebody didn't answer the phone.  We'd argued that the case should be decided under the Ohio Constitution, because that would get rid of that pesky Federal law, and that argument fit in nicely with it.  (By "we," I'm including the Ohio Association of Criminal Defense Lawyers, the Ohio Public Defender's Office, the Cuyahoga County Public Defender's Office, and the Cuyahoga Criminal Defense Lawyer's Association, who all submitted top-notch amicus briefs.)

So here's the thing.  I didn't want them to have the alternative of affirming the 8th District or adopting the State's "concrete, non-speculative, specific, exculpatory, and impossible to prove" proposition of law, so I decided to come up with a third alternative, a "cross-proposition of law."  Which I did.  On Wednesday, it was discussed for exactly zero seconds.  Nobody touched it, including me.

See, here's the problem with people believing that you're smart: they're unwilling to tell you when you're dumb.  I talked this over with a number of people, all very sharp and very skilled appellate attorneys, and not one of them did what they should have done:  smacked me a couple of times like they did with the soldiers who were suffering from shell-shock in those old WWII movies, and say, "Bensing, you idiot.  You have a Supreme Court case virtually identical to yours.  What Cassano was actually going to say on the stand was no less speculative than what momma was going to say here.  So you tell them to forget the Jones decision, and apply the Luck test themselves, or you tell them to remand back to the 8th so they can apply the Luck test.  Here's what happened in Luck, this is what you did.  This is what happened here, which is the same thing, so you should do the same thing.  How hard is that?"

That's what I should have said.

Anyway, you can watch the oral argument here.

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