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What's Up in the 8th

Ah, the Bad Old Days of the Cuyahoga County Prosecutor's office.  Laurice Glover, Eugene Johnson, and Derrick Wheatt can tell you about them.  They were convicted of the murder of Clifton Hudson in 1996.  Eighteen years later, they discovered that the prosecutor, Carmen Marino, had hidden evidence of statements given by two other eyewitnesses, which were contradictory to the testimony of the only eyewitness to appear at trial.  Last week, the 8th District affirmed the grant of a new trial on that basis.

Part of the State's argument was this:

The state argues that the trial court reached its decision by considering evidence outside of the record, namely, the reputation of Marino as former first assistant county prosecutor, as well as the trial court's own personal opinion.

There was much outside the record as to the reputation of Carmen Marino.

You could start with the 6th Circuit's 2004 decision in In re Lott, which found that Marino "failed to disclose at trial that the murder victim, before dying, identified a person with a different skin color from Lott as his assailant," and in a footnote detailed Marino's similar malfeasance in no fewer than ten other cases.  Or you could simply take the word of any defense lawyer or judge who practiced during the 1990's and early 2000's. 

Anthony Apanovitch gets a new trial, too.  He was convicted and sentenced to death for a rape and murder back in 1984.  He benefits not from prosecutorial misconduct, but from advances in technology:  a testing of his rape kit excludes him as a contributor to the vaginal swab from the victim.

What's interesting about the case is the disposition of the two rape counts, one for oral sex and one for vaginal sex.  A decade ago, the 6th Circuit's decision in Valentine v. Konteh was all the rage.  Valentine had been charged with twenty counts of child rape, each count the same as the others:  all alleged that over a period of about a year, Valentine had raped the child.  (The indictment also contained 20 counts of felonious sexual penetration, phrased in the same manner.)  The child testified to one incident of abuse, then told the jury that it happened "15 or 20 times." 

The 6th Circuit tossed out all but one conviction of each, holding that such a procedure raised due process concerns about a defendant's double jeopardy rights.  One of the requirements for an indictment, as the Supreme Court noted back in 1962, is to make sure everybody knows exactly what the defendant was convicted of, so that he can claim double jeopardy if he's charged with more such offenses over the same time period.  If it's not clear exactly what offenses he was convicted of committing, the Valentine court held, he can't do that.

Valentine hasn't held up well.  As I recounted a few years back, the opinion's been eroded, not only in Ohio cases but also in the 6th Circuit, to the point where nobody pays any attention to it any more.

Well, not quite, because that was the problem in Apanovitch.  The new DNA test negated the guilty verdict of vaginal rape, but there was no way to tell which of the two counts pertained to the vaginal rape and which pertained to the oral rape.  So they both get tossed.

Once bitten, twice shy is the epitaph for State v. ClarkClark was convicted of beating his girlfriend's two children, but the 8th reversed his conviction back in 2012, finding that testimony by the two teachers as to what one child had told them (both children were found incompetent to testify) should have been barred under Crawford v. Washington because the teachers were "government agents" in light of their statutory duty as "mandatory reporters" of child abuse.  Much to the surprise of most people, the Ohio Supreme Court affirmed that decision by a 4-3 vote, only to see the US Supreme Court take the case and unanimously reverse.

Not to worry, I said

Regardless of what happens, Clark's going to get a new trial:  the 8th also held that testimony about the statements made to the boy's grandmother and great aunt, which came in under EvidR 807, shouldn't have been allowed, and the State never appealed that.

So what happens on remand?  Clark's convictions are affirmed, and the matter is remanded for resentencing on the issue of costs.

What happened to the finding that the testimony of the great aunt and grandmother shouldn't have come in?  We don't know; it's never mentioned in the opinion.  I even went back and checked the original opinion.  There's a whole section dealing with EvidR 807, and concluding that the admission of the statements to the two family members was prejudicial error.  As Casey Stengel said, you can look it up.

Perhaps even more puzzling is the court's treatment of the allied offense issue.  Clark was tried in 2010, at which time the Rance test was still in effect, requiring a court to compare elements of the two offenses in the abstract, rather than looking at the facts.  By the time of the first appeal, Rance had been overruled by State v. Johnson, which focused on the defendant's conduct.  Under that test, the offenses clearly would have merged:  Clark used the same conduct, beating the children, to commit the offenses.

Instead of applying Johnson on the remand, though, the panel applies Rance, because it was the law in effect at the time of the crime, and the Supreme Court in State v. Ketterer said that Johnson wasn't to be applied retroactively.  Under the Rance test, the offenses don't merge.

This is a complete misreading of the law on retroactivity of decisions.  A decision can't be applied retroactively once the judgment has become final; as Kettering explains, that means once "the accused has exhausted all appellate remedies."  In short, a new decision applies to all cases which are pending or are on direct appeal.  Which Clark's case was.

I'm guessing a motion for reconsideration is in the works.

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