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Some you win, some you lose, and sometimes you do both

Yesterday, the Supreme Court handed down the decision in State v. Jones.  I represented Jones.  He was the appellee.  The case got reversed and remanded back to the 8th District.

So why am I smiling?

Just the facts, Ma'am.   Jones was the case on pre-indictment delay.  Jones was indicted for a rape that supposedly took place about 20 years ago.  The woman knew him; in fact, she'd met him that day at his mother's apartment, where the rape allegedly happened.  According to her, the rape happened in the bedroom, with Jones' mother  sitting in the living room the whole time, unresponsive to the woman's cries for help.  The woman immediately reported it, and gave the police all the info about Jones, including his name and the address of the mother's apartment.  The detective put less effort into the case than I do sorting my laundry; after stopping by the woman's house and calling her once on the phone, without getting an answer either time, he closed the file.  The State indicted Jones twenty years to the day after the incident; Jones' mother had died two years earlier.  The judge tossed it for pre-indictment delay, and the 8th District, in an en banc decision, affirmed.

So why did the 8th District get reversed?  The law on pre-indictment delay is that it requires a two-step analysis:  Did the defendant suffer actual prejudice, and, if so, was the delay justifiable?  The Supreme Court found that the 8th had commingled the two:  it had essentially found a "due process" violation from the fact that the delay was unjustifiable.

So why am I happy?  The big issue wasn't whether the delay was justifiable, or even whether the 8th had misapplied the analysis.  The real question was, what constitutes actual prejudice?  The State had argued that a defendant claiming actual prejudice had to provide proof that is "specific, concrete, and non-speculative"; essentially, Jones had to show that the mother's testimony would have been exculpatory.  Short of holding a séance mid-trial, there aren't many ways of finding out what dead people have to say.

That's pretty much the universal view in the Federal courts, and also the Ohio courts, which usually cite the Federal cases for it.  In fact, Attorney General came in with an amicus brief that cited 19 Federal cases holding that actual prejudice requires proof that is "specific, concrete, and non-speculative," every one rejecting the defendant's claim of pre-indictment delay.  So I figured I'd go and find some where they upheld a claim.  Guess what?  There aren't any.

My big concern was that the court in Jones would adopt the Federal standard, which would make the defendant's burden in proving pre-indictment delay "nearly insurmountable."  In fact, those words come from the court's decision last October in State v. Adams.  Like I said, proving what dead people would have testified to is a tall mountain to climb.

But the court specifically rejected the State's argument.  Here's the money quote:

And as we recognized above, the possibility of faded memories, inaccessible witnesses, and lost evidence is insufficient to demonstrate actual prejudice. Nevertheless, we reject the state's suggestion that any claim of actual prejudice based on the death of a potential witness is too speculative to succeed unless the defendant can establish precisely what that witness would testify to and that the testimony would be directly exculpatory.

Jones's inability to articulate specifically what his mother's testimony would have been does not render his claim of prejudice fatally speculative.

The court then discussed State v. Luck, the 1984 decision which was the court's first foray into the issue of pre-indictment delay.  Luck was prosecuted for a 1969 murder; the investigation was inexplicably dropped at the time, only to be resumed fifteen years later.  A man named Cassano had been on the scene at the time of the killing, but died in the interim between the first investigation and the indictment.  Luck argued self-defense, and claimed that Cassano could have assisted her in that defense.  The trial court dismissed it for pre-indictment delay, and the Supreme Court affirmed.

Luck was in no better position to show what Cassano would have testified to than Jones was to show what his mother would have testified to.  Again, from Jones:

Luck demonstrates that a defendant need not know what the exact substance of an unavailable witness's testimony would have been in order to establish actual prejudice based on the witness's unavailability.

So what happens now?  Rather than deciding the case on the merits, the Supreme Court kicked it back to the 8th, presumably for another en banc decision, to "make the determination [of actual prejudice] in the first instance, applying ... the actual-prejudice standard from Luck."  Obviously, the analysis used by the seven-member majority is out the window, but I think so is the analysis of the four dissenters.  The dissent was based in large part upon the "speculative" nature of the mother's testimony:

Here, Jones has no way of demonstrating to what his mother would or would not have testified. * * * Jones's claim is pure speculation.

Well, you've just got a Supreme Court decision saying that Jones doesn't have to demonstrate what his mother would have testified to, and relying primarily on a prior Supreme Court case that found pre-indictment delay on facts essentially indistinguishable from this one.

We'll see how it plays out, but Jones reaffirms the vitality of Luck and clearly rejects the State's "concrete and non-speculative" standard for showing the prejudice.  I'll take it.

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