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What's Up in the 8th

Ever have a domestic violence case where the complainant didn't show up at trial.  "You mean, this week?"  Of course you have.  The judge will grant the State one continuance, but if the complainant doesn't show up the second time, the judge will dismiss it, and tell the State that if it finds the woman and she's willing to testify, the State can always refile.

That's probably not going to happen anymore, at least in this county.

It did happen in State v. HollinsHollins severely beat up his baby mama - orbital fractures, and the like - but she didn't show up for trial.  The court continued it, and prior to the second date, the State sought a material witness warrant for the woman.  The prosecutor told the judge that he'd tried to get a hold of the woman, she refused to cooperate, told him that she wasn't showing up, and told him that even if he forced her down to court, she wouldn't testify.  The judge dismissed the case, the State appealed, and the panel decides that dismissal was an abuse of discretion:  the judge should have granted the warrant.  A majority of the panel, that is; the dissent points out that Hollins had spent 137 days in jail before the case was dismissed. 

Maybe, in light of the woman's injuries, that wasn't a bad thing.  But that seems to go into the trial court's discretionary review, and the opinion really doesn't lay out anything which guides a court in deciding whether to grant a warrant or dismiss the case.  The judge got reversed for not issuing the warrant, so from now on, expect judges to issue warrants.

Before the new open discovery rules were adopted in 2010, you didn't get to see a witness' written statement until after he testified, at which point the judge would review it and determine whether there were any "material" inconsistencies.  Well, it looks like we're going to go back to that after the court's decision in State v. Smith

Smith was charged with rape and assorted other offenses, but the big issue arose when the defense sought to impeach the State's key witness with the statement she'd made to the police.  In the midst of the cross-examination, defense counsel asked for a sidebar, at which point the judge informed everyone that she'd reviewed the transcript of the police interview and didn't find any significant inconsistencies, and so precluded the defense attorney from using it.

The panel could have upheld the preclusion by classifying it as harmless error:  if the consistencies weren't material, the defendant wasn't prejudiced by not allowing them to come out.  Instead, the panel decides that the judge had the discretion to exclude it as extrinsic evidence of a prior inconsistent statement.

That's not right.  For example, say the witness denies that she made the statement, and the defense calls someone to testify that she did in fact make it.  That's extrinsic evidence; if it goes to a matter that's purely collateral - the witness testified that she went to church yesterday, and you want to bring in somebody to say that she didn't - that's excludable.  But the prior statement itself isn't extrinsic evidence.  As I said, right result, but now you're going to have prosecutors in this county waving this decision around and telling judges that they get to be the gatekeeper on whether defense counsel can even cross-examine on a prior statement.

So wave this post around and tell the judge it doesn't work that way.  That should help.

The appellate division of the county prosecutor's office isn't squeamish about appealing to the Supreme Court, and I can pretty much guarantee that they were working on the appeal from State v. Gordon before the ink was dry on the opinion.

Gordon was charged with aggravated robbery, kidnapping, and felonious assault of a guy named Tevaughn Darling.  The prosecutor gave Gordon's lawyer a DVD containing Darling's statement to the police.  A few days later, a version of the statement appeared on Instagram, cleverly edited to make it appear that Darling was giving the police a statement about a local gang.

That didn't make Darling the most popular person in the 'hood, so the State tacked on an intimidation charge, asked to join the two cases for trial, and moved to have Gordon's lawyer disqualified because he would be a material witness in the intimidation case.  The court granted both motions, and the jury convicted Gordon of everything.

The panel reverses, finding that the trial court erred in joining the two cases.  Why?  Because the lawyer wasn't a witness to the robbery case, and if the cases hadn't been joined, he could have continued to represent Gordon.  By joining the two, the trial judge essentially denied Gordon his attorney of choice for the robbery case, and that's a 6th Amendment violation.

I have to let that one simmer for a couple of weeks before I can even hazard a guess as to how it's going to come out if it gets down to Columbus.

I'm sort of the Answer Grape for defense lawyers here, but I got stumped the other day when somebody asked me if you could seal the records of an arrest if the defendant was found not guilty by reason of insanity.  Well, that gets answered this week in State v. Reiner:  yes, you can.  Doesn't do Reiner any good:  the panel finds that the trial court didn't abuse its discretion in determining that the State's interest in keeping the records public outweighed Reiner's interest in sealing them.

Finally, we come to State v. Diaz, which contains a lengthy analysis of whether the statements of a three-year-old child, who was determined to be incompetent, to a SANE nurse and several social workers can be admitted at trial.  There's a lengthy discussion of EvidR 803(4), statements made for purposes of medical diagnosis and treatment, with a side order of Crawford and testimonial statements thrown in, but the entire thing can be distilled to this:  in Ohio, and probably every place else, whatever a kid says about sexual abuse, whenever she says it, and whomever she says it to, it's coming in.

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