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Hints on pre-indictment delay

I was at an oral argument a few months back, and my friend Jeff Gamso, who writes an excellent blog, was up second.  "What's your case about?" I asked.

"Because of you, I have to tell the court I agree with the State and the case should be reversed."

I've been blamed for a lot of things, although creating ISIS isn't one of them.  Yet.  Turns out that Jeff was there on a case involving pre-indictment delay.  The trial court had dismissed the indictment on the basis of the 8th District's en banc decision in State v. Jones.  I'd handled that case on appeal, and in the Supreme Court.  Last July, the Supreme Court had reversed the 8th's decision, holding that it didn't follow the two-step process for evaluating those claims:  the defendant had to show actual prejudice from the delay, at which point the state had to show justification for the delay.  The court remanded the case back to the 8th to apply the proper test.  In Jeff's case, since the trial judge had used the test the Supreme Court rejected, it had to go back to the trial judge.

A couple weeks ago, in State v. Richarson, the panel, as expected, reversed the dismissal of the indictment in Jeff's case.  But it wasn't a cursory reversal:  the opinion offers an extended analysis of the issues that can arise in the context of the cold cases that are arising frequently.  And that's important, because the panel in Richardson is the same one that's going to be deciding Jones on the remand from the Supreme Court.  What's more, Judge Sean Gallagher, the author of the opinion in Richardson, was the author of the dissent in the en banc decision in Jones.

First, a quick run-down of the facts in the two cases.  In Jones, the woman alleged that Jones had raped her in the bedroom of his mother's apartment, with the mother sitting in the living and ignoring the woman's screams.  The woman went to the hospital and reported the incident to the police.  Although the police had the names of Jones and his mother, and the place where the rape allegedly occurred, they closed the investigation five days later after having failed to contact the victim on two occasions.

Richardson involved a 16-year-old- girl who went with Richardson to a party, then went across the street to his house where the rape allegedly occurred.  The girl reported the incident to the police, and provided full information about Richardson.  The police closed their investigation a few days later.

I think this is the first critical aspect of a pre-indictment delay case:  whether the police knew the defendant's identity at the outset.  It shouldn't matter, because that's part of the justification for the delay, which is supposed to be the second step. 

But I think the en banc decision in Jones was right in a sense:  due process, which is what a pre-indictment delay claim is based on, is an issue of fundamental fairness, and it's fundamentally unfair to try a man twenty years after the crime when you could have tried him right away.  Since the DNA proves the defendant and the complainant had sex, the only way to defend the case is to show the sex was consensual.  It's a lot harder to do that when any potential witnesses to the relationship are in the wind.

And whether that analysis is right or wrong, that's the way it's turned out.  There have been 35 cases on pre-indictment delay in the 8th in the past four years.  In the six which resulted in reversal (or affirmance of a dismissal), the defendant was identified at the time of the incident.

But while a botched investigation can be a critical factor, it's not going to make up for a complete failure to show any actual prejudice, and here's where things get complicated.  Gallagher had dissented in Jones because "Jones has no way of demonstrating to what his mother would or would not have testified."  That's in line with Federal cases, largely adopted by Ohio appellate courts, that proof of actual prejudice must be "specific, concrete, non-speculative, and exculpatory." 

But the Supreme Court specifically rejected that contention, and rather than adopting the Federal standard, instructed the appellate court to use the standard employed by the Supreme Court in its 1984 decision in State v. Luck.  In Luck, the State resumed a murder investigation some 16 years after it had closed it.  The defendant was claiming self-defense, and during the delay a witness she claimed was key - according to her, he'd been present at the time - had died.  The court found that, and several other items, constituted actual prejudice.  It's hard to see a whole lot of daylight between Luck and Jones.

Gallagher acknowledges that the Supreme Court's opinion in Jones does not require that a defendant show what the missing witness would have testified to, but goes on to state, "a defendant cannot rely upon broad assertions of missing evidence or an unavailable witness to establish prejudice."

I think that's correct.  Any missing evidence is potentially exculpatory; one could argue that a long-destroyed 911 call could have shown the alleged victim to be calm and composed, inconsistent with a claim of having just been raped.  Richardson's basic claim was that he couldn't remember who was at the party he took the girl to before the incident; those witnesses could have testified that the two were amorous, making a claim of consensual sex more likely.  That's probably better than the missing 911 call, but it falls short of the situation in Luck and Jones, where witnesses to the actual incident are now unavailable.

For right now, it seems that the "gold standard" for pre-indictment delay is an aborted investigation and a dead witness who was at the scene of the alleged crime.  We'll have to await the outcome of Jones to see whether I'm right about that, and how far - and whether - it goes beyond that. 

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