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A tale of two cases

Demetrius Jones was charged with a rape that had occurred twenty years earlier.  Although the victim identified him by name and address, the police did zero investigation, and closed out the file a week later.  The victim had said that Jones' mother was in the apartment where the incident occurred.  By the time he was indicted, his mother had died.

Oscar Dickerson was charged with a rape that had occurred twenty years earlier.  According to the victim, a car with Dickerson and two other males approached her while she was walking home.  She got in the car, but the driver took her to a hotel, and dropped her off with Dickerson and the other man.  They took her to one of the rooms and raped her several times.  The police didn't believe her story, and dropped the investigation.  By the time Dickerson was indicted, the driver of the car had died.

In both cases, the 8th District found prejudicial pre-indictment delay.  Both cases went to the Supreme Court.  The court clarified the standard for determining actual prejudice in Jones, and sent it back for reconsideration in light of that standard.  Although it originally declined jurisdiction in Dickerson, it later vacated that decision and sent that one back, too, for reconsideration in light of Jones.

Two weeks ago, the 8th issued new decisions in both.  Dickerson won; Jones lost.

That's not the only difference.

The issue in both cases is whether the deaths of the two witnesses caused the defendants actual prejudice.  In Jones, the State had argued for the standard used in Federal courts:  the lost evidence must be "concrete, exculpatory, and non-speculative."  In other words, the defendant has to show precisely what the missing witnesses would have testified to.

The court specifically rejected that, but the standard it left was somewhat vague.  The key line was that the

proven unavailability of specific evidence or testimony that would attack the credibility or weight of the state's evidence against a defendant, and thereby aid in establishing a defense, may satisfy the due-process requirement of actual prejudice.

Obviously, that's heavily fact-dependent, and the Dickerson opinion spends some 25 paragraphs of the opinion analyzing Jones and applying the facts.  It's a close call, but the majority concludes that the driver would have been a key witness:  while he was not at the hotel, he could have testified as to what occurred in the three hours from the time the trio picked the girl up to the time he dropped them off.

The Jones court comes to a different conclusion, dispensing with Jones' claim of prejudice in a tidy seven paragraphs.  It doesn't really address the fact that the mother had died, instead relying on the victim's claim that Jones' brother was also present.  In the majority's view,

it is conceivable that the mother's testimony would have been cumulative to other evidence available at the time of the indictment. For this reason, Jones has not shown that the loss of his mother as a potential witness would minimize or eliminate the impact of the state's evidence and bolster his defense.

There are several problems with that analysis.  First, there's some indication that the "brother" was the mother's, not Jones'.  Second, while there are cases which have held that a dead witness doesn't constitute actual prejudice where other witnesses are available to testify to the same events, the key word is "available":  in those cases, the other witnesses actually testified.  Here, it's purely speculative to suggest that the mother's testimony would indeed have been cumulative.  Finally, the mother could also have testified to the relationship between Jones and the woman, which again might prove inconsistent with a claim of rape.  There's no indication that the brother, whosever it was, could have provided similar testimony.

There's one other major difference in how the two cases were handled.  In Dickerson, the parties filed supplemental briefs after the remand.  In Jones, I asked for leave to file a supplemental brief.  (I'd handled the case in the 8th and in the Supreme Court.)  The State filed a response, agreeing that "there are critical issues in this case which should be clarified before this Court issues an opinion."  The court referred the motion to the merit panel, and denied it as moot on the same day it issued the opinion.  Well, yeah, at that point, I guess...

This wasn't a simple reversal by the Supreme Court on a clear point of law, where the appellate court was left with nothing else to do but follow what the superior court had held.  The Supreme Court in Jones clarified the standard to be used in determining actual prejudice.  As indicated by the two decisions, that's not a simple task.  The appropriate standard should have been addressed by both parties.  I'm not going to suggest that the Jones court would have benefitted from whatever penetrating insights I or the prosecutor might have had to offer, but that's the way the appellate process is supposed to work. 

In an odd twist, I've just been appointed to handle Dickerson's case.  (Erica Cunliffe, the public defender who'd represented him so successfully, had to withdraw because her office had a conflict.)  The State's filed a motion for reconsideration, which I have to reply to; I'm guessing it will be denied, and the State will then appeal again to the Ohio Supreme Court.

Maybe they'll let me file a brief.

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