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What's Up in the 8th

A traffic stop found Samson Primm in possession of a few grams of marijuana, but he hires a lawyer and files a motion to suppress the stop.  On the day of trial, the City asks to dismiss the case.  Primm objects, and insists that he wants to go ahead with the motion to suppress.  The judge dismisses the case anyway, and Primm appeals. 

That's a lot to go through on a minor misdemeanor.  But there was more at stake than a little weed.

When they searched the car, the cops also found $100,000.  They took the money, and Primm wants it back.

He's not likely to get it.  Ohio's laws on forfeiture are pretty stiff, but Federal laws aren't.  The Feds have also created a procedure called adoptive forfeiture:  if the local cops give the money to the Feds, the defendant has to go through the Federal procedure - hire a lawyer, sue in Federal court, and bear the burden of proving that it wasn't acquired through the commission of a crime.  Ohio law does prohibit the locals from using adoptive forfeiture for amounts under $100,000, but Primm makes the cut there.

So in Cleveland v. Primm, gets to decide whether a judge can refuse to dismiss an indictment or complaint at the prosecutor's request.  There's a good discussion of that, but the upshot is that it's reviewed for abuse of decision, and there are no areas where that standard is more deferential than the judge's decisions as to the management of his docket or his courtroom.   As a practical matter, about the only time a judge should deny a motion to dismiss is if he believes that the defendant paid someone to do that.

As for Primm's argument that he needs to keep the case going so he can file the motion to suppress and, if that's granted, use it to get his money back in Federal court, the panel notes that the Federal court has already denied relief, finding that Primm lacked standing to assert a claim for the money.

And that last line explains just why Primm is working so hard for the money.  I'm betting that there are other people wanting that $100,000 back, and Primm's a lot more worried about them.

In State v. Young, Young is appealing his conviction of raping a young girl back in 1993.  Nineteen years later, the cops got a hit on a DNA profile from the rape kit, but the suspect wasn't identified.  The State indicted the DNA profile, which is later determined to belong to Young, so the State amended the indictment to name him. 

Didn't the 8th District hold in State v. Gulley a couple years ago that the State couldn't indict a DNA profile?  Well, yes, but in Gulley the State knew Gulley's actual identity before they indicted the profile.  Here, they didn't.  I was surprised to find that indicting a profile has been upheld by courts throughout the country.  Still sounds kinda hinky to me, but I'm guessing few appellate panels will be impressed by an argument that "it sounds kinda hinky to Bensing."  Feel free to quote me anyway.

Young also claims pre-indictment delay, and he points to what seems to be actual prejudice:  because of the delay, he can't find a witness to show that he was working the day of the crime, and the company he was working for has closed, so he no longer has access to their employment records.  That's nice, but if the DNA test shows a 1 in godzillatrillion chance that it's not your sperm in the girl's vagina, an alibi defense isn't going anywhere.

That it would have gone somewhere, if not for the woeful incompetence of the defense attorney, is the theme in State v. JonesJones' petition for post-conviction relief contends that his significant other would have provided an alibi for his aggravated murder charge if not for the attorney's aforementioned incompetence in failing to call her.

But whether to call a witness falls squarely within the rubric of "trial strategy and tactics," the panel says.  It approves of the judge denying the petition without a hearing, because there was overwhelming evidence of the defendant being at the scene at the time of the crime.

Besides, have you ever seen a case where a family member of significant other provided an alibi defense that a jury actually believed?  You'll have the defendant ID'd by ten eyewitnesses, DNA evidence, cell phone data, and surveillance video all placing him on the scene, and then you bring Mama in to testify that he stayed home and watched TV with her all night. 

State v. Wallace raises another ineffective assistance claim, and goes into the big file labeled No Good Deed Goes Unpunished.  Wallace is charged with numerous counts of child rape, GSI, and kidnapping, exposing him to a prison sentence which would expire a few weeks before the sun went supernova.  His attorney gets him acquitted of everything except a solitary count of GSI, resulting in a one-year prison sentence.

But that one year prison sentence is all the fault of the woefully incompetent defense attorney, because he didn't exercise a peremptory on a juror who was not only a police officer, but a rape victim herself.

Ballsy move, I'll admit.  I once had to try a case where the evidence was overwhelming my client had stolen money from several Catholic schools, and I left a nun on the jury, figuring that if she could find it in her heart to forgive (more importantly, to acquit) my client, the other jurors would be quite comfortable doing that, too.  Maybe this attorney was thinking along the same lines.

Worked out as well for me as it did for him,  but jury selection is pretty much strategy and tactics, too, especially in the use of peremptories.  Wallace relies on a case where the lawyer was found ineffective for not using a challenge for cause, but that's not the same thing.  It doesn't help that the juror did an excellent job rehabilitating herself.

And it certainly doesn't help Wallace that, after all, this same woman sat on a jury which acquitted him of all those nasty rape and kidnapping counts.


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