What's Up in the 8th
A Cleveland municipal court arriving at the correct result in a bench trial seems more a matter of happenstance than design anymore. In Cleveland v. Mincy, the court pronounces itself dissatisfied by the defendant's decision not to testify. The judge questions the complainant after her testimony, then states that she has "similar questions for this young man, but he didn't testify ... I cannot find some questions I need answers to." "I'll take the Fifth Amendment for $400, Alex."
That gets reversed, and so does Cleveland v. Andujar, where Andujar pleads no contest and the court, without further ado, accepts it. That ado would include getting an explanation of circumstances sufficient to justify a finding of guilt, or obtaining a waiver of that explanation. The kicker is that there's not even a do-over: this is treated on appeal as insufficiency of the evidence, so retrial is barred by double jeopardy.
I continue to urge my appellate brothers, whose self-esteem takes a righteous beat-down every Thursday when the 8th District's decisions come out, to take appeals from municipal courts. You'll feel so much better about yourself.
A few years back, in State v. Jackson, the 8th reversed Jackson's rape conviction because the trial court allowed testimony by a social worker about her interview with the defendant, pursuant to a policy by CCDFS and the police, in which social workers go into the jail and interview defendants in child rape cases. I heartily concurred in the decision, finding the policy an outrageous violation of the5th Amendment. Only six Supreme Court justices disagreed with that view, so back comes the case for cleanup of the assignments of error the court didn't reach on the first go-around. Once bitten, twice shy, and the panel finds that whatever differences they might have over the hearsay rule, they are united in their belief that any such error is harmless.
State v. Kehoe is the 8th's latest take on pre-indictment delay. In 2001, Kehoe was accused of raping a 4-year-old boy, but in the interviews by the detective and a social worker, the boy claimed only that Kehoe touched him on top of his clothes, so no charges were filed.
Seventeen years later, the prosecutors revisit the case, and the boy now claims that he was anally raped. A defense investigator tries to track down the detective and the social worker, finding the former now lives in Atlanta, and the social worker left the agency without leaving a forwarding address. The trial court tosses it for pre-indictment delay, finding that the unavailability of the detective and social worker constitutes actual prejudice.
The majority decides that the pair isn't actually unavailable, relying on the definition of unavailability in EvidR 804(A). As the court admits, 804(A) deals with hearsay exceptions when the declarant is unavailable -- declaration against interest, former testimony, deathbed statements -- but nonetheless decides that it provides "guidance" here. Under 804(A), the proponent of the declarant's testimony must show that it has been "unable to procure the declarant's statement ... by process or other reasonable means." The majority concludes that Kehoe hasn't met that requirement.
The applicability of 804(A) to this situation is not at all clear. The rule protects the defendant's right of confrontation; if he is to lose that right, it stands the reason that the State has a high hurdle in showing that it has exhausted all efforts to procure the attendance of the declarant. Moreover, the government has vastly superior resources in finding a potential witness and procuring his attendance in court. The majority gives no explanation why that same standard should apply to defendants seeking to show that witnesses are unavailable so as to protect their due process right to dismissal for pre-indictment delay.
The saving grace of the majority's opinion is that it does not conclude that the witnesses were available, but instead determines that it is "premature" to decide that they were not, leaving open the possibility that the judge could still dismiss the case if the defense presented further evidence of its unsuccessful attempts to procure the witnesses' attendance.
In State v. Minarik, a 60-year-old male physician's assistant is charged with gross sexual imposition for touching a 20-year-old patient's breast, and claims that his lawyer was ineffective. The alleged misfeasance in this case is that on cross-examination of the medical board examiner who interviewed Minarik, counsel repeatedly elicited testimony that the examiner believed Minarik was lying.
The first problem is you're going to have a tough time showing prejudice when Minarik asked the patient to unclasp her bra for a second examination which he conceded was entirely unnecessary, during which he told the patient that she "could make a lot of money with these." (Pause for a collective "Eeeewwwww.") The second is that you're going to have a tough time arguing that the lawyer did a crappy job when the jury convicts the defendant of only a third-degree misdemeanor sexual imposition.
Finally, the man-bites-dog story of the week is the grant of a Rule 26(B) motion to reopen an appeal in State v. Hill. The case contains an excellent discussion of foreseeability in the context of involuntary manslaughter or felony murder. The court reverts to form in State v. Campbell, rejecting a 26(B) motion because it's filed three weeks late. Campbell claims it's the fault of the prison mailroom, and it's not a stretch to venture that the prison mailroom is not the best-functioning government agency around. But we can add "a courier's delay in delivery" to the list of things that don't constitute good cause for an untimely filing.
I started a list several years ago of what does constitute good cause. It's still blank.
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