What's Up in the 8th
The Supreme Court's going to hear oral argument in State v. Jones, the en banc decision from the 8th District on pre-indictment delay, on April 20. It's also holding another case from the 8th on that subject, which will be probably be determined by the outcome in Jones.
I've got a feeling that the 8th District's decision last week in State v. Powell is on its way there, too.
In December of 1994, Powell's wife, E.P. reported that Powell had assaulted and raped her. Powell was arrested that day, but E.P. met with the city prosecutors and told them she didn't want to pursue charges. They issued a "no papers" ruling and closed the file.
And there it sat until 2013, when the State finally submitted E.P.'s rape kit for testing, and it came back with a CODIS hit for Powell. He was indicted five days before the statute of limitations ran.
A lot had happened in the meantime. E.P. could still remember the incident, but virtually none of the details, such as whether the alleged rape was vaginal or anal. Powell couldn't even remember the incident: he suffered from mental issues for the past two decades, and has been diagnosed with schizophrenia. The judge dismissed the indictment, finding that the delay was unjustified, and that Powell had demonstrated actual prejudice "by identifying two witnesses, the alleged victim and the defendant himself who suffers from an undisputed mental illness, and neither witness can recall sufficient details to either prosecute or defend the over twenty-year-old allegation."
The law on pre-indictment delay first requires a defendant to show that he's been actually prejudiced by the delay. If he does, then the burden shifts to the State to justify the delay. The Jones court will have to resolve three issues:
1. What's "actual" prejudice? There's a lot of case law holding that "actual" prejudice must be "concrete" and "non-speculative," but it's not clear what that means; in most of the cases, the defendant couldn't prove any prejudice. Jones claimed prejudice from the fact that his mother, who the complainant placed at the scene of the alleged rape, had died two years before he was indicted. The State argues that this isn't enough because we don't know what the mother would have testified to. Of course, the reason we don't know what the mother would have testified to is because the police did zero investigation: despite the complainant having identified both Jones and his mother, and giving the police the address where the incident occurred, the detective interviewed neither, closing his file five days after he got it when his two desultory efforts to contact the complainant went for naught.
Normally, a defendant's claim to failed memory doesn't do him any good; the courts have consistently held that faded memories are accounted for by the statute of limitations, and aren't a defense to any prosecution brought within that time. But Powell's claim that his was due to mental illness, rather than the mere passage of time, might have some traction. That depends on the answers to the next two questions.
2. What's an "unjustifiable" delay? Jones has an easy argument here: the police completely dropped the ball on the investigation, and when the CODIS hit finally emerged, it told the police nothing they didn't know on the date the incident occurred: that Jones and the complainant had sexual activity.
But the delay in Powell was caused by the woman declining to prosecute. On the one hand, the State can hardly prosecute a case without the victim's cooperation. On the other, they do it every day: I'm trying to think of the last time I had a domestic violence dismissed because the woman didn't want to testify. In at least one pre-indictment delay case I know of, the complainant testified that the reason she chose not to pursue the case was because of the dismissive way she was treated by the police. And she's not alone; to be frank, the attitude of the Cleveland Police Department's sex crimes unit back in the 90's bordered on the misogynistic, particularly toward black women.
3. Is the justification for the delay balanced against the prejudice? There's a tendency to think of prejudice and delay being too distinct steps, but there's also a lot of case law which holds that the two have to be balanced against each other, at least after the defendant establishes prejudice. There's some basis for that. The core concept behind the pre-indictment delay doctrine is due process: is it fundamentally fair to try the defendant? Rather than look at each stop as a binary question - there is or is not prejudice, the delay was or was not justified - a "big picture" analysis of examining both in context seems more in keeping with the core concept.
The dissent in Powell makes a credible argument that more medical evidence should have been presented on the issue of whether Powell's schizophrenia did indeed affect his memory, apart from the mere passage of time. And that's where the justification for delay and its balancing against prejudice could get interesting. Powell's schizophrenia was apparently not a recent development: the opinion indicates a 20-year history of mental illness. What if it prevented him from remembering the incident six months or a year after it occurred? Would that have been an unjustifiable delay?
Jones presents some simple issues on pre-indictment delay. Powell indicates those issues can get murkier. We'll see what the Supreme Court does with Jones, and how that might affect Powell.
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