What's Up in the 8th
I know the juror who got thrown off of Cornelius Lynch's trial.
Lynch was on trial for child rape, and the jury'd been out a while, when the judge got a note from the foreperson, indicating that a juror was
exhibiting very serious signs of mental or emotional problems. He will not let anyone else speak, constantly interrupts, makes threats, slurring his words and admitted, "I'm having problem with my head."
After further discussions with the jurors, two of whom expressed fear of remaining in the room with the juror, and the juror himself, the judge decided to remove him. The alternate had been excused, and couldn't be found, so the judge declared a mistrial. Lynch was convicted at the second go-around, and right after that, I got contacted.
Not by Lynch or his family. By the juror. He attached a transcript of the hearing on his removal, and a detailed analysis of the case (nine typewritten pages, single-spaced), supplemented by extensive case law, arguing that there was no need to remove him, and that therefore there wasn't a manifest necessity for a mistrial, so double jeopardy barred Lynch's retrial.
The 8th District decided otherwise last Thursday, and on Friday I got another extensive email from the juror, detailing how Jeff Gamso, one of the top appellate lawyers in the state - Jeff's sat at the Big Boys table in the Supreme Court in D.C. a time or two - had screwed up the case, and complaining that Gamso hadn't replied to any of the seventeen emails the juror had sent him.
That doesn't mean the judge can throw anybody off a jury. There's case law which holds that if the other jurors' complaints stem from their disagreement over the possible verdict, the judge can't even investigate that. But the record really doesn't support that, and the other problem is that the defense lawyer at one point suggested a mistrial was necessary, and didn't object to it when it was granted.
Lynch seemed to have a fairly good case for pre-indictment delay, though. The 12-year-old daughter of Lynch's girlfriend accused him of raping her in 1994, but recanted two weeks later. The cops finally sent out the rape kit eighteen years later, and got a hit on Lynch. The girl's mother died before the trial, and Lynch claims that's actual prejudice, because she would have testified that the girl had fabricated the story.
But there's a couple of catches here. First, even if you establish actual prejudice, the prosecution gets a chance to show the delay was justifiable, and that's what the judge found: the cops closed the investigation when the girl recanted, and reopened it when the DNA results came back.
And those results also puts the kibosh on the notion of the mother selling a fabrication scenario. When your sperm is found inside a 12-year-old, nobody cares about Mama claiming it didn't happen.
I had an oral argument on a search case last week, one involving anonymous tips, and as I waxed passionate about the protection of our privacy interests, one of the judges leaned over and commented drily, "You sound like you believe the 4th Amendment still exists."
Anonymous tips are the subject of State v. Rieves, too. The cops get a tip from Crime Stoppers that Rieves lives at a certain address, so they do a trash pull and find torn baggies consistent with drug trafficking. That gets them a search warrant, which gets them drugs, which gets Rieves a twelve-year prison sentence.
There are three "types" of tipsters: the identified citizen informant, the confidential reliable informant, and the anonymous informant. The latter can be deemed reliable in only two circumstances: if the tip is sufficiently "rich in detail" to show that the informant has inside knowledge of the suspect's activities, or if the non-innocent factors in the tip are corroborated by the police. But the police can't get a warrant on me just because someone makes an anonymous call, telling the cops my address, and adding the phrase, "and he deals drugs."
Not to give anybody any ideas.
The trash pull is a bit of problem, too. A few years back the 8th held that a trash pull alone wasn't sufficient to show probable cause. The Supreme Court reversed that, but only because it found there were additional factors establishing probable cause. But we have some interesting alchemy here: while the anonymous tip and the trash pull might not separately do anything, together the pull corroborates the tip, and the tip provides something in addition to the pull.
It's an interesting result - 0 + 0 = 1 - but it's probably the correct one. Probable cause is determined by the totality of the circumstances, and when the cops get an anonymous tip, then do surveillance or a trash pull which corroborates evidence of drug trafficking, then that's enough.
The defendant in State v. Eaddie complains that the judge was mean to him, because she "badgered," "mocked," and "demeaned" him at sentencing. The court finds, in accordance with its previous case law, that the statute on disqualifying a judge (affidavit to the Supreme Court) "provides the exclusive means by which a litigant may claim that a common pleas court judge is biased and prejudiced," and that
A court of appeals has no authority to determine a claim that a trial judge is biased or prejudiced against a defendant and no authority to void a trial court's judgment based on a claim that the trial judge is biased or prejudiced.
On the off chance that somebody from the 8th is reading this post, please stop saying this, because it isn't true. An affidavit to the Supreme Court is the only way to remove a judge for bias, but it has nothing to do with the ability to review whether a judge was biased: as the opinion itself goes on to note, the Supreme Court (and countless others) have recognized that "a trial before a biased judge is fundamentally unfair and denies a defendant due process of law." In fact, just three years ago the 8th acknowledged that "If the record evidence indicates that the trial was infected by judicial bias, the remedy is a new trial."
That doesn't do Eaddie any good; the test for judicial bias is whether the judge shows a "deep-seated favoritism or antagonism that would make a fair judgment impossible." And telling someone he has a "terrible record" when he has a terrible record doesn't make the cut.
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