Eighth District: 11-Judge Panel Debates Pre-Indictment-Delay Claims that Lead to Dismissal of Rape Charges
Conflicting rulings in Cuyahoga County regarding indictments based on the long-delayed opening of older, untested rape kits led the appellate court there to have all of its judges weigh in on how to assess claims that other evidence lost over time prevents a fair trial.
In a 7-4 ruling with one judge abstaining, the Eighth District Court of Appeals recently affirmed the dismissal of charges against Demetrius Jones that were filed on the last day before the 20-year statute of limitations ran out. The court agreed with his contention that he would be prejudiced by the delay because his brother who can’t be located and his deceased mother are not available to substantiate his claim that he had consensual sex with the alleged victim.
The case was sent to the full court for an en banc ruling because the Eighth District found various three-judge panels within the Eighth District used different standards to determine if such claims of unfair delay were viable. The dissenting four judges argued the appeals court should use an “exculpatory evidence standard” when an indicted alleged offender claims it was unfair to wait so long to press charges. That standard requires the accused to prove the evidence lost or missing would actually benefit the defense and not be “mere speculation” that it would help.
The trial court dismissed the charges against Jones based on his delay arguments. The state appealed the decision, and the three-judge panel hearing the appeal wanted to make Jones prove he was prejudiced. However, the panel of judges asked the full court to hear the case after it determined the Eighth District used a lower standard in its October 2014, decision in State v. Mack. That appeals-court panel affirmed the dismissal of rape charges against Michael Mack, whose charges also came from rape-kit evidence tested nearly 20 years after the alleged crime.
In Mack’s case, the victim’s whereabouts were unknown at the time of the trial, but police located Jones’s allege victim when he was indicted. However, the victim did not cooperate with law enforcement after the incident occurred 20 years earlier.
Jones testified he and the victim knew each other and went to Jones’s mother’s house, where his brother also lived. The victim told investigators she wanted to leave, but Jones forced her to stay, locked her in a room, and forcibly raped her. Afterward, she went home and her mother called the police. She had a rape kit administered at a local hospital.
The police report and medical records identified Jones as her attacker, but no photos of her were taken at the hospital or by police. At the time of the indictment, the 911 tape of her call reporting the rape was not available. The police went to her home twice in the week after she reported the rape, but they were unable to locate her, and closed the case pending the victim coming forward.
Jones has an extensive criminal record, including 22 other felony cases in Cuyahoga County courts and DNA samples were obtained from him in 2005 and 2006. The county did not test the 1993 rape kit until September 2011, and returned it to Cleveland police in June 2012. The police waited until July 2013, to reopen the case and indicted Jones on Aug. 30, 2013, one day before the 20-year statute. (State lawmakers recently voted to extend the statute of limitations for rape to 25 years.)
Jones maintained the two had consensual sex, and that his mother and brother were in the house and could support his version of events.
Writing for the appellate-court majority, Judge Larry A. Jones noted the full court needed to decide whether to use the tougher “exculpatory evidence standard” or the lower standard that appears to stem from Ohio Supreme Court rulings and allow for dismissal based on “the concepts of due process and fundamental fairness.”
Judge Jones cited three Ohio Supreme Court cases based on the claim that long delay for indictment was an unconstitutional due-process violation. He wrote the Ohio high court followed the precedent of the U.S. Supreme Court to establish a balancing test to determine a due-process violation for preindictment delay. First, the accused must demonstrate there was unfairness caused by the delay and, when so, that unfairness must be weighed against the state’s reasons for delay.
In two Ohio Supreme Court cases, State v. Luck (1984) and State v. Whiting (1998), the court found no reason for the state to delay and dismissed the charges. In State v. Walls (2002), the invention of new finger print-detection technology was accepted as a reason for delay and the charges were upheld against the offender.
Judge Jones wrote this balancing test is more fair than the higher standard proposed, because in cases such as Jones’s, it would be “a near impossibility” for him to determine if the missing or unavailable evidence would work to his favor. Moreover, in this case, the DNA was not needed to prove the rape, because Jones admitted he had sex with the victim. He claimed he was innocent because it was consensual, rather than rape.
“In other words, the record here demonstrates that the state merely failed to take action for a substantial period. After this inaction of the state, requiring Jones to demonstrate that any missing evidence or unavailable witness testimony would have been exculpatory is simply violative of his due process rights,” he wrote.
Judges Patricia Ann Blackmon, Mary J. Boyle, Eileen A. Gallagher, Mary Eileen Kilbane, Anita Laster Mays, and Melody J. Stewart concurred in the decision.
In dissent, Judge Sean C. Gallagher argued the requirement of proof of actual substantial prejudice has been in place for more than 30 years and cited several cases from state and district courts across Ohio. He noted the General Assembly has extended the statute of limitations for crimes such as rape, and argued that forcing the state to prove delay doesn’t harm the accused and defeats the purpose of the extended time period.
Judges Frank D. Celebrezze Jr., Eileen T. Gallagher, and Tim McCormack joined the dissent, while Judge Kathleen Ann Keough recused herself.
State v. Jones, 2015-Ohio-2853.
Criminal Appeal From: Cuyahoga County Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 16, 2015
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