Procrastinated Prosecution leads to Happy Holidays
By: April Campbell
As the New Year begins, we take time for resolutions and personal growth. And, we turn our thoughts to pre-indictment delay.
Kidding. Nobody thinks about pre-indictment delay during the holidays. Nobody but the Third and the Eighth districts, that is. This holiday season, these districts within days of each other, bestowed on two lucky individuals the freshest start that anyone being accused of a crime can receive: freedom from prosecution.
And it's all thanks to a little thing we call pre-indictment delay. Take Hawkins for example. State v. Hawkins, 2019-Ohio-5133 (Dec. 12, 2019)
. The State took almost six years to prosecute Hawkins. And when it finally did, it sent him a summons to a place he wasn’t even at. Lo and behold, Hawkins did not appear at an arraignment he never knew about, resulting in his arrest—after the statute of limitations ran. Failing to move to dismiss Hawkins’s case on statute of limitations grounds is ineffective assistance, says the Eighth District. The takeaway: if the State takes years to prosecute your client, check to see if the State exercised ‘reasonable diligence’ in getting your client to court in time. Happy Festivus to Hawkins.
But a Happy Festivus also belongs to Hines, whose trial attorney artfully lawyered Hines’s pre-indictment delay motion and won. State v. Hines, 2019-Ohio-5039 (Dec. 9, 2019).
This is what prosecutors should learn from the case: taking a six-year-long slack in prosecuting someone for something you knew about the whole time just doesn’t cut it. This is what we learn: if years pass before the State prosecutes your client, specify in your motion to dismiss every single bit of evidence that is now lost but could have been obtained. And, explain why its absence hurts your client.
Happy Holidays to our OACDL members. Or as Morty Seinfeld once said: “may all of your grievances be aired, and your feats of strength tested.” -Seinfeld.