Making the Right Record to Keep Your Win on Appeal
By: Megan Patituce
Attorneys have been getting their client’s cases dismissed based on pre-indictment delay and it’s been an awesome streak. Three cases over the past year were wins for the defense at the trial level on this issue. State v. Seiple, 2020-Ohio-1266 (Mar. 31, 2020); State v. Willingham, 2019-Ohio-1892 (May 16, 2019); State v. Hines, 2019-Ohio-5039 (Dec. 9, 2019).
The most recent was Seiple’s. State v. Seiple, 2020-Ohio-1266 (Mar. 31, 2020). Seiple’s attorney must have been excited about it, until his win got reversed. Why? The record was just not there. Deciding in Seiple’s favor based in large part on the judge’s own recollections about an in-chambers conversation, the lack of record essentially left the Fifth District with nothing to review. That is unfortunate for Seiple, who is now facing a double-decayed-delayed indictment. Say that three times fast.
Tongue twisters aside, the Seiple decision really does stand for an important principle for my litigious brethren: Make a record, be specific. That is how you keep your win on appeal. Looking at the two other trial wins, it is easy to see why they both reflect this principal. State v. Willingham, 2019-Ohio-1892 (May 16, 2019); State v. Hines, 2019-Ohio-5039 (Dec. 9, 2019). In both, the attorneys argued that their clients were prejudiced based on years of delay. Both attorneys made phenomenal records; taking testimony about potential evidence, and explaining why each piece would support the defense. Notably, some of what they argued was speculative. While that does not normally fly to get a win, it can in preindictment delay cases.
But that is only when the attorney is able to be specific, adduce the right testimony, and articulate what evidence could have been there but just isn’t thanks to the state. The takeaway? Get testimony, articulate, and proffer what the trial court will not let in. Make the record so your client keeps the win on appeal.