Criminal Pre-Trial Delay Leads to Dismissal

Ohio law is favorable to the State when it comes to Statute of Limitations, tolling of time, and pre-trial delay. The burden, even though technically shifted to the State in Motion to Dismiss for Pre-Trial delay, is often still on the defendant. A recent case of mine addressed the issue of pre-trial delay and highlights why everyone deserves a high-quality defense and why justice demands it.

In June 2017 my client was charged with F5 Escape, i.e., alleging he was arrested for a misdemeanor crime and escaped from police custody after his arrest. At arraignment and subsequent bond hearing (which was denied) I raised the issue of pre-trial delay which violated my client's rights guaranteed under the Sixth Amendment. I subsequently filed a Motion to Dismiss and had the matter set for a hearing. Prior to the hearing - and I must give credit to the prosecutor for reviewing the case and determining they could not justify the delay - the case was dismissed. So what happened that someone arrested for an alleged crime and then allegedly escaped custody would then have the case dismissed? It all started over 11 years ago.

In December 2005 my client was allegedly arrested for a misdemeanor for which he could have been jailed upon conviction for up to 6 months. Once arrested and in police custody, he allegedly escaped the police cruiser and was not able to be re-apprehended by the police. In January 2006 a complaint for escape was filed and a warrant for his arrest was issued. That warrant was not executed until late May 2017 and was indicted for escape in June 2017.

In the intervening 11 years, my client was arrested, indicted, and convicted on numerous other charges in numerous counties throughout the state. In all, he was convicted in at least two other counties of numerous felonies for which he served the better part of five years in prison. After his release from prison - while the escape warrant was still active - he was indicted on new state felony and federal firearms offenses which he was convicted of and served another five years in federal prison. After his release from federal custody - again while the escape warrant was active - he was again arrested, jailed, and released, on new charges, in the same county that had the active escape warrant. It wasn't until he was arrested for a failure to appear warrant on pending charges that he was finally served the 2006 warrant for escape.

So what's the problem - there was an active warrant for escape and now he was going to be accountable for the allegations against him. Luckily for all of us we have rights guaranteed by the United States Constitution and Ohio Constitution. Eleven years, with all the intervening arrests and imprisonments when the State could have easily brought the defendant before the court to answer for his crimes, was simply too long and prejudicial against the defendant's rights.

Eleven years of delay undoubtedly prejudiced – i.e, impaired the ability of the defendant to adequately to prepare his case and skewed the fairness of the entire system – leaving the only question for the court to determine if the delay was justifiable. Barker v. Wingo, 407 U.S. 514, 532 (1972). Generally, there are two scenarios that result in an unjustifiable delay as a matter of law – where the state acts intentionally to disadvantage the defendant and where the state ceases an investigation and later resumes its case based upon the same information. State v. Luck, 15 Ohio St.3d 150 (1984).

In this case, the Court did not need to make a determination regarding the eleven year delay. After laying out the evidence I intended to introduce at a hearing on this matter to the prosecutor, and he evaluated it, it was determined that the State could not sufficiently prove justification for delaying prosecution for 11 years. Subsequently, the indictment against my client was dismissed and he was released from custody.

Without investigating my client’s past, his prior convictions, developing a timeline of all the occasions the State could have brought him before the court for his alleged crimes but did not and, reviewing dozens of similar cases, my client may still be in jail with an escape charge.

All persons accused of crimes deserve this same level of representation. If you or someone you know has been charged with a crime, call the Nicodemus Law Office at 740-422-9280 or complete the contact form to schedule your consultation and protect your rights.

Police & Prisoners Sex Prohibited

As recent as January 2018, there were 35 states that permitted police officers can have sex with persons they have arrested and were in custody. “Permitted” might be the wrong adjective to describe the encounters but when the other 15 states describe sexual encounters between police and prisoners as sexual assault, it certainly isn’t prohibited.

In March the State of New York passed a law prohibiting sex between police officers and persons in their custody. In Ohio, sex between persons – even consensual sex – is illegal, and has been for years, if there is a power dichotomy between the persons. In 2014 the Eighth District Court of Appeals, in Cuyahoga County, upheld a sexual battery conviction of a probation officer that engaged in sex with a probationer.

Ohio Revised Code 2907.03 delineates sexual battery and includes numerous prohibitions between persons in authority positions and their subordinates. Health care professionals and patients, teachers and students, prison workers and prisoners, and police officers where the other person is in custody are all prohibited sexual encounters – even if all parties are adults.

In determining the probation officers committed sexual battery by engaging in sex with a probationer, the Court determined

R.C. 2907.03(A)(6) represents an exception to the general rule which permits sexual activity between consenting adults. As reflected in the committee comment, the section proscribes even voluntary sexual activity between an inmate and a person who has supervisory or disciplinary authority over the inmate. The purpose of the statute is to protect from sexual abuse those who come under the care and custody of the State. The statute is directed at those situations where the offender, through power conferred by the State, is able to coerce or force sexual activity by the misuse of that authority.

State v. Maresh, 2014-Ohio-3410, ¶ 41 (8th Dist. Cuyahoga)

Ohio Revised Code 2907.03 has effectively determined that a person cannot consent to sexual encounters with another person in certain situations.