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1. Docile Jim Brady – Columbus OH 43209 | April 7, 2012 at 2:55 am | Reply

   DJB: So much for fairness in Lucas County.
   At least Franz Kafka killed “K”

   Brown v. State, 2006-Ohio-1393
   IN THE COURT OF APPEALS OF OHIO
   SIXTH APPELLATE DISTRICT
   LUCAS COUNTY
   Court of Appeals No. L-05-1050
   Trial Court No. CI-02-4991
   Danny Brown-ant v. State of Ohio-ee
   DECISION AND JUDGMENT ENTRY
   Decided: March 24, 2006
   ▼ Pg 12 ▼
   William J. Skow, J., dissents
   SKOW, J.
   {¶ 27} I respectfully dissent from the majority opinion insofar as it finds that
   appellant, Danny Brown, failed to raise a genuine issue of material fact with respect to
   two elements of his claim for wrongful imprisonment, specifically: (1) that no further
   prosecution was attempted or allowed for the subject conviction or any act associated
   ▼ Pg13 ▼
   with that conviction; and (2) that the offense of which the petitioner was found guilty was
   not committed by the petitioner or was not committed at all.
   {¶ 28} Courts have a duty to construe statutes to avoid absurd or unreasonable
   results. State ex. Rel. Webb v. Bliss (2003), 99 Ohio St.3d 166; State ex rel. Sinay v.
   Sodders (1997), 80 Ohio St.3d 224, 232. R.C. 2743.48 requires, in part, that a petitioner
   demonstrate that no further prosecution be attempted or allowed for the subject
   conviction. It is my opinion that, in order to best serve the interests of justice, the terms
   “attempted” and “allowed” should be read entirely disjunctively, with the effect that the
   statute is deemed satisfied when a petitioner demonstrates one or the other circumstance,
   and not necessarily both. Without this construction, those unjustly convicted of murder —
   the most serious of offenses, carrying the severest of punishments — would never be
   permitted to recover under the statute, because there is no statute of limitations
   circumscribing the time for prosecution of this offense. Alternatively, recovery would
   depend upon the whim of a prosecutor to declare which claimants would no longer be
   prosecuted and which would remain as perpetual, but remote, suspects. I simply cannot
   countenance such an unreasonable interpretation and unjust result.
   {¶ 29} The majority, however, not only requires a claimant to demonstrate that
   prosecution would be neither “attempted” nor “allowed,” but accepts without question the
   state’s definition of “ongoing investigation” to establish whether a prosecution will be
   attempted. As the majority points out, the state did present evidence (in the form of the
   prosecutor’s self-serving affidavit) that there was an “ongoing investigation” into the
   ▼ Pg 14 ▼
   crime and that appellant continued to be a suspect. Nevertheless, when asked if “there is
   always the theoretical possibility that new evidence may come up,” a Cold Case Unit
   police detective answered, “You bet.” The detective then readily acknowledged that the
   investigation might never officially end, both in theory and in practice. Thus, the
   majority accepts the state’s definition of “ongoing investigation” to include passive
   waiting for any evidence in any case that has ever been opened, regardless of whether any
   actual, active “investigation” is occurring.
   {¶ 30} Moreover, the majority, in its apparently wholesale acceptance of this
   evidence, has utterly failed to take into account that by December 30, 2004 (when the
   trial court issued its opinion and judgment entry granting summary judgment in favor of
   the state), nearly four years had elapsed since the DNA testing proved that the semen
   collected from the victim did not belong to appellant. At no time during that four-year
   period did the prosecution charge appellant with any offense in connection with Bobbie
   Russell’s death. We note that even as of today, approximately five years after the DNA
   testing, no new indictment has ever been handed down against appellant in connection
   with that case. This lack of activity on the part of the prosecution leads me to the
   inescapable conclusion that there was, in fact, no “ongoing” investigation being
   conducted. On that basis, I conclude that there is a genuine issue of material fact as to the
   question of whether further prosecution was really attempted in this case, or ever will be.
   {¶ 31}With respect to the second element, that appellant failed to establish that he
   did not commit the offense of which he was found guilty, I would hold that, in this case,
   ▼ 15 ▼
   the DNA test results alone are sufficient to overcome the state’s motion for summary
   judgment. Under the state’s own theory, which is strongly supported by the evidence and
   upon which appellant was originally convicted, a single person committed the rape and
   murder of Bobbie Russell. The DNA testing definitively identified convicted murderer
   Sherman Preston as the source of the semen. In so doing, it conclusively ruled out
   appellant as the rapist. In light of the foregoing, I strongly disagree with the majority
   opinion that the absence of a self-serving affidavit on the part of appellant is
   determinative of whether appellant alleged sufficient facts to show that he did not commit
   the offense of which he was originally convicted.
   {¶ 32} Because I conclude that issues of material fact remain in dispute regarding
   the elements of appellant’s claim under R.C. 2305.02 and R.C. 2743.48(A), I would
   reverse the trial court’s grant of summary judgment and remand for additional
   proceedings.