Saturday’s Quick Clicks…

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  1. Docile Jim Brady – Columbus OH 43209

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

    Brown v. State, 2006-Ohio-1393
    Court of Appeals No. L-05-1050
    Trial Court No. CI-02-4991
    Danny Brown-ant v. State of Ohio-ee
    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

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