Mimesis Law
25 March 2017

The Effect of Cuyahoga County’s Uncharged Sexual Assault Cases

February 15, 2017 (Fault Lines) — The headline of the article certainly makes the Cuyahoga County Prosecutor’s Office’s failure to properly track certain sex cases sound like a really big deal:

Prosecutors uncover dozens of uncharged juvenile cases, including rape

It’s a terrifying idea for most people, and not just law and order types, that prosecutors would fail to charge rapists. If any sorts of cases should require special attention to insure culpable people are charged without excessive delay, it’s rape cases. To understand the issue here, however, it’s important to remember it is one of timing rather than anyone actually getting away with anything. These cases aren’t really that old:

Cuyahoga County Prosecutor Michael O’Malley said his office has uncovered dozens of sexual assault cases in the office’s Juvenile Division that sat dormant on the desks of assistant prosecutors for months and, in some cases, years.

Three prosecutors were forced to resign last week after a team of lawyers found more than 70 rape and sexual assault cases dating back to 2014. The prosecutors failed to track the cases, and no charges were filed, O’Malley said.

In many jurisdictions, months-long or even years-long delays in cases involving alleged sex offenses aren’t unusual. When someone makes a credible allegation, there’s physical evidence, and police contact the suspect and immediately get a confession, those suspects are typically taken into custody and charged right away. It would be a terrible miscarriage of justice for prosecutorial neglect to cause a guilty person to go free under those circumstances.

In cases where there’s no confession or weak evidence overall, though, it often just ends up on a detective’s caseload or even the prosecutor’s caseload for further investigation. That seems to be what happened in at least one case:

Driscoll started looking into the cases that had been moved to “inactive” status, and found that, while many were duplicate files, others involved rape, aggravated robbery and felonious assault reports that should have been fully investigated. Some of the reasons prosecutors gave for moving the cases to inactive included that the victim or the victim’s parents didn’t answer a phone call, Driscoll said.

It’s not like police departments put every guy they have on those cases; they’ve got much easier and more profitable cases, things like DUI and drugs, to investigate. Prosecutors have to deal with those too. We haven’t legalized much lately, so the workload can be crushing. If it’s a weak sexual assault case that needs a confession or more information from the victim or the victim’s parents to make it work, there may just not be enough time to keep up with that if people aren’t entirely cooperative. That can be a problem even where there isn’t egregious prosecutorial laziness at play.

Furthermore, it’s unclear from the article why each of the cases were being tracked rather than actively charged in the first place, but in many of them it’s likely because prosecutors were rightfully waiting on something. A lot of those cases might have been pending now even if prosecutors had been diligent. Maybe there are still lab results pending. Those labs are inundated with drug and DUI-related testing too, and things like violent and sex crimes usually don’t do so well in a competition for precious lab resources. Or maybe the defendant or an important witness is just missing.

If you think that everyone drops everything and all the best guys, from the cops to the lab technicians to the prosecutors, focus on solving a serious sex crime whenever a time-sensitive one crosses their desk, you’ve clearly never experienced how things really work. At every level, different people are assigned to do different things. They do it at their own pace, which is largely determined by the caseload they carry.

If that results in months or years of delay, then that’s what happens. Maybe everything was ready to go in every one of those uncharged rape cases, but it’s just as likely that some would still be dormant even if prosecutors had done their jobs.

It’s important to keep in mind that, for the scariest and most serious sex crimes in Ohio, the statute of limitations almost certainly hasn’t run yet. Some of the uncharged juveniles may face charges as adults now. Some may still be juveniles. In fact, it may be that every single person against whom there is sufficient evidence for charges will still face charges.

There are, sadly, some real negative consequences:

Some cases included victims as young as 3 years old, suspects who had already confessed their crimes and suspects who later went on to commit more crimes, O’Malley and assistant prosecutors Joanna Whinery, Jennifer Driscoll and Gregory Mussman said Monday in an interview.

The age of the victim shouldn’t matter, especially considering that many of these cases might not be supported by enough evidence to proceed, but the fact suspects who’ve confessed haven’t been charged could be troubling. If prosecutors were just waiting for those confessions and ultimately got them but did nothing, there might be guilty, dangerous people still on the streets. Indeed, if there had been enough evidence to charge the suspects who went on to commit more crimes, prosecutors’ failure to do so directly resulted in harm to those new victims. It’s about the worst possible thing that could happen.

There were also computer issues that might cause an even bigger problem in the long run:

Those prosecutors also uncovered more than 1,900 additional cases that assistant prosecutors in the juvenile division may have incorrectly categorized as “inactive” in the office’s computer system since 2012. O’Malley, who took office just over a month ago, is now examining new ways to track the cases that get handled in the juvenile division.

Like with the cases that sat dormant on prosecutors’ desks, it may be that the cases mistakenly marked “inactive” in the computer never would’ve been charged anyway. Some of them would have been, however, which could be a major problem.

There’s also a little bit of irony involving the guy who played a part in the scandal:

Last month, Cleveland Mayor Frank Jackson appointed Deskins to a newly created position in his cabinet, Chief of Prevention, Intervention and Opportunity for Youth and Young Adults.

Deskins told cleveland.com Monday night that he couldn’t respond to the way the cases were handled without the details of each case, but said he was not aware of any delays or mishandling of cases while he headed the juvenile division.

He pointed out that there were two levels of supervisors underneath him who would have directly dealt with cases on a daily basis, but stood by the work the office did.

“We did an aggressive job,” he said.

Having dealt with big prosecuting agencies, it doesn’t seem inconceivable at all that Deskins had no clue about the mishandling of cases. He may have had two underlings who really did the real work. It also isn’t implausible that they just served to insulate him from the consequences of his mismanagement by obscuring whether he actually knew what was happening. We will likely never know the whole truth.

It also could be true that they did an aggressive job. The office probably went after certain defendants who didn’t pass under their radar with great gusto. There were no doubt some defendants who were subject to the full crushing weight of the system and felt like they were treated unfairly. Some of those defendants probably did things far less serious than their lucky peers who escaped notice.

Unfortunately, that’s just the way things always work. Prosecuting agencies routinely act like an angry but lazy and ineffective guard dog, chomping onto the leg of the slowest-running person in front of their face and refusing to let go while others sneak past.

No matter how you look at it, though, there’s still some irony to the fact a guy who let all these juvenile cases slip by now has a cabinet position involving prevention, intervention, and opportunity for kids. How the office let some of them slip by highlights the incompetence:

The Cleveland Rape Crisis Center reached out to prosecutors during O’Malley’s first week in office for updates on several sexual assault cases involving juveniles.

A victim advocate at the rape crisis center also asked Whinery for an update on approximately 15 cases. Victims had become concerned that their cases had “fallen through the cracks,” Whinery said.

When Whinery, Driscoll and Mussman started looking into the cases, they found the assistant prosecutors never fully reviewed them for charges, the lawyers said.

Where it really was just a failure to sit down review a file, there’s no excuse. That seems to be the case in some of these instances, including one where prosecutors filed charges and took out arrest warrants the same day they finally looked everything over, and another where cases were entered in the database but sat for eighteen months with no follow-up. Still, that’s unlikely to be what happened in every single case, and it doesn’t mean anyone is necessarily getting away with anything.

These uncharged rape cases as a whole are certainly newsworthy, but the primary reason why may be because of the potential havoc it could wreak on the system:

The prosecutors said their review of the cases could lead to hundreds of new charges being filed in the coming months.

Again, it’s likely not a matter of the guilty walking free, but of justice delayed. Courts all over the country, and probably in Cuyahoga County too, have a tough time keep up with cases as it is. Flood the courts with hundreds of new cases and you’re burning through limited resources at an even faster rate. Those new defendants will have hearings that are going to crowd dockets. They’ll need lawyers too, which will stress the indigent defense agencies.

The worst effect of sitting on all those cases and then suddenly filing them all at once might be the toll it takes on the system as a whole.

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