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If you have a case in which the State took years to indict your client, look at the Fifth District’s newest case on prejudicial delay. State v. Erhardt, 2020-Ohio-5328, (Nov. 18, 2020).  

Couched in speedy trial terms, the case is really about prejudice.  It is noteworthy, first in that the Fifth has joined the Third and Eighth Districts in recently finding prejudice in unjustifiable prosecutorial delays. See State v. Hines, 2019-Ohio-5039 (Dec. 9, 2019); See State v. Willingham, 2019-Ohio-1892 (May 16, 2019).   

The case is also noteworthy because the way the attorney defended Erhardt made all the difference.  Erhardt was accused of sexual offenses against two minors alleged to have occurred in 2006.  When this became known in 2014, Erhardt was arrested and indicted.  Yet the State felt it was not ready to prosecute, and dismissed the case pending further investigation.  

Erhardt moved on, and apparently, so did the prosecutor.  Dropping the ball, the prosecutor completely forgot about Erhardt’s case.  A new prosecutor’s office was installed a few years later, with brand-new staff.  And Erhardt, thinking it was over, moved to seal the dismissal.  But when the trial court said no, Erhardt became an unwitting catalyst to his own re-prosecution, by appealing to the Fifth District.  This is because the Fifth District reversed, sending a copy of its decision to the new prosecutor.  Upon receiving it, the prosecutor recognized the State’s failure, and picked the ball back up again—albeit four years later.  It re-indicted Erhardt in 2018. 

In comes the sharp defense attorney.  Moving to dismiss the case, the defense attorney argued that waiting four years caused Erhardt prejudice, by proving that two key pieces of evidence were no longer available to him.  The first was the school records for the two alleged victims, which were lost because the school had already shut down by the time of re-prosecution.  The second was a defense to the crimes.  Erhardt claimed he had shingles during the time in question, and consequently would not have been able to do what was alleged.  Erhardt did receive treatment for it, back in 2006.  But, due to the delay the hospital destroyed his records pursuant to its retention policy.  Erhardt’s attorney got the Hospital’s practice manager to testify at the hearing.  She testified that Erhardt’s records would have been available in 2014, but not in 2018.  By pointing to specific evidence, and producing testimony about its unavailability, the attorney won.  The Fifth District reasoned that actual prejudice is established upon the showing that there was specific evidence that is no longer available due to delay, and that it would attack the credibility of the State’s case.   

The takeaway: If you’ve got a prejudicial delay case, be creative in figuring out who the right person is to establish that there is missing evidence that would have aided your defense.  And remember: missing evidence does not need to attack any specific element; it just needs to attack the credibility of the State’s case in some way.