The Ohio Supreme Court heard oral arguments in the case of State v. Wilson in January. This case stems from a sixteen-year pre-indictment delay in the prosecution of Scott Wilson following the death of the victim in 2006.
In 1985, Scott Wilson, while living with his girlfriend and her infant child, shook the child, causing severe traumatic brain injury. Clermont County subsequently charged Wilson with felonious assault. A jury found him not guilty of felonious assault. Rather, the jury found him guilty of assault, a misdemeanor. Wilson was sentenced to six months in jail and fined $1,000.
In 2006, the now 22-year-old victim died. The autopsy report submitted in 2007 showed that her death was caused by late effects of blunt impact to the head complicated by a seizure disorder and bronchopneumonia. Dr. Michael Kenny—the Deputy Coroner— conducted the autopsy, and Dr. Greg Balco—a Neuropathologist at the Hamilton County Coroner’s Office—examined the victim’s brain.
Meanwhile, in 2022, Wilson filed a motion to seal his records concerning his 1985 assault charge. Clermont County Prosecutors, while reviewing Wilson’s file, noticed the 2007 autopsy report of the victim. The Prosecutor’s Office then opened an investigation into the death of the victim, leading to Wilson’s indictment for involuntary manslaughter and reckless homicide. The prosecution alleged that the victim’s injuries caused by Wilson in 1985 ultimately led to her death in 2006.
Sixteen years had passed since the death of the victim. Evidence shows that, in 2007, following the victim’s death and autopsy, the Clermont County Prosecutor’s Office considered the matter. But there is no evidence that the case was sent to the grand jury, or whether the Prosecutor’s office declined to prosecute based on insufficient evidence.
The reckless homicide charge was dismissed prior to entering a plea. Wilson then entered a plea of no contest to the involuntary manslaughter charge. The jury found him guilty of involuntary manslaughter. Even after leading a law-abiding life for 39 years since the incident, Wilson was sent to prison for two years. As noted by the defense, “the court essentially sentenced Mr. Wilson for an offense that occurred in 1984.”
On appeal, Wilson argued that the sixteen-year pre-indictment delay violated his due process rights under both the Federal and State Constitutions. Wilson argued that it was an “unjustifiable delay between the commission of the offense and on indictment for that offense.” Such a delay caused actual prejudice, violating his right to due process of the law. But the Twelfth District upheld his conviction, finding that despite the State’s unexplained delay and the unavailability of the now-deceased neuropathologist Dr. Balco, e court held that Wilson did not suffer actual prejudice.
Actual prejudice, the Twelfth District reasoned, exists when missing evidence or unavailable testimony would minimize or eliminate the impact of the state’s evidence and bolster the defense. Wilson argued that the unavailability of important witnesses—including the arresting officer, the officer who submitted the initial complaint in 1985, Dr. Balko who examined the victim’s brain, the County’s Coroner, the presiding judge over the 1985 case, and Wilson’s attorney in 1985, who are all either deceased or unable to be located—caused actual prejudice. The Twelfth District disagreed. Dr. Jason Heil, a neurologist Wilson retained to assist in his defense, was found to be capable of attacking Dr. Balco’s report, meaning that Wilson did not suffer actual prejudice.
The Ohio Supreme Court accepted the case for review. Wilson once again argues that the sixteen-year-long pre-indictment delay violated his due process rights under the Fifth Amendment to the U.S. Constitution and under Ohio’s analogous provision in its State Constitution. Moreover, Wilson argues that the delay was not justified, emphasizing the length of delay between committing the offense and indictment and the resulting loss or destruction of evidence. In fact, counsel for Wilson emphatically asserts that it is the State, and the State alone, who is responsible for this unreasonable delay:
The State is responsible for this over sixteen-year delay and the State’s neglect has led to the loss of evidence preventing Mr. Wilson from now receiving a fair trial. The delay has resulted in the deaths of several witnesses and participants in the 1985 trial. The delay has resulted in lost or destroyed evidence in this case. . . . In essence the question is, did the previous administration choose not to proceed with prosecution based upon the evidence available in 2006 or did the previous prosecutor present the matter for grand jury consideration and there was no indictment? Did the Prosecutor’s investigator, Mr. Hawkins, question the relevant witnesses and based upon this investigation the then prosecutor decide to forego charges? Sadly we don’t know.
The State, in response, argued that Wilson still failed to show actual prejudice caused by the delay. Rather, Wilson engaged in “self-serving speculation” by asserting that the missing evidence and unavailability of witnesses have actually prejudiced Wilson’s case. Moreover, witnesses who are available, such as Dr. Kenny, who actually conducted the autopsy, indicated that, even without Dr. Balco’s examination, he would have reached the same conclusion regarding the victim’s cause of death.
But even if the delay actually prejudiced Wilson, the State argues that it was justified. In its brief, the State asked the Court to clarify the standard for what constitutes an unjustifiable delay. The State argues that the Ohio Supreme Court join other jurisdictions by limiting an unjustifiable delay to a purposeful delay by the State to further some improper motive – which it says did not occur in this case. Moreover, the State asks the Court to rule that mere “governmental negligence does not amount to an unjustifiable delay.”
Regardless of whether the Ohio Supreme Court agrees with Wilson, a decision will clarify the murky standards surrounding unjustifiable pre-indictment delays.