CLEVELAND — The Ohio Supreme Court will review an appellate court decision that Cuyahoga County prosecutors say could make it more challenging to prosecute dangerous abusers.
"I fear if we’re restricted too much, we’re going to be faced with situations where we would have to ignore situations where there are signs of imminent threat or potential death for a victim,"said Daniel Van, Assistant Prosecuting Attorney, Appeals Unit.
Evidence-based prosecutions are also known as victimless prosecutions. They occur when a criminal case moves forward without the victim's testimony and are most often used in domestic violence cases.
The ruling
In a ruling last year, Ohio's Eighth District Court of Appeals denounced the county's use of evidence-based prosecutions.
Judge Eileen A. Gallagher described Cuyahoga County's use of the method in criminal cases as a "disturbing trend."
Gallagher said that a statement a victim made to police on body-worn camera should not have been allowed into evidence without the victim's testimony in court. The court overturned a conviction in one of the appellant's two criminal cases.
The judge also wrote that prosecutors could have taken more steps to secure the victim's testimony, including issuing a warrant for her arrest.
The appeal
"I just don't think locking up victims is the solution," Cuyahoga County Prosecutor Michael O'Malley said.
His office appealed to the Ohio Supreme Court, which agreed to review the case earlier this year.
Evidence-based prosecutions began in the mid-1980s, in cities like Nashville and San Diego.
Prosecutors use 911 calls, body-worn camera video, police and witness statements, and other evidence, to try provable cases, even when the victim refuses to participate in the case.
O'Malley said domestic violence victims often recant or refuse to be part of prosecutions involving their abusers.
By listening to jail phone calls, Ohio State researchers found abusers often persuade their victims to drop their cases by using manipulative tactics, including minimizing their actions and love bombing.
"It's our job to hold people accountable when they commit violent felonies and that’s what we’re trying to do," O'Malley said.
The case
In 2020, Cuyahoga prosecutors charged Garry Smith with two counts of domestic violence. Records say the victim was pregnant.
Weeks later, Smith was accused of attacking the same woman. Prosecutors charged him again.
The woman Smith was accused of attacking did not participate in his trial at the Cuyahoga County Court of Common Pleas.
Judge Sherrie Miday allowed prosecutors to show body-camera videos of the victim describing her injuries and the attack to police officers shortly after it occurred.
Judge Miday convicted Smith and sentenced him to prison, which led Smith to appeal to Ohio's Eight District Court of Appeals.
The defense
Regardless of what the justices decide, Chief Public Defender Cullen Sweeney expects little to change inside Cuyahoga County courtrooms.
"When it gets to the point of trial, it’s very rare that the alleged victim wouldn’t be there," he said.
Sweeney noted the right to confront your accuser is a crucial component of the criminal justice system and included in the U.S. Constitution.
"If someone accused us of doing something, you wouldn’t want the decision-maker to make that decision based on a piece of paper," he said.
He said cases should not move forward even when a domestic abuse victim refuses to participate out of fear.
"There’s a lot of things the legislature and the community can do to try to solve that problem, but one of the options that’s not on the table is removing constitutional rights," he said.
The Ohio Supreme Court is expected to rule on Smith's case prior to November's election.
