The case is State ex rel Bunting v. Styer.
Section 2935.09 of the Revised Code allows a person with knowledge of the facts regarding an alleged crime to file an affidavit reciting those facts with the clerk of courts, who must then refer it to a judge or magistrate. If the affidavit alleges a felony, R.C. 2935.10 then obligates the judge or magistrate to either issue an arrest warrant or refer the matter to the prosecutor "for investigation."
Relator Paul Bunting was sentenced to 18 years in prison in 2000, after being convicted of rape and sexual battery. According to Bunting, after going to prison he asked his friend Thomas Weaver to store his beloved motorcycle in Weaver's barn until Bunting was released. (Bunting is due out in May 2018.)
Bunting claims that Weaver stopped responding to his inquiries about the motorcycle in 2008, and that he asked the Tuscarawas County sheriff to investigate a possible theft of the motorcycle in 2012. After allegedly receiving no response from the sheriff, Bunting filed an affidavit charging Weaver with theft in 2013. The affidavit was referred to the prosecutor, and the sheriff then conducted an investigation. The investigation report reflected that the barn in which the motorcycle was stored was destroyed by fire and that the motorcycle was not salvageable. The sheriff's report found no indication of criminal activity and the prosecutor refused to pursue any charges.
Bunting responded by seeking from the Fifth District a writ of mandamus that compelled prosecutor Styer to prosecute Weaver, alleging that Styer's delegation of the investigation to the sheriff did not comply with R.C. 2935.10's requirements. The Fifth District sua sponte dismissed the case for failure to state a claim.
The Supreme Court affirmed the dismissal, writing that "prosecutors have wide discretion in deciding whether to prosecute a particular matter" and that "the decision whether to prosecute is discretionary, and not generally subject to judicial review.”
But here's the thing--generally a decision whether to prosecute is not subject to judicial review? When, precisely, is a court ever able to tell a county prosecutor to bring charges against a suspect, whether through a writ of mandamus or otherwise?
Ohio's charging-by-affidavit procedure was in the news last summer, when community activists in Cleveland used it in an attempt to compel the Cuyahoga County Prosecutor to bring charges against Timothy Loehmann and Frank Garmback, the Cleveland Police Officers involved in the fatal shooting of twelve-year-old Tamir Rice. The judge in that case found probable cause to press charges, but even his decision noted that the prosecutor was "ethically required to decide whether, applying the highest standard of proof required by law, to wit: beyond a reasonable doubt, it is more likely than not that a reasonable trier of fact will hold the individuals accused in these affidavits accountable for these, or any other crimes that might be alleged." In other words, despite the somewhat verbose description, that judge also recognized prosecutorial discretion.
Curious to know whether an Ohio court had ever issued a writ of mandamus in these or similar circumstances, I spent some time this morning drilling down on the cases the Bunting Court cited on the discretion issue. In every one of those cases the Court cited the abuse of discretion standard, but denied the writ. On top of that, what appears to be the root case for the imposition of the abuse of discretion standard is a 1970 Sixth Circuit case called Peek v. Mitchell. But the Peek court actually held, with respect to both the Attorney General and the US Attorney, "as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions."
In other words, perhaps the answer to this question is "no" after all.
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