ILNews

Court: delayed rape conviction OK

Jennifer Nelson
January 1, 2008
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The Indiana Court of Appeals affirmed a defendant's rape conviction, finding his due process rights weren't violated when charges were filed in 2005 for a rape that happened nearly 25 years earlier.

In Thomas N. Schiro v. State of Indiana, No. 10A01-0701-CR-21, Thomas Schiro appealed his conviction of felony rape, arguing the trial court erred by denying his motion to dismiss the charges brought against him in 2005 for two rapes that occurred in 1980 and by admitting his written sexual autobiography and a photograph of his victim with her disabled daughter.

Schiro was in prison in 2005 when the state filed rape charges against him, alleging he had committed two rapes in late 1980. Schiro was in prison following his conviction for felony murder of an Evansville woman in February 1981. He was originally sentenced to death, which is why the state failed to file the rape charges against him for the two rapes in which both women at the time identified Schiro as their attacker. However, the Indiana Supreme Court set aside his death sentence in 1996 and imposed a 60-year sentence instead.

The state reopened the investigation into the rapes in 1997 but couldn't locate L.S., one of the victims. The state also had trouble finding Schiro's former girlfriend, who they believed was a key prosecution witness. Eventually, G.G., the other victim, L.S., and Schiro's ex-girlfriend were all found by 2005. The state charged Schiro with felony rape and felony criminal deviate conduct against both G.G. and L.S. Schiro filed motions to dismiss the charges, which the trial court denied.

The state also allowed portions of Schiro's sexual "autobiography" - written during a mental evaluation prior to his murder trial - which chronicled rapes, sexual assaults, and other crimes into evidence, as well as a photograph of L.S. with her disabled child. Schiro was found guilty on the charges committed against L.S., but not G.G. He was sentenced only on the rape charge because the statute of limitations had run out on the criminal deviate conduct charge. The trial court imposed a 40-year sentence.

On appeal, Schiro failed to show the state's delay in filing the charges was inexcusable. It would have been a waste of taxpayer money to prosecute him for the G.G. and L.S. rape cases while Schiro was in prison on a death sentence. Once his sentence was reduced, the prosecution opened the case and waited until they had both victims and a key witness before proceeding with the charges, wrote Judge James Kirsch.

"Schiro has failed to establish that the evidence is without conflict and leads inescapably to the conclusion that he is entitled to a dismissal. Consequently, we find no trial court error in its decision to deny Schiro's motion to dismiss on the basis of prosecutorial vindictiveness," he wrote.

In regards to the admission of Schiro's sexual autobiography, the Court of Appeals concluded the probative value of the statements wasn't substantially outweighed by the danger of unfair prejudice, so there was no error in admitting portions of the text. The trial court also didn't err in admitting the photograph of L.S. with her disabled daughter because L.S. had already testified that her daughter was at home at the time of the attack and had cerebral palsy. Even if the state excluded the photograph, there was enough evidence from which the jury could reasonably infer Schiro's guilt beyond a reasonable doubt, the judge wrote.
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  1. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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