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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