6th Amendment Issued Considered by Ohio Supreme Court

	Posted on Wed, Mar. 15, 2006
	Justices consider evidence question Ohio's high court hears Sixth Amendment case By Dennis J. Willard Beacon Journal Columbus Bureau COLUMBUS - Dating to 1791, a fundamental right in the U.S. legal system has been that someone charged with a crime has the right to face his accuser. What if the accuser has died and the evidence that potentially could convict an alleged rapist is a statement given to a nurse who examined the victim? On Tuesday, the seven justices of the Ohio Supreme Court heard the unusual story of Ann Mazurek, a Lakewood teacher who, before she died weeks later from an unrelated epileptic seizure in 2003, had accused James Stahl of Wadsworth of kidnapping and raping her in December 2003. Normally, statements made to doctors, nurses and psychiatrists are admissible as hearsay evidence, but Mazurek's case is not typical, and a 2004 U.S. Supreme Court decision issued just weeks before Stahl was to go to trial complicated matters. That federal ruling stated a ``testimonial'' was inadmissible unless the person giving it appears in court to be cross-examined by attorneys representing the accused. Ohio Supreme Court justices now must determine if Mazurek knew the information she was telling nurse Jennifer Markowitz would be considered ``testimonial'' -- so it could be used at trial -- or if she was just providing information during a medical examination. The justices, during oral arguments, focused on a consent form Mazurek signed as she was examined at the Developing Options for Violent Emergencies (D.O.V.E.) medical unit at St. Thomas Hospital in Akron a day after the attack. Brian Pierce, Stahl's attorney, told the court the form clearly indicates the information would be used in the investigation and prosecution of a crime. Philip D. Boganoff, a Summit County assistant prosecutor, told the justices that the 9th District Court of Appeals ruled previously that Mazurek may not have known her statement to the nurse was a testimonial to be used at trial. He also said there was no evidence in the record that Mazurek read the consent form. He said patients routinely sign papers while receiving medical treatment. Boganoff said Mazurek already had given a statement to Richfield police and that the information she was giving the nurse was intended to help her with treatment. Justice Maureen O'Connor questioned Stahl's attorney about the statement, noting a patient like Mazurek may have been answering questions to aid medical personnel in making decisions about further treatment, HIV and discharge plans. Pierce agreed but said that information could not be used if Mazurek believed it also would be evidence for a trial. ``Can statements have a dual purpose?'' O'Connor asked. ``Yes,'' Pierce responded. In an interview after the hearing, Pierce said Mazurek first went to the Richfield police to report a crime. The police made the decision to send her to the D.O.V.E. medical unit. ``She's not complaining of any injuries or illness. She went to the police to report a crime,'' Pierce told the justices. He said the case may have been different if Mazurek went to the hospital for medical treatment; then her statements would have been admissible. Justice Paul Pfeifer noted the Richfield police officer who transported Mazurek to the hospital was present while the nurse examined and questioned her. ``Doesn't that undermine your argument that this is not testimonial?'' Pfeifer asked the prosecutor. ``That's a lot different than being in a private room with a doctor or a nurse. The whole confidential nature of being in an exam room seems to go out the window when you have a police officer sitting there.'' Boganoff said the police officer did not suggest questions. ``The issue is, was that statement made in anticipation of litigation, not whether the police officer was sitting there,'' he said. Stahl has yet to stand trial. Pierce told the high court his client would be deprived his Sixth Amendment right to face his accuser in court and would not receive a fair trial if the testimonial evidence is allowed. In 2004, Summit County Common Pleas Judge Marvin Shapiro ruled against allowing the nurse's statement. The 9th District Court of Appeals overturned that ruling in March 2005.