Porter will now be brought back to Faulkner County to receive a fair trial and hopefully a better result.  The order can be found here.

In Gutierrez v. State, the Arkansas Court of Appeals reversed and remanded the convictions and suppressed the evidence discovered as a result of an unlawful search and seizure.  DEA officers used an arrest warrant for Appellant’s nephew to enter the residence and discovered guns and drugs along with Appellant in the residence.  The State argued that the arrest warrant permitted them to enter the house because they had seen Appellant’s nephew at the house the day before.  The trial court rejected this contention because there was no indication that he was there on the day of entry.  Of particular importance was the lack of vehicle at the residence.  The State then contended that exigent circumstances permitted entry because one of the windows was broken and an agent testified that methamphetamine traffickers will kidnap and torture individuals.  The Arkansas Court of Appeals rejected this as mere speculation and conjecture, and not based upon the facts of this case.

In Todd v. State, the Arkansas Court of Appeals rejected six claims of error.  Most notably, the Court rejected Appellant’s contention that the trial court erred excluding a psychologist from testifying that Appellant is not a pedophile; therefore, he is less likely to have gone to meet the underage female for sexual purposes.  In doing so, the Court of Appeals was unclear what rationale it actually adopted as a basis for its decision.  It appears as though the Arkansas Court of Appeals affirmed based upon the Arkansas Supreme Court holdings that psychiatric testimony that attempts to establish a defendant’s state of mind at the time of a particular crime is not admissible.  There are two primary problems with this ruling.  First, these holdings have NEVER been applied outside of the context of murder.  Second, the psychologist here was not going to say Appellant’s state of mind at the time of the crime, rather, he was simply going to say he is not a pedophile and it’s less likely he went for sex.  It is unbelievable that the learned judges could come to such an absurd ruling.  It simply goes to show the lengths some judges will go to make sure “justice” is done in their eyes, even if it means disregarding the law.

The choice for judge comes down to one question:  Do you want to be tough on crime or smart on crime?  John Hout’s website, speeches, and facebook page all tout his “tough on crime” policy.  Hout essentially promises to place two prosecutors in juvenile court to ensure that juvenile offenders spend as much time as possible behind bars.  Unfortunately, that approach fails.

“Tough on crime” policies have been advocated to win elections and appointments for decades.  For decades they have failed.  The achievements of “tough on crime” policies are increased minority resentment to government, increased racial profiling, increased imprisonment rates, and increased budgetary needs of law enforcement.  These policies fail to achieve a reduction in offenses or rehabilitation of offenders, which should be the goal of a juvenile court judge.  Thus, I support Patti James for Pulaski County Juvenile Judge, because smart on crime is the better policy.

Please click here for more information on how “tough on crime” policies fail.

Below are quotes from Chief Judge Vaught’s three primary problems with this case:

• First, the bulk of the officer’s time spent during the stop involved his investigation of the validity of a rental contract and its accompanying coverage. A contract concerns civil law, not criminal law. It is inappropriate for the government to use its immense Fourth Amendment powers to investigate a contract.

• Second, for an officer to claim (and worse, for a trial court to accept) that it is reasonable to be suspicious that criminal activity is afoot because the officer observed a road atlas in a vehicle traveling out of state on an interstate highway is ludicrous. To the contrary, having an atlas (or some sort of global-positioning system) is to be expected and offers not even a hint of criminality.

• Third, I have watched the video recording of this stop. I saw the dog circle the vehicle several times. I heard the officer encouraging the dog that he could find it. I did not, however, see any indication that the dog alerted or altered its behavior in anyway. In fact, the officer’s last words to the dog were confirming that the dog had not alerted. However, the trial court saw the same tape and reached a different factual conclusion. I believe my interpretation of the dog search is validated by what happened after the dog “alerted.” Although the officer at that point would have probable cause to search, he did not do so. Instead, he further interrogated appellant. In what I think is best described as a probablecause “bluff,” the officer claimed that the dog had alerted then encouraged appellant to “help” the dog out and admit if there were drugs in the vehicle. This led to the roadside statement, which the court later found inadmissible. If the dog had alerted, and the officer believed it then (as he claimed that he did at trial), the dog would need no “help” from appellant to initiate a search. That’s rather the point of the dog alerting.

In Daugherty, Appellant challenged a conviction for speeding mph over the speed limit.  The radar gun clocked Appellant at 51 mph in a 35 mph zone.  The manual showed that the radar gun had an error rate of plus or minus 1 mph.  Therefore, Appellant argued that only 15 mph over fell within the range of error.

The Arkansas Court of Appeals agreed, and reversed and dismissed the conviction.  I give a lot of credit to the willingness of Appellant to pay attorney fees to appeal to circuit court then to the Arkansas Court of Appeals to fight a speeding ticket.

In Clark v. State, Appellant, a police officer, was arrested on a charge of misdemeanor second-degree assault on allegations of choking an arrestee during the booking process.  Appellant argued that the trial court erred in preventing him from putting on testimony from a police officer that determined Appellant did not commit a criminal act, and was, in fact, using defensive tactics on the arrestee.

Special Agent Phillip Hydron of the Arkansas State Police conducted an independent investigation to determine whether appellant committed any criminal act in his handling of the arrestee. The State filed a motion in limine to preclude SA Hydron from stating whether the charges were appropriate. Appellant argued that, due to the exculpatory nature of Special Agent Hydron’s opinion and expertise, the exclusion of his opinion that Appellant did not commit a criminal offense violated his right to due process. The trial court granted the State’s motion in limine.

In addition, Appellant called SA Hydron to testify regarding Appellant’s hand placement on the alleged victim to establish he was using a defensive tactic.  The trial court sustained the State’s objection.  Therefore, Appellant proffered the testimony.

The majority affirms the trial court’s ruling because the testimony would invade the province of the jury.  Judge Hart, however, in her concurring opinion, affirms solely on the basis of lack of preservation.

Two problems arise.  One, Judge Hart is incorrect.  The argument was preserved.  The argument was preserved in the motion in limine.  A motion in limine does not require additional objections at trial to be preserved, and it allows the party filing the motion to actually broach the subject it sought to exclude.  Therefore, the issue was preserved.  Second, and more troubling, Judge Hart made a promise to the people of Arkansas when running for Supreme Court that her preservation rules would be more, not less, strict than other judges.  Judge Hart stated that she would rule on an issue if it was clear that it was argued to the trial court.  Here, it was.

I have the utmost respect for Judge Hart; however, nothing limits the achievement of justice in Arkansas more than the strict preservation rules.

This is more ridiculous than the original opinion, which simply overlooked the operative facts.  Instead, this opinion creates more questions than answers.  Essentially, the Court is stating that a jury can infer that the search warrant was based on what happened on a particular day in a particular place for a particular reason, yet there be no evidence of that in the record.  SHOCKING?  No.  This is simply another case where judges desired a result and were willing to say anything to get to it.

The one honest judge:  Judge (soon to be Justice) Jo Hart.  Judge Hart concurred, and stated that there was NO EVIDENCE that a transaction occurred in Apartment A.  However, my problem with Judge Hart’s concurrence, is that it does not detail what the additional linking factor is if it is not the transaction in Apartment A.

It is getting to the point with the Arkansas Court of Appeals that I am more amused at the unbelievable reaches made in the criminal opinions than I am shocked or outraged.  I look forward to the new batch of judges to appear at the Court.  Hope is all I have, something Jomy Robelo was robbed of.

The Arkansas Court of Appeals has actually taken a long look at the Petition for Rehearing filed in Robelo v. State.  The Petition was submitted on August 15, along with several other petitions.  All other petitions have been denied except for Robelo’s.  Typically, but not always, the longer the decision takes to come down the more likely it is that the Court will reverse.  So I will keep my fingers crossed for a reversal in Robelo’s case.

Currently, I have 10 cases awaiting decision at the Arkansas Court of Appeals and Arkansas Supreme Court.  I also have three cases with pending oral argument requests.  This is shaping up to be a busy and exciting session on this blog.

Fortunately for the State, the Arkansas Court of Appeals went ahead and decided that not only did a drug deal take place, but also that it took place between Robelo and the CI in apartment A.  Then of course found that to be a sufficient link to connect Robelo to the drugs.  It is incredible that the Court of Appeals could determine that a drug deal took place in apartment A between Robelo and the CI when the officers could not.  Officer Holmes stated, “I was able to look back at the apartment, but I didn’t see anything until the informant left. ”  Then later testified, “I didn’t see anyone going in and out of apartment A.”  Investigator Medina simply said that he was at the park and could not get close.

So I ask once more, how did the Court of Appeals see Robelo and/or the CI go into apartment A if the officers did not?