Back in Session

24 08 2011

Today i’m going to throw some thoughts out there to express some random concerns.

First, case law exists very heavily in some areas of criminal law and not in others. The reason is that people are forced to go to trial for things like murder, rape, aggravated robbery, possession of controlled substance with intent. The offers on those offenses are usually not very good and the possible reward of going free is usually too enticing. Once convicted the defendant appeals. Whereas on smaller issues there is not enough law to properly be able to advice clients. The reason is because the offers are usually probation or a fine and the cost of appealing is more than the representation itself. Therefore, on issues like DWIs, expungements, and misdemeanors the law is unclear, poorly worded, and case law gives almost no guidance. This is a problem because these offenses are much more common than the Y felonies discussed above. The worst part of it all is that if you are going to persuade most district court judges of your position you will need law directly on point from the State of Arkansas. Without a case all but saying your client’s name, you aren’t going to get a district court judge to buy a legal argument. All that to say, something has to be done. I don’t know if it’s lowering the fees to appeal or possibly even having the appellate courts waive fees on certain issues to encourage law to be made. In the end i’m probably just complaining.

Second, I was granted oral argument for the Confrontation Clause at sentencing appeal. As one of the most significant issues of the day I hope i’ll be up for the challenge on September 22, 2011. I would hate to think i’ll be known as the guy who lost Arkansas defense attorneys the right to confrontation at sentencing for good. The kicker is that the victim in the case has called and written me hoping that I win because she claims to have been pressured into testifying against my client. Which leads me to point three.

Third, a conviction does not magically go away because a victim recants or you have a new alibi. Weekly I get a letter from an inmate or a client on appeal telling me that the victim has recanted or they can now prove their innocence in some way. Most of the time they don’t really have the evidence they claim but sometimes they do. Sometimes if there was a new trial with that evidence they would be set free. Some of these people are doing life in prison. The problem is that there are often no legal options other than going through the parole board to the governor for a pardon. Most of the time a direct appeal or rule 37 are either inapplicable to their situation or they are out of time for them. Additionally, writs of error coram nobis are granted with extreme rarity and for very few reasons. And on top of all that there is a hefty fee for an attorney to jump through all those legal hoops and “possibly” get you a new trial. Lesson to be learned is that ADC is good at keeping people once it gets them.

Those are my thoughts until the appellate courts resume work.

Thanks for reading that long rant!


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