The Arkansas Supreme Court affirmed the trial court’s decision to admit a prior conviction and the facts underlying the conviction into evidence. The Court ruled that trial counsel failed to preserve the argument that the underlying facts should not have come into evidence. There are two massive problems with this ruling.
First, the argument was preserved. Trial counsel objected to any evidence of the conviction being admitted under Rules 401, 402, 403, 404, and 609 in addition to objecting as a violation of due process. The opinion does not state what the objection should have been, which is likely because there is nothing else to object to. It appears the Court would have liked trial counsel to file the motion, and then after the trial court ruled, to then object again. This have never been a rule and is baffling that the Court found the argument unpreserved.
Second, and more troubling, is that the State never argued the issue was not preserved. Essentially, the Arkansas Supreme Court is now playing on the State’s team and formulating arguments for them. The Arkansas Supreme Court rejects arguments by the defense when they are in reply briefs, underdeveloped, or do not cite to convincing authority. However, the Court appears willing to create arguments for the State. How is that not a due process violation? Jordan was never given a chance to respond to the Court’s argument that the issue was not preserved. This is a flagrant violation of the Court’s rules, due process, and gives the utmost appearance of impropriety. I would let it all go if the Court could show one time where they crafted an argument for the defendant to reverse his conviction!