Schnarr v. State: Oral Argument Review

12 01 2017

The new members of the Arkansas Supreme Court participated in oral argument for the first time.  There were three issues in Schnarr:

First, Schnarr argued that the Court should overrule case law preventing a defendant from adducing evidence of an alleged victim’s character for violence and specific acts of violence.  Second, the Court should reverse and remand for a new trial because the trial court denied Schnarr the right to a public trial.  Third, the Court should reverse due to the trial court’s failure to give a negligent homicide and imperfect self-defense instruction.

Jeff Rosenzweig, Schnarr’s attorney, spent the vast majority of his brief focused on the first issue. He spent two-thirds of his initial brief trying to explain to the Court the history of how case law got off-track and misapplied. I can imagine that Mr. Rosenzweig has fought this fight a number of times with Arkansas appellate courts in an effort to correct this law.  During Mr. Rosenzweig’s argument, it was clear that Justice Goodson and Justice Wood were hostile to the argument.  I don’t know if it’s because they don’t understand the argument, have no interest in reversing precedent, or had already made up their minds.  It does seem that the two of them fail to follow the argument that evidence of the alleged victim’s violence makes it more likely that Schnarr testified accurately and truthfully about the alleged victim’s violent behavior on the date in question.  If the jury believes that Schnarr testified accurately and truthfully, then they could find he was reasonable in his self-defense.  However, what Justice Goodson and Justice Wood take for granted is that Schnarr’s testimony was believed to be accurate and truthful.  Instead, they skipped to whether he was reasonable, but before you can assess reasonableness you must decide the facts.  The issue itself is very important to criminal law practitioners.  The inability to show jurors that the alleged victim in a self-defense case is a violent person has likely changed the outcome in numerous cases.  If Rosenzweig can get the Court to begin permitting the introduction of this evidence, then it will likely make self-defense claims far more viable.

The second argument revolved around whether the exclusion of Schnarr’s family from voir  dire violated his right to a public trial.  This issue seemed to garner a vast majority of the Court’s attention, particularly with the Assistant AG.  It was one of the most active oral arguments from Justice Wood.  She asked several questions effectively trying to focus the Assistant AG on what is important legally.  It seemed Justice Goodson had interest as well trying to get a legal analysis, as opposed to abstract factual analysis, out of the Assistant AG.  Justice Hart was also lively in the discussion on this point.  The real focus of the Court was trying to figure out what legal standards to apply, especially in light of the failure of the Court to take testimony or make credibility findings. At one point, it seemed as though newly elected Justice Womack decided to help out the Assistant AG.  The questioning justice was off-screen online so I cannot be certain it was him or Justice Wynne.  Regardless, it was an awkward moment where Justice Womack decided to make numerous arguments for the Assistant AG and the Assistant AG could simply stand at the podium and affirm the statements.

Similar to issue one, the third issue got little airtime with the Assistant AG.  It is another battle that takes place on an intellectual level that takes some work.  The Court has to realize that imperfect self-defense could equally lead a jury to manslaughter OR negligent homicide.  It is also beyond me why we have so few proper criminal instructions.  We need more people that actually try cases, like Mr. Rosenzweig, on the committee for criminal jury instructions.

Of note, with the legendary former Chief Justice Hannah no longer at the helm, it seemed that the justices were avoiding speaking into their microphones.  For the public watching online, it was frustrating and made me think even more fondly of former Justice Hannah for his insistence that the microphone be used.

*Update – I have learned that Justice Wood encouraged her Twitter followers to watch oral argument today.  I wonder if that possibly played a role in her liveliness during oral argument or she encouraged her followers to watch because she believed the issues to be exciting.  Regardless, I think it’s a positive development that our justices are encouraging the public to be a part of the appellate process.





One response

19 01 2017
Upcoming Cases of Interest | Arkansas Criminal Appeals

[…] Schnarr v. State – This was previously written about here. […]

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