Arkansas Criminal Appeals

Jerry Lard was sentenced to death after killing a police officer that begged for his life.  The State introduced everything bad imaginable about Lard during the trial.  The trial court admitted the evidence to rebut the mental disease or defect defense and show Lard actually had antisocial personality disorder.  The State claims that antisocial personality disorder is a medical way of describing someone who is mean.

While the majority affirmed the conviction and sentence, Justice Corbin wrote a stirring dissent.  Justice Corbin called for the trial courts to start actually looking at the probative value versus risk of unfair prejudice.  Justice Corbin noted that in this case there was an avalanche of prior bad acts elicited concerning Lard.  The State introduced evidence of statements evidencing a lack of remorse and tattoos of graveyards and “hell bound.”   Justice Corbin, while not disputing the possible relevance, noted that such evidence cannot possibly be nearly as probative as it is unfairly prejudicial.

Three questions loom large from this case.  First, is the State now always going to be able to use all prior bad acts in cases where antisocial personality disorder has been diagnosed?  Such an implication would be devastating to mental disease or defect cases.  Second, it is unclear why Justice Corbin chose to reverse the sentencing phase only.  If the prior bad acts were improper at any point it would seem to have been the guilt phase.  Nevertheless, I would prefer him to take a stand at sentencing phase than none at all.  Third, it appears that Justice Corbin and Justice Hannah have been seeing cases similarly early in 2014.  They have now dissented together in two cases this year.  They have both been highly critical of trial courts for not properly evaluating 404(b) and 403.  Hopefully they can pull a couple other justices their way and put some substance back in those two rules.

The Arkansas Supreme Court decided a rather significant case a mere week after hearing oral arguments.    The decision came down with a five justice majority finding the Arkansas death penalty statute unconstitutional based on separation of powers.  The crux of the opinion was that the statute gave far too much leeway to the executive branch, in this case ADC, to determine how to implement the death penalty.  Justice Baker and Special Justice Freeland dissented from the majority and argued that the statute gave adequate guidelines for selecting the chemicals and process for effectuating the death penalty.

After reading the opinion multiple times I am left with a firm conviction that the difficulty in the opinion stems from the justices’ failure to define the issue.  The majority and dissent differ on whether the statute gives unfettered discretion to ADC in implementing the statute.  The problem is that the two sides are arguing two completely different issues.  The majority, although they do not say it, argued that the statute gave unfettered discretion in selecting the drugs to be used.  The dissent argued that the statute gave guidance in effectuating the death penalty.  Both are absolutely correct.  The rub, as it is in most constitutional arguments, is in defining the issue.

From a purely legal standpoint, I would have to say the dissent is correct.  The issue is the statute’s unconstitutionality and whether it gives unfettered discretion in carrying out the death penalty.  The statute clearly gives considerations and suggestions in determining the chemicals and makes clear that death should be the final result due to a mixture of chemicals injected into the vein.  This is guidance.

From a public policy perspective, I cannot be more enamored with the majority.  Do we really want ADC making the decision of how to kill someone or do we want our elected legislators making that call?  I think for all of our well-being it would be prudent to leave as little discretion as possible to an executive entity, especially one well-known for the severe mistreatment of inmates and inhumane living conditions.

For a different analysis of the ramifications of the opinion please read this news article.

Finally, kudos to Joshua Lee on an excellent oral argument.  Once again I think oral argument can push defendants over the top in a tightly contested appeal.

The Arkansas Committee on Criminal Practice proposed Rule 4.7 and the Arkansas Supreme Court adopted it.  It states that all interrogations at a jail or police station should be recorded.  The penalty for not recording them is that the judge is now permitted by the rule to take this into consideration in determining the admissibility of a statement.

Although I do not doubt the good intentions and hard work performed by the committee, Rule 4.7 might be the most useless rule of them all.  I have no doubts that it will be frequently cited by defense attorneys, but the practical ramifications will be nil for a few reasons.  First, if judges are not already considering the failure to record interrogations then they have been neglecting their oath for years.  Second, the rule does nothing to inform judges how they are to consider the failure to record the interrogation.  Does failure to record alone permit a judge to suppress the statement?  How about if the officer is credible in his testimony but he did not record the statement, does that suppress the statement?  The failure to give any guidance at all will render this rule either arbitrary in its application or useless.  Finally, the rule is simply stating the obvious.  It is tantamount to stating the court should consider the abuse the police officer inflicted in determining the admissibility.

This rule will change nothing.  It is expressing a public policy statement preferring that interrogations be recorded; however, it has no enforcement.  Without enforcement it is the equivalent to having the Fourth Amendment without the exclusionary rule.  It just won’t help.

The Sentencing Law and Policy blog recently questioned whether the Arkansas Supreme Court’s decision in Paschal was due to the harsh sentence given (link).  The real issue is that a jury gave Paschal 30 years for having consensual sex with an 18-year-old female.  Sentencing Law and Policy also notes that Americans are greatly concerned about the amount of people in prison and the amount of money spent on housing prisoners (link). 

It seems as though rising prison costs and mass incarceration are problems in the abstract but when faced with a decision as a juror it seems easier to lock someone away for an extended period of time rather than have them be a part of your community.  Perhaps there is not a better case to demonstrate that principle than Paschal.  To lock a man away for 30 years based on a consensual sexual relationship with another adult is absurd.  The problem is that each juror worried about a teacher having sex with their daughter instead of wondering about the equally likely scenario of a family member being in the defendant’s seat in this case.  While the Arkansas Supreme Court did the right thing in this case and dismissed the convictions, there are thousands of other cases where similar verdicts are handed down without review.  If our society is truly concerned with the amount of money spent on incarceration and the amount of people incarcerated then it needs to be more conscious of that fact when it comes to signing off on extreme verdicts.

Approximately a month since the Supreme Court instituted a change in the oath to incorporate civility to other attorneys, the Court seems to have forgotten that itself.  In State v. Paschal, the Supreme Court came down with a monumental, and quite chippy, decision.

Appellant was convicted of four counts of second degree sexual assault and one count of witness bribery.  Appellant was sentenced to 30 years in the Arkansas Department of Corrections.  The convictions stem from a consensual sexual relationship Appellant had with one of his students that was 18 years of age.  During the investigation, Appellant allegedly stated that he would give the student a few thousand dollars to have her drop the case. 

The Court addressed three arguments on appeal.  The first two relate to the witness bribery conviction.  First, Appellant argued that his statement, even if true, did not violate ACA 5-53-108 because it was not encouraging the student to change her testimony.  Six members of the Court found this argument unavailing; however, Justice Danielson found it had merit.  Danielson agreed that the offer was at most an attempt to make the student uncooperative with police but not to change her testimony.  Second, Appellant argued the trial court erroneously prevented him from introducing evidence of bias of a witness.  The witness at issue was SC.  SC was a friend of the student with whom the sexual relationship was with.  SC was the witness that testified that Appellant offered money for the student to drop the charges.  The evidence excluded was that Appellant’s family had sued SC’s family and taken a large amount of land away from them recently.  All of the justices agreed this evidence should have been presented.

Finally, and most importantly, Appellant argued that under Lawrence v. Texas and Jegley v. Picado, he had a fundamental right to have consensual sexual relationships between two adults without interference from the government.  The four justice majority agreed.  The least restrictive means to effectuate the concerns of the State was to prevent people from using their trust and authority to coerce individuals into sexual relationships.  Instead, here there were no allegations of coercion, and consequently, no compelling rationale to extend the law to cover teachers and adult students. 

The real story in all of this is the back and forth language of Justice’s Hannah and Brown.  In Justice Hannah’s majority opinion he refers to Justice Brown’s dissent as “perplexing,” “appalling,” “injudicious,” and “irresponsible.”  Justice Brown, equally put off with Justice Hannah’s majority, refers to it as “preposterous.”

The entire court misses the mark with this opinion.  The Court in Picado made it clear that adults have a fundamental right to have consensual sexual relationships between each other.  The standard has always been strict scrutiny for fundamental rights.  The majority stays true to the framing of the issue in Picado as one involving a consensual sexual relationship between two adults.  When strict scrutiny is applied the law is nearly always upheld as it was here. 

The dissent tries numerous approaches to discredit the majority.  First, the dissent tries to frame the issue incorrectly.  The dissent argues the issue is about consensual sexual relationships between students and teachers.  That is absurd.  That same logic would make Lawrence and Picado about consensual gay sexual relationships.  Second, the dissent tries to avoid discussing the necessary standard of review, which is strict scrutiny.  Instead, the dissent largely ignores standard of review altogether and focuses instead on the slippery slope of allowing students and teachers to engage in sexual relationships.  Finally, the dissent cites cases from other states for the proposition that it is not unconstitutional to criminalize teachers and students sexual relationships.  The problem with these citations is that the cited states do not recognize consensual sexual relationships as a fundamental right; consequently, these cases hold no weight.  In fact, the dissent even quotes from a case stating that the statute met “rational basis review.”  That is a far cry from the situation here where strict scrutiny applies.