Justice Corbin’s dissent in State v. Lard

4 02 2014

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.


Jordan v. State: Arkansas Supreme Court Not Playing Fair

25 06 2012

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!

Hobbs v. Jones: Death Penalty Statute in Arkansas

22 06 2012

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.

New Rule: Arkansas Rule of Criminal Procedure 4.7

22 06 2012

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.

New Appeal on the Pedophile Exception

25 05 2012

I just filed the initial brief in Craigg v. State in the Arkansas Supreme Court.  It involves the admission of evidence under the “pedophile exception” to Arkansas Rule of Evidence 404(b).

The case involved allegations of oral sex on a sleeping 14 year-old boy during a camping trip.  The jury convicted the defendant and gave him life in prison.  The jury also heard about the defendant’s prior conviction for lewd molestation out of Oklahoma 17 years prior.

The defense fought to keep evidence of the prior crime out because it did not meet the requirements of the “pedophile exception.”  The prior crime was not similarly committed, it was remote in time, and there was no intimate relationship between the defendant and the victim.  The prior crime involved oral sex on a 4 year-old girl while other individuals were in the residence.  There was no testimony regarding the relationship of the defendant to the girl or to the girl’s parent.  In addition, it was committed 17 years prior.

The trial court admitted the prior offense to show “plan, motive, or intent.”  Besides the fact that the  “pedophile exception” should not apply, there was another huge problem with this ruling.  The State only offered the judgment and commitment order from Oklahoma.  The order had no facts other than the conviction was for lewd molestation.  There was no testimony explaining the facts or what constitutes as lewd molestation.  Consequently, all the jury had was a conviction.  How would that show plan, intent, or motive?  How would that show anything except that the defendant was a bad person?  It was certainly an error and under the law the testimony of the victim alone cannot constitute overwhelming evidence.  Therefore, harmless error will not apply.  It will be interesting to see what the State responds with.

Arkansas Appellate Elections

23 05 2012

Well it’s official…Judge Jo Hart is going to be Justice Jo Hart!  She overcame a significant disadvantage in contributions to defeat Raymond Abramson for a spot on the Arkansas Supreme Court.  Judge Hart nearly doubled Abramson in votes.

New members of the Arkansas Court of Appeals

  • Brandon Harrison
  • Kenneth Hixson
  • Judge Rhonda Wood

Also, there will be a runoff between Judge Whiteaker and Jeannette Robertson for the final open spot on the Court of Appeals.


“Right Result, Wrong Reason” Doctrine Takes A Huge Hit

10 05 2012

The Arkansas Supreme Court announced four criminal decisions today.  Two of the decisions were appeals from Rule 37 Petitions.

In Barrow v. State, the trial court simply failed to make the required findings in the order and the Court remanded the case for the trial court to do so.  The ultimate result will likely be the same; nevertheless, it keeps judges from denying the petitions without due consideration.

In State v. Harrison, the State appealed an order for a new trial from a Rule 37 Petition.  Although it was a 5-2 decision, the most important aspect of the Court’s decision came from pages 14-15 in its throwaway paragraph.  Appellant sought to also give the Court alternative justification for affirming the trial court by re-arguing the points for a new trial rejected by the trial court.  The Arkansas Supreme Court refused to address these claims.  The Court held that a cross-appeal was necessary.  This is ABSOLUTELY wrong.  A cross-appeal is not necessary when all an appellant seeks to do is affirm the judgment for different reasons that were argued before.  A cross-appeal is only necessary when an appellant is seeking more relief than granted below.  Not only did the Court err but it did so without any authority.  The case cited as authority,Office of Child Support Enforcement v. Pyron, 363 Ark. 521, 215 S.W.3d 637 (2005), actually affirms the use of the “right result, wrong reason” doctrine.  In Pyron, the Court required a cross-appeal to request attorney fees, which were an additional relief not granted below.  While it did not impact the result of the case, this law threatens to severely impact future Rule 37 appeals in the works absent a cross-appeal.