Arkansas Criminal Appeals

I don’t write about habeas appeals very often because they are judged by the Eighth Circuit Court of Appeals but I’ve got one that involves Arkansas appellate courts.

The client’s name is Max Eastin.  A search warrant was served on his houseboat based on a confidential informant’s statements.  The evidence discovered as a result led to a conviction for manufacturing methamphetamine.  The affidavit for the search warrant did not state anything about the reliability of the informant as required by Arkansas Rule of Criminal Procedure 13.1.

His trial counsel knew enough to file a motion but not much more.  His trial counsel failed to argue the motion.  The Court of Appeals reversed his conviction because the affidavit failed to establish the reliability of the informant.  Unfortunately, the Arkansas Supreme Court found the argument was not preserved because he did not argue the motion at the pre-trial hearing.

Easy win on ineffectiveness right?  Wrong.  The trial court and Arkansas Supreme Court found that there was no merit in a motion to suppress.  His case has got to make you wonder:  how do the Court of Appeals and Supreme Court see the same issue so differently?  Not only did they radically differ on whether the argument was preserved but they also disagreed about whether there was probable cause for the warrant to be issued.

The only real question on habeas review is whether Eastin should get the benefit of the Court of Appeals judgment because if it was preserved their decision would have stood.  That’s what I’m arguing.  I guess we’ll see in the end.  Nevertheless, it would be a horrible feeling to have your case reversed and essentially dismissed only to then be reversed again by the Supreme Court because your attorney failed to follow through on the motion.

Heading into the new year there are two post-conviction cases that have been with the firm for quite a while and will be for the conceivable future.  Both involve men accused of sexually assaulting their nieces at their house over a considerable period of time.  However, that’s where the similarities end.

Vankirk has been written about extensively in the news and on this blog.  His case involves allegations that he sexually assaulted his niece when she was younger.  After the first day of trial had already begun, Vankirk pled guilty to all three counts of Rape.  He was convinced by his trial attorney that it would win him points with the jury that he admitted his guilt and they would take it easy on him.  They did not.  He was sentenced to three consecutive life sentences.  Fortunately, over trial counsel’s objection, the State played a video of his niece’s interview with an investigator.   I was hired for the appeal a few weeks after the sentence was pronounced.  The sentenced was reversed when the Arkansas Supreme Court became the first court to broadly hold that the Confrontation Clause applies at sentencing.

After vacating the sentence, Vankirk is now taking aim at the guilty plea itself.  He alleges that he only plead guilty because of the erroneous advice of his trial counsel.  He asserts that he is not guilty and wants a trial for the chance to prove it.  He has letters from his niece indicating that she was forced to say Vankirk raped her or she would be sent off to an orphanage.  Currently, the motion to withdraw the guilty plea is pending before the Greene County Circuit Court with a hearing likely to come in late February or early March.  The State believes the motion is untimely, and if the Court agrees, it could lead to another big case before the Arkansas Supreme Court.

Estrada has been with the James Law Firm since I was a clerk.  A public defender represented Estrada at trial and then Estrada hired our firm for the appeal.  The appeal was unsuccessful because trial counsel failed to file any motions or object; consequently, there were no grounds for appeal.  The family then hired us for a Rule 37 Petition for Ineffective Assistance of Counsel (“IAC”).  Estrada’s IAC claim involved an extraordinary amount of work to discovery all of the investigatory and legal failures on the part of Estrada’s trial counsel.  The hearing lasted a full 8 hours,  involved countless witnesses, and created over 400 pages of testimony.  After reviewing the hearing and record for 3 months, the trial judge filed a 30 page order granting the petition and ordering a new trial for Estrada.

The State has recently filed a notice of appeal and we are currently awaiting the record to be filed.  Success on the appeal looks promising.  Rule 37 petitions are rarely granted and in the event they are, they are rarely overturned on appeal.  My expectations are not only to win the appeal but to establish more Arkansas case law to support IAC claims in the future.  The challenge is going to be making sure that Estrada wins his new trial.  The inconsistencies in the alleged victim’s story, the improbability of her statements, and the character of Estrada all provide ample ammunition for the trial ahead.

The Court of Appeals issued an opinion in Villagran v. State this week.  I do not say it often (enough) but the Court of Appeals got it wrong.  Judging from the opinion, it appears the Court honestly did not read Villagran’s briefs or the Record.  Rarely does an appellate court get the facts wrong, but they certainly did here. 

Villagran had two issues on appeal: 1) trial court erred in failing to suppress the statements made after invoking the right to counsel; and 2) trial court erred in excluding a witness who would have testified that the eyewitness was biased.

On the first issue, the Court did not address whether Villagran invoked his right to counsel (but did say it was a close call) and instead held that the statements were used as impeachment, which is allowed even if the statements were taken in violation of the right to counsel.  The only problem is the statements were NOT used as impeachment.  They were used to affirmatively attack Villagran.  The Court missed the whole point of Kansas v. Ventris, 556 U.S. 586 (2009), which says that the defendant must first “testify in a way that contracts prior statements.”  Villagran never testified in a contradictory way.  The Court got it wrong and there will be a Petition for Rehearing filed shortly.

On the second issue, the Court held that the eyewitness was never given an opportunity to admit or deny bias; therefore, extrinsic evidence of his bias is not allowed.  First, the Court is incorrect because you only have to be given a chance to admit or deny the facts that would show bias.  Here, those facts would be that the eyewitness is in the fake identification market, which Villagran is as well.  The Court’s blunder is because the eyewitness was asked if he sold fake identifications and it was quoted in the Reply Brief.  “Isn’t it true that you and your brother used these cards, used different names, put your phone numbers in those and that’s how you sold your fake IDs and you didn’t never let people know your true names?”  To which the eyewitness responded, “I don’t know anything about that.” 

It isn’t the end of the world but it is pretty disappointing when a man’s life is at stake and so many people have worked so hard to give him a fair trial, meanwhile the Court of Appeals fails to recognize facts that were quoted in the briefs.

The first jurisdiction in the country to grant criminal defendants the right of confrontation at jury sentencing is ARKANSAS!  In Vankirk v. State, the Arkansas Supreme Court ruled that the Arkansas Constitution and United States Constitution each grant a right of confrontation at jury sentencing.  No court has ever extended the right of confrontation to jury sentencing regardless of whether the jury was “fact-finding” or not.  It is a great day for criminal defendants in Arkansas.  Hopefully courts in other jurisdictions will now have persuasive authority to lean on in extending the privilege in those jurisdictions. 

For the case itself, Van Kirk will be sent back to Greene County for a new sentencing.  The victim has allegedly recanted but with a 25 yr minimum it won’t be much of a victory if the jury runs the sentences consecutive.  Well, I will leave the speculating for another day and enjoy the rare victory.

The decision didn’t come out this week.  The Arkansas Supreme Court typically does an outstanding job of having a decision published two weeks from submission.  Thursday morning I was on pins and needles awaiting word until I realized the Court didn’t issue a decision in the case.  The Court instead issued an opinion in last week’s civil case.  So if they issue a decision in Van Kirk next week they can still keep their two week average for decisions intact.  Now I just speculate on what it means that they are taking longer.  My guess is that there is a dissent or concurring opinion being circulated.  At least that will make the issue more interesting if there is a split.  It’s always enjoyable to read a passionate dissent in which the dissenter picks apart the fallacies in the majority’s opinion.  Now I’m even more excited about the opinion because even if I have lost I may have convinced one of the seven justices.  We shall see…for all I know it could be an uneventful 7-0 decision.

Yesterday, I had oral argument at the Arkansas Supreme Court in Van Kirk v. State.  The only issue addressed was whether the confrontation clause applies at sentencing.  The case can be summed up briefly.  Van Kirk pled guilty to 3 counts of rape.  The State and Van Kirk agreed to a jury sentencing.  The State played a video of the victim’s interview with the investigator on the case.  Van Kirk objected that the video violates his confrontation clause rights.  The trial judge ruled that the rules of evidence do not apply to sentencing proceedings nor do they apply to victim impact testimony.  Van Kirk was given 3 consecutive life sentences.

The most notable event occurred when Justice Corbin asked if there was harmless error and I retorted that the State did not make that argument in the brief and I would hope this Court would hold to its case law and not make arguments for either party.  Justice Corbin and a few of the other Justices had a good chuckle at that one.  Generally, the Justices seemed very interested and it certainly made for a hot bench.  It was clear that several of the Justices had a preconceived notion of how to avoid addressing the issue and ruling on harmless error, waiver, failure to preserve, etc.

I’ll give a Justice by Justice recap of the argument.

Justice Baker – Asked one question, “Why didn’t Van Kirk just subpoena the victim?”  It was a good one that certainly took me by surprise in rebuttal.  I answered that he shouldn’t have to subpoena a State’s witness because he should be allowed to cross-examine her.  However, I admitted all prejudice would be lost if he had subpoened her. As the saying goes, “There’s the speech I planned to give, the one I gave, and the one I think of driving home.”  I certainly should have remarked that he hardly could have anticipated not being able to cross-examine the victim at sentencing since every trial court in Arkansas allows for it.

Justice Gunter – Asked only one memorable question to the State, “Doesn’t Mr. Short make a logical policy argument for the application of the confrontation clause?”  I not only appreciated this question but the State found it to be a difficult one to answer.  To be honest I think it was difficult to answer because the policy reasons do support its application.

Justice Corbin – Easily the most active member of the bench.  He questioned me repeatedly on whether Van Kirk waived his right to confrontation (b/c Van Kirk said he would not object if the interview were read to the jury but would object to it being played as a video) and about whether it was harmless error.  He equally found the State’s position that the confrontation clause only applies in cases where the jury is fact-finding at sentencing to increase the possible range of punishment to be meritless absent a policy reason to support it.  Justice Corbin seemed to greatly appreciate policy reasons to support argument and not meaningless case citations.  Also, I must note, Justice Corbin gratiously complimented the quality of the oral argument before the Court.

Chief Justice Hannah – Asked a moderate amount of questions.  The highlight with Justice Hannah was his question of whether Van Kirk preserved his objection under the Arkansas Constitution.  Justice Hannah surely wanted me to concede that he did not.  At trial the objection was simply that it violated the confrontation clause.  There was admittedly no specification of whether it was the state or federal confrontation clause nor were there two separate rulings.  However, my argument was that it was unfair for the State to get to pick which one he was objecting under; instead, it should be preserved under each.  It wasn’t my strongest answer but it simply wasn’t a concession I was willing to make and it was a decision I made well in advance.

Justice Brown – Seemed very concerned with federal law on the issue and wanted to find out if there was a case directly on point.  Unfortunately, there is not.  Justice Brown did ask where the line should be drawn and if I was only asking that the confrontation clause applies to testimony or to documents as well.  I not only said that it applied to it all but that I was advocating that the confrontation clause should be applied to judge sentencing hearings as well.  I wasn’t going to leave the Court with an arbitrarily drawn line.  Instead, I argued that if it would violate the confrontation clause at trial then it should violate the confrontation clause at sentencing.

Justice Danielson – Very concerned about one issue: whether Van Kirk should have just objected to improper victim impact testimony.  I wasn’t positive how it was improper nor was I certain why it was so important but I could tell it was very important to him.  I told him that certainly a hearsay objection would have been the best objection but it wasn’t made.  I said that we are fortunate that it wasn’t because now this Court has the opportunity to address the confrontation clause issue.  I have a feeling he is going to find a way to find the confrontation clause inapplicable at sentencing because he believes there will always be a “better” objection out there.

Justice Henry – She was more active than times in the past.  She pointed out that the right of confrontation is only given to “accused” and after a guilty plea one is no longer “accused.”  My argument in response was that he is still being accused of some things he didn’t plead to, and more importantly, the other Sixth Amendment rights still apply. 

All in all it wasn’t the greatest performance by myself but the Justices were as informed, active, and interested as one could possibly hope for.  Their level of interest and probing questioning created a very intense and exciting oral argument.  I could not thank them more for the respect they showed me and my argument throughout.  I do not think they will rule in my favor because to do so would be to break new ground but I do feel like my client has fully had his day in court.

The blog has taken a few days off with the AACDL conference in Tunica, MS but the news is exciting.

Last week, the Arkansas Supreme Court affirmed the circuit court’s decision in  Ray Hobbs v. Chancey Baird.  Justice Danielson’s opinion was written in a very straightforward and concise manner.  The Court held that the former deadly weapon enhancement statute allows for a reduction of sentence through meritorious good-time credit after serving the first ten years of the sentence.  This is going to make a dramatic difference in the sentence of Chancey Baird.  He will be eligible for parole on the enhanced offense after 15 yrs instead of 30 yrs.  After the mandate comes down, I will be contacting ADC to ensure that there will be a thorough review of all inmates currently serving flat time under this enhancement.

This is a good victory for inmates and hopefully no more suits will be needed to rectify the interpretation for everyone already victimized by ADC.