Arkansas Criminal Appeals

Judge David Reynolds of Faulkner County handed down the first grant of relief on a Rule 37 petition on the last day of his circuit court position.  Judge Reynolds is now transitioning into the role of judge at the district court level in Faulkner County.  On this final day he ordered that Darnell Porter be given a new trial due to his trial counsel’s ineffectiveness.  Specifically, he found that the failure to sever the charges possibly led to Porter’s convictions and 45 year sentence.

Porter will now be brought back to Faulkner County to receive a fair trial and hopefully a better result.  The order can be found here.

Thank goodness Patti James won and the election is over.  I’ve got several interesting cases and developments to post about in the next few days.

The run-off is right around the corner for Pulaski County Juvenile Judge.  The two options are Patti James and John Hout.  Patti James is a family law attorney, while John Hout is a Pulaski County Prosecuting Attorney.

The choice for judge comes down to one question:  Do you want to be tough on crime or smart on crime?  John Hout’s website, speeches, and facebook page all tout his “tough on crime” policy.  Hout essentially promises to place two prosecutors in juvenile court to ensure that juvenile offenders spend as much time as possible behind bars.  Unfortunately, that approach fails.

“Tough on crime” policies have been advocated to win elections and appointments for decades.  For decades they have failed.  The achievements of “tough on crime” policies are increased minority resentment to government, increased racial profiling, increased imprisonment rates, and increased budgetary needs of law enforcement.  These policies fail to achieve a reduction in offenses or rehabilitation of offenders, which should be the goal of a juvenile court judge.  Thus, I support Patti James for Pulaski County Juvenile Judge, because smart on crime is the better policy.

Please click here for more information on how “tough on crime” policies fail.

In Jackson v. State, the Arkansas Court of Appeals affirmed a conviction for possession of marijuana with intent to deliver.  However, Chief Judge Vaught took the opportunity to write a concurring opinion that heavily criticized the officers involved and the trial court.

Below are quotes from Chief Judge Vaught’s three primary problems with this case:

• First, the bulk of the officer’s time spent during the stop involved his investigation of the validity of a rental contract and its accompanying coverage. A contract concerns civil law, not criminal law. It is inappropriate for the government to use its immense Fourth Amendment powers to investigate a contract.

• Second, for an officer to claim (and worse, for a trial court to accept) that it is reasonable to be suspicious that criminal activity is afoot because the officer observed a road atlas in a vehicle traveling out of state on an interstate highway is ludicrous. To the contrary, having an atlas (or some sort of global-positioning system) is to be expected and offers not even a hint of criminality.

• Third, I have watched the video recording of this stop. I saw the dog circle the vehicle several times. I heard the officer encouraging the dog that he could find it. I did not, however, see any indication that the dog alerted or altered its behavior in anyway. In fact, the officer’s last words to the dog were confirming that the dog had not alerted. However, the trial court saw the same tape and reached a different factual conclusion. I believe my interpretation of the dog search is validated by what happened after the dog “alerted.” Although the officer at that point would have probable cause to search, he did not do so. Instead, he further interrogated appellant. In what I think is best described as a probablecause “bluff,” the officer claimed that the dog had alerted then encouraged appellant to “help” the dog out and admit if there were drugs in the vehicle. This led to the roadside statement, which the court later found inadmissible. If the dog had alerted, and the officer believed it then (as he claimed that he did at trial), the dog would need no “help” from appellant to initiate a search. That’s rather the point of the dog alerting.

Dr. Jay Barth, politician and professor of politics at Hendrix College, recently weighed in on Arkansas Rule of Criminal Procedure 4.7.  He noted that 15 other states have enacted legislation or rules requiring the recording of interrogations and argues that Arkansas should have done the same.  The full article can be accessed here.  This issue was addressed a few blog posts ago with my sentiments closely mirroring those of Dr. Barth.

The Arkansas Court of Appeals heard oral argument today in Fischer v. Smith.  The case dealt with the issue of whether the custodial parent can relocate with the child.  The three judge panel was composed of Judges Hart, Gruber, and Glover.  Below are some lessons committed by even the seasoned attorneys appearing before the Court today.

• Have a theme!  It cannot be stressed enough.  The appellant did not have a theme and instead had probably 200 disjointed points and facts for the Court without theme or structure of how to apply these facts.
• Talk about the law!  The primary reason the Court accepted argument today was to deal with the application of the burden in relocation cases.  Instead, the appellant spent 99% of her time dealing with specific facts.
• Do not speak over the judges!  The appellee interrupted and spoke over the three judges continuously.  This is a serious error.  You are there to convince and instead you are creating enemies.  No one likes to be interrupted so do not do it.  Be quiet as soon as they look like they are about to speak.
• Know the facts!  The appellee responded to several questions with the assertion that he did not know because he was not the trial attorney.  You represent the client on appeal and your job is to know all of the facts.  If it is not in the record then you respond with that.  Otherwise, you should know it.
• Recognize what the judge is asking!  Each party failed in this regard multiple times.  The appellee defended a failed drug test by commenting that the test is subject to many failures and the trial court is aware of that.  Judge Hart noted that the only thing in the record is the test.  The appellee stated that it was in the record, but missed the point that all of his talk about the failures of the drug testing system cannot be found in the record.

These are all common mistakes.  I certainly do not think the attorneys today did a poor job, but seeing the mistakes other attorneys make can help us all to improve.