Arkansas Criminal Appeals

Patti James is running for Juvenile Judge in Pulaski and Perry County.  She is a long-time family law attorney in Pulaski County and a co-founder of the James Law Firm.  Patti’s entire career has been dedicated to families and children in need of direction, resolution, and advice.  She is married to Bill James and together they have three children.  Her supporters vary from criminal defense attorneys and prosecutors to African-American pastors and stay at home mothers.  To learn more visit james4judge.com

I also wholeheartedly endorse Court of Appeals Judge Jo Hart for the Arkansas Supreme Court.  She has served the citizens of Arkansas equally regardless of race, religion, economic status or otherwise.  She has been fair in her decisions and she possesses an abundance of legal knowledge.  Her small town roots and military service have certainly given her a unique perspective compared to the majority of the appellate judges across the nation.  In addition, she gathered over 15,000 signatures to avoid paying the filing fee and more importantly to meet more Arkansans and hear their stories.  That shows an incredible determination as opposed to a candidate that simply writes checks for votes and avoids hard work.  Her life has been dedicated to the people of this Country and the State of Arkansas.  My vote is certainly to have her continue that in the role of Justice on the Arkansas Supreme Court.

I spend a great deal of time criticizing the appellate judges and justices for a few reasons.  First, I honestly think they are wrong some of the time.  When they are I think it is my right to speak up on the legal and/or public policy reasons that demonstrate their error in judgment. 

Second, and more importantly, I do it for some form of accountability.  No I do not have grand illusions that millions of people read this blog or listen to me speak on the issue.  I understand that maybe I only reach a couple of people but that is enough.  Arkansas elects their judges/justices and needs to know when they are creating law detrimental to the rights of Arkansas citizens.  The criticism is from a sense of understanding what the plights of citizens that live in areas constantly under attack by the police are.  The understanding of how these decisions aren’t just theoretical ivory tower decisions but that they have real life implications for the abuse and coercion the government can exert on its people.  That is why I show disdain for decisions that allow officers to bust down doors at night on a blatant misreading of the rules and provide for no relief.  Even more upset I get at decisions where the court allows an officer to pull someone out of the car because it is late at night and they have a prior criminal record.  Or most recently, the case where the Court of Appeals upheld a stop by an officer who failed to understand the law he is charged with enforcing. 

In a system where we elect our judges, we must be mindful to also keep them accountable.  Their decisions impact the citizens of the State as much as the General Assembly.  For the most part we have some very intelligent and dedicated public servants.  I have no doubt that the members of our appellate courts are qualified and genuine.  I do have doubt that they always make the right decisions and for that I will continue to do my part to hold them accountable.  However, at no time will I condemn them as being anything other than wrong on the particular ruling because we all make mistakes but we need to be held accountable.

To conclude, I will say that at this last AACDL conference we had the privilege of  hearing from Judge Abramson from the Court of Appeals.  Unfortunately, when asked about his particularly egregious decision in Mitchell v. State he declined.  I hope that one day he will face the decision openly and honestly admitting his mistake.  For now, I will trust that he did his best, but made a mistake.

The newest edition of the Arkansas Law Review includes a comment written by Christopher Stevens on the Dixon Rule.  The Dixon Rule is “a tool used by Arkansas appellate courts to dispose of an issue without deciding that issue because of deficiencies in the way the issue was presented in the appellate brief.”  Christopher Stevens, Comment, Deciding Not to Decide: A Short History of the Dixon Rule and a Way Forward, 64 Ark. L. Rev. 1121 (2011).  Stevens’ comment focuses on criticisms of the Rule by showing indefensible and inconsistent uses and phraseology of the Rule.

First, Stevens notes that the Rule was developed in 1977 yet was used relatively sparingly until the mid-1990’s.  Until the mid-90’s, the Rule was used in less than three percent of all opinions.  Since then, the Arkansas appellate courts have rapidly increased their usage of the Rule.  In 2010, the Dixon Rule was cited in over eleven percent of all opinions.  One in every ten opinions involves an appellate decision avoiding the merits of an issue because they find the issue undeveloped or supported by reasoning or law.

Second, Stevens writes about the importance of the judiciary addressing the issues  and even argues that the democratic legitimacy of the judiciary system is enhanced when the court strongly responds to the arguments of the parties before it.  A responsive court also provides the public with more notice of the law and how it will adjudicate certain claims.  Finally, Stevens argues the judiciary leaves participants unfulfilled and upset when their claims are not all adjudicated on the merits.

Stevens also looks at cases citing the Dixon Rule and the various permutations it has used from failure to use convincing authority, failure to cite legal authority for the proposition, or both.

Finally, Stevens most impressive contribution to the issue, comes in his in-depth analysis of the Dixon Rule’s usage in several cases.  Most incredibly, in Walters v. Dobbins, 2010 Ark. 260, the Arkansas Supreme Court refused to address an issue of free speech under Article 2 Section 6 of the Arkansas Constitution.  The Court stated that the appellant only cited to federal case-law and failed to cite any Arkansas case-law.  Essentially, the Court was refusing to address an issue because it was of first impression.  How incredible is it that the high court refuses to address the claim because it has not been addressed before in Arkansas.  Additionally, in Davis v. State, 2009 Ark. 478, the Arkansas Supreme Court invoked the Dixon Rule to avoid addressing a claim about the merits of the Skip Rule.  The Court stated that there was no citation to authority or convincing argument.  Stevens noted that the appellant’s argument on the issue was over a page and contained citations to three cases on the issue. 

Stevens eloquently argues for a consistent standard and a greater willingness of the courts to address issues for the good of society to know the law and for the parties before the court to feel the process was meaningful.

Today i’m going to throw some thoughts out there to express some random concerns.

First, case law exists very heavily in some areas of criminal law and not in others. The reason is that people are forced to go to trial for things like murder, rape, aggravated robbery, possession of controlled substance with intent. The offers on those offenses are usually not very good and the possible reward of going free is usually too enticing. Once convicted the defendant appeals. Whereas on smaller issues there is not enough law to properly be able to advice clients. The reason is because the offers are usually probation or a fine and the cost of appealing is more than the representation itself. Therefore, on issues like DWIs, expungements, and misdemeanors the law is unclear, poorly worded, and case law gives almost no guidance. This is a problem because these offenses are much more common than the Y felonies discussed above. The worst part of it all is that if you are going to persuade most district court judges of your position you will need law directly on point from the State of Arkansas. Without a case all but saying your client’s name, you aren’t going to get a district court judge to buy a legal argument. All that to say, something has to be done. I don’t know if it’s lowering the fees to appeal or possibly even having the appellate courts waive fees on certain issues to encourage law to be made. In the end i’m probably just complaining.

Second, I was granted oral argument for the Confrontation Clause at sentencing appeal. As one of the most significant issues of the day I hope i’ll be up for the challenge on September 22, 2011. I would hate to think i’ll be known as the guy who lost Arkansas defense attorneys the right to confrontation at sentencing for good. The kicker is that the victim in the case has called and written me hoping that I win because she claims to have been pressured into testifying against my client. Which leads me to point three.

Third, a conviction does not magically go away because a victim recants or you have a new alibi. Weekly I get a letter from an inmate or a client on appeal telling me that the victim has recanted or they can now prove their innocence in some way. Most of the time they don’t really have the evidence they claim but sometimes they do. Sometimes if there was a new trial with that evidence they would be set free. Some of these people are doing life in prison. The problem is that there are often no legal options other than going through the parole board to the governor for a pardon. Most of the time a direct appeal or rule 37 are either inapplicable to their situation or they are out of time for them. Additionally, writs of error coram nobis are granted with extreme rarity and for very few reasons. And on top of all that there is a hefty fee for an attorney to jump through all those legal hoops and “possibly” get you a new trial. Lesson to be learned is that ADC is good at keeping people once it gets them.

Those are my thoughts until the appellate courts resume work.

Thanks for reading that long rant!

There are a few issues you’ll notice that I’m passionate about.  One of them is ending checkpoints because they do not comply with the Arkansas Rules of Criminal Procedure.  They are  a massive exception to the Fourth Amendment.  Another topic is the one I want to address today:  failure to use a turn signal.

The law seems quite clear that one need only use a turn signal “in the event that any other vehicle may be affected by the movement.”  Ark. Code Ann. § 27-51-403 (2010).  Police everywhere seem to think that one must signal for every lane change and every turn.  Continually, I see individuals pleading guilty to offenses when they were stopped for not using their turn signal even when no one was affected.  The real issue lies with the criminal defense attorneys, both private and public, and the judges out there who do not know the law.  An experienced criminal defense attorney should know this law and be able to use it to suppress evidence.

Fortunately, that is all going to change in the next six months or so.  While sitting in Garland County Circuit Court this morning, a gentleman by the name of Larry Honeycutt had his client a conditional guilty plea so that he can appeal the denial of a motion to suppress.  The client was pulled over for failing to signal and charged with DWI III.  Obviously, the circuit court ruled against him, and now it’s off to the appellate courts.  One can only pray that with massive amounts of persuasive authority, as well as an attorney general opinion on our side, there will be a victory for the defense.  Things can always go wrong, but I feel confident that the people of Arkansas will be free of police intrusion for failing to signal.

Although, we all know that will just lead to more “crossed the center line” and illegitimate speeding claims in order to justify pre-textual stops.  For today, I’ll go ahead and celebrate the upcoming victory…it may be small but we have to take what we can get!

In one of the most hotly debated decisions of the year, the Court announced a surprising decision reversing the trial court’s denial of transfer to juvenile court.  The result came about, not because the defendant qualified for transfer under Arkansas Code Annotated section 9-27-318, but rather due to the State failing to turn over the discovery and witness lists in a timely manner.

Legally, I cannot possibly agree with this decision.  I do not see any authority that allows the Court to reverse and transfer the case due to very slight prosecutorial misconduct.  Although the majority puts emphasis on the fact that defense counsel claimed surprise and prejudice, there is absolutely nothing in the opinion that would lead someone to buy that argument.  There was no prejudice.  Anyone who has dealt with a juvenile transfer knows that this was an open and shut case.

The appellant was charged with capital murder.  He planned out this act in great detail and with a high level of sophistication.  He also had a good deal of criminal history.  If this case was eligible for transfer, then all persons should have their cases transferred.

On the upside, I’m thrilled about the Arkansas Supreme Court sending messages to prosecutors not to hide the ball and play discovery games.  This was a very severe punishment for what was a very minor discovery violation.  As a criminal defense attorney, I’m excited about the Court’s decision; however, as an appellate attorney, I’m quite leery of the majority’s free-wheeling style.

Wednesday’s are always exciting because new law comes out of the Arkansas Court of Appeals.  Usually around 9:30 am, I begin refreshing my browser, waiting for the new cases.  At least three out of every four weeks, a case of mine has something happening, and  so opening a case name that you’ve worked on for months can be exhilarating.  This morning, I came back from Hot Springs DC believing that I had missed that rush, only to discover that opinions weren’t coming out today.  Critique of the court for another date:  why don’t we have advanced notice?

On another note…I was welcomed back to the office by a motion for continuance in the appeal of Van Kirk v. State.  It is the third continuance by the State, and normally I would have a problem with this; however, this issue of the confrontation clause at sentencing deserves a great deal of time and thought.  As a citizen of this state, I am glad the Attorney General’s office is carefully reviewing this issue and will hopefully write a thoughtful brief.

Before updating the blog on what I’m currently working on, I will list some of my recent endeavors.

On May 12, 2011, the mandate came down in the case of Slater v. State reversing and dismissing a 40 year conviction for delivery of a controlled substance for insufficiency of the evidence.  It was certainly not without contention.  The decision by Judge Gruber was a 4-2 decision.  Assistant Attorney General Karen Wallace filed petitions for reconsideration and review.  Fortunately, each court declined their respective petition.  One thing I learned is that the appeal process is a cake walk compared to getting ADC to release someone after their conviction is reversed.  Slater is scheduled to meet with the Parole Board this month regarding the revocations he picked up on the dismissed offense.

On June 2, 2011, I had oral argument before the Arkansas Supreme Court on the State’s appeal from a declaratory judgment.  The issue involved was the interpretation of the former deadly weapon enhancement (A.C.A. 16-90-121).  The difference in interpretation for my client is 20 years in ADC.  The blog will definitely be updated regarding the opinion in this matter.

Currently, I am working on an appeal involving the confrontation clause at sentencing.  While the Supreme Court refuses to address the issue, the Arkansas Supreme Court will have no choice but to provide an answer.  The Appellant’s brief has been filed, and the Appellee’s brief is due June 15th.  Oral argument will certainly be requested considering the importance of this issue and the possible ramifications.