Court of Appeals Announces Decisions In 11 Criminal Appeals

18 04 2012

Today, the Court of Appeals dismissed one appeal, reversed and dismissed one conviction, affirmed eight convictions, and ordered rebriefing in one case. 

After giving a CLE presentation on properly preserving arguments and putting the correct documents in the addendum last week, the errors continue to mount.  The CLE presentation was basic but hopefully a person or two learn something from it.  In Luevano v. State, the court ordered rebriefing for not supplying all of the orders being appealed from.  In I.P. v. State, the court ruled that the motion for directed verdict was not renewed at the close of all of the evidence; therefore, the motion was not preserved for appeal.  And in Sipe v. State, there were multiple failures to preserve.  First, the motion for directed verdict was not specific nor was it to the lesser included offense for which he was convicted.  Second, the defendant did not proffer a requested jury instruction. 

In Fett v. State, Judge Jo Hart wrote the majority opinion reversing and dismissing Fett’s conviction for simultaneous possession of drugs and firearms.  The trial court erred in denying Fett’s motion for a directed verdict on the charge because the firearm was not loaded nor was there any ammunition found in the residence.  Consequently, Fett’s conviction could not stand.

Lastly, in Fields v. State, the court found no abuse of discretion in failing to the poll the jurors on whether they read the paper that morning.  Fields’ trial ended and the jury went home and came back to deliberate in the morning.  The newspaper wrote an article on the case and noted his prior convictions, a fact the jurors had not been exposed to.  Fields sought to ask the jurors if any of them had read that article and the judge denied the request.  The Court of Appeals ruled that Fields could not prove they read the article; therefore, he could not prove he was prejudiced.

The ruling in Fields is wrong.  If a defendant is not allowed to ask the jury then how will any defendant ever prove prejudice from the existence of an article that would influence the verdict?  Trial judges can protect their jury’s from ever being disqualified by simply not allowing inquiry into their goings on during recess.  This decision makes the jury’s admonition against reading articles on the trial useless because there is no way to ever prove they violated the admonition.  This ruling was wrong, and the trial judge likely permitted a verdict to be rendered unjustly due to a newspaper article.


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Sentencing Aspect of Paschal v. State

3 04 2012

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.


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Categories : Arkansas Supreme Court

Justices Get Personal: State v. Paschal

30 03 2012

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.


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Categories : Arkansas Supreme Court

Theme of the Week: Failed to Preserve

28 03 2012

The Arkansas Court of Appeals affirmed two cases, dismissed one, and ordered rebriefing in two.  The failure in the two that were affirmed were that there were no contemporaneous objections. 

In Chestang v. State, the Court of Appeals simply restated the longstanding principle that directed verdict motions must be made to elements of the lesser included charges to preserve a challenge to the sufficiency of the evidence.  This is the most commonly made error by trial counsel.  In addition, the appellant argued that allowing an officer to testify why the appellant was a  maximum security inmate was reversible error.  The only objection made at trial was that the answer was not within the personal knowledge of the officer.  It was in fact within the personal knowledge of the officer and the trial court correctly permitted the testimony.  On appeal, the appellant argued the answer was hearsay.  The Court of Appeals refused to address this argument because it was not presented to the trial court.


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Categories : Arkansas Court of Appeals

Excerpt From Judge Hart’s Inspiring Dissent in Wigley

23 03 2012
Below is an excerpt from Arkansas Court of Appeals Judge Jo Hart’s dissent in Wigley v. State.  Judge Hart wrote a powerful dissent of one against a four judge majority.  The final paragraphs below demonstrate exactly why she is perfect to be on the Arkansas Supreme Court.
 
“If there is to be liberty, then its survival depends upon the judiciary guarding it jealously. Our commission is to require that the government act faithfully in accordance with the Fourth Amendment, not to repeatedly absolve its warrantless searches and seizures. As Justice Bradley advised, “[I]llegitimate and unconstitutional practices get their first footing … by silent approaches and slight deviations from legal modes of procedure…. It is the duty of the courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachment thereon.” Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 29 L.Ed. 746 (1886).
Although the Bill of Rights was a product of human efforts and, therefore, inherently imperfect, what the Founders left us, in my view, is far better than any alternative offered to date. We should, therefore, inspire compliance by the government, and in doing so, we would protect the law-abiding citizen from unreasonable intrusion by the government. The intent of the Fourth Amendment is not to protect criminals, but it is to establish rules to protect the innocent and to maintain the security of the citizenry in their own homes. By enforcing this rule, we would not only follow the mandates of the law, but we would also confirm to the people our continued faith in the vision given us by our Founders. It is upon that foundation that I respectfully offer this dissent.”

Wigley v. State, 73 Ark. App. 399, 409, 44 S.W.3d 751, 759 (2001) (Hart, J., dissenting).


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Patti James and Judge Jo Hart Have My Vote!

15 03 2012

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.


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Rant Re Arkansas Appellate Judges/Justices

13 03 2012

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.


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(In)Justice Danielson: State v. Tyson

13 03 2012

I have given it a few days before writing about this case.  There is still hope in the petition for rehearing considering I need to sway only one justice to my side.  The problem is that there is little I can say that the dissenting justices did not already say nor can I say it more eloquently.

Last Thursday in State v. Tyson, the Arkansas Supreme Court ruled that even though an officer completely misread the rules of criminal procedure, she relied in good faith on the warrant signed by a judge.  What it proves to us all is that judges don’t read the affidavits or warrants before they sign them.  Unfortunately, when a judge signs a warrant, no matter how pitifully supported it is, the Arkansas Supreme Court will uphold the officer’s actions in reliance on that warrant.

Public policy ramifications aside, it was a horrible decision based on Arkansas case law.  Arkansas case law makes it clear that for the State to appeal a decision suppressing evidence the decision must have widespread ramifications and not be an issue of fact.  Both of those are lacking here.  There has never been another officer who has misinterpreted Rule 13.2(c)(iii) before.  So how can there be widespread ramifications?  Second, the Arkansas Supreme Court has already said that the issue of good faith is necessarily one of fact and is not reviewable on State appeal. 

Additionally, the trial judge determined on the record that the officer was not actually concerned with what she claimed to be and discredited her testimony.  The Majority’s opinion apparently reevaluated her credibility and found her to be credible.  I cannot remember one time the Arkansas Supreme Court found a defendant credible after a contrary finding by the trial court.

Nevertheless, the real problem here is one expressed perfectly in the play A Man for All Seasons.  It appears as though the Arkansas Supreme Court and the State of Arkansas are willing to chop down all the laws to get at one man they believe is bad.

Margaret More: Father, that man’s bad.
Sir Thomas More: There’s no law against that.
William Roper: There is: God’s law.
Sir Thomas More: Then God can arrest him.

William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I’d cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!


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Categories : Arkansas Supreme Court, My Appeals

Court of Appeals Dismisses Two Convictions

29 02 2012

The Court of Appeals had affirmed 36 appeals this year and only reversed one going into today.  The Court of Appeals made a significant jump in ruling for the defense with two cases resulting in charges dismissed.

In Eagle v. State, the Court of Appeals reversed and dismissed Eagle’s conviction based on a violation of speedy trial.  Eagle was arrested February 7, 2008, and tried on February 24, 2011.  Clearly more than 365 passed from arrest to trial, but the State argued that after the excludable time was accounted for it did not amount to a speedy trial violation.  It came down to an event where the trial court was setting trial and announced a January date.  Defense counsel responded that he had a conflict with that date and the Court then set it for February.  The State argued this was excludable because it was defense counsel that caused it to be moved to February.  The Court held that the trial court could have set for earlier in January, December, or even November and the time was properly charged to the State.  Consequently, Eagle was tried 11 days over the 365 day limit.

In Dorsey v. State, the Court of Appeals addressed another extremely rare scenario.  Dorsey’s 10 year imposition of sentence was revoked based on a sale of drugs.  At the time Dorsey received the 10 year suspended imposition of sentence he also plead guilty to 3 class C felonies for which he received concurrent 6 year suspended imposition of sentences.  Dorsey claimed that he plead to the 3 class C felonies to have the State nolle pros the Y and that he was never given 10 years suspended imposition of sentence on that charge.  The plea statement and documents by the trial court were unable to prove that Dorsey voluntarily plead guilty and received a 10 year suspended imposition of sentence; therefore, he could not be revoked because there was nothing to revoke.  The Court of Appeals dimissed the revocation.


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Categories : Arkansas Court of Appeals

Arkansas Law Review Article on the Dixon Rule

24 02 2012

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.


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Categories : Uncategorized

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