Arkansas Criminal Appeals

After a huge decision last week in Erickson Dimas-Martinez, the Supreme Court has continued its surge of protections for criminal defendants.  This week the Supreme Court authored two important decisions in criminal defense.

In Mendez v. State, the Court was faced with the task of clarifying Arkansas Rule of Evidence 1009, which deals with translations of recordings or documents.  The Rule comes into effect when parties disagree about the translation.  Here, Mendez used certified interpreter Nicolas Durand (whom I must say is amazing) to interpret and translate the audio recording of an interrogation.  Durand’s interpretation was that Mendez stated that he “did not” grab the alleged victim’s neck.  The State’s interpreter translated the recording to say that Mendez “did” grab the alleged victim’s neck.  The problem for the State was that their interpreter was not certified and in fact failed certification exams.  Therefore, according to Rule 1009, the only interpretation that should have been permitted is Mendez’s because it was done by a certified interpreter.  The Court allowed in both translations, which the Supreme Court ruled was reversible error.

The Supreme Court announced a huge shift in policy in Smoak v. State.  Previously, the Supreme Court had adopted the policy that criminal defendants must either elect to deny the accusations or assert an entrapment defense but could not do both.  In Smoak, the Court adopted the Mathews rule from the Supreme Court of the United States, which holds that a defendant may argue inconsistent defenses so long as substantial evidence supports each defense.  This is an important shift and one that impressively recognizes that defendants should have the full array of possible defenses to any charge considering their liberty is at stake.

There was a powerful dissent in Smoak that argued that Appellant did not preserve the issue but agreed with the Mathews rule.  Appellant never proffered an entrapment defense instruction and the dissent argued that it should prevent them from arguing it on appeal.  While I think typically the Supreme Court goes out of its way to not address issues, here the Court did just the opposite.  The Court took sympathy on the trial attorney because she was threatened with contempt for continuously arguing that she should be allowed to have the jury instructed on inconsistent defenses.  To be honest, Justice Corbin is usually one of the first to come to the defense of the rights of Appellants but here he recognized the longstanding rule that an Appellant must proffer the instruction to preserve it for appeal.  Regardless, good law was made and it appears the several members of the Supreme Court that are leaving the Court soon are trying to go out with a bang!

While it was an uneventful week for the Court of Appeals, it was a huge week for the Arkansas Supreme Court.  Although not important in the criminal world, the Arkansas Supreme Court upheld the trial court’s finding that the punitive damages cap was unconstitutional.  However, the truly important case decided was Erickson Dimas-Martinez v. State.

This was an appeal from a death sentence, which I would argue plays a large role in the court’s decision to reverse although the court never explicitly says so.  From oral argument it appeared the real issue was the Caldwell violation where the trial judge repeatedly stated that the Arkansas Supreme Court would review the decision with a fine-toothed comb.  However, in Justice Corbin’s opinion he chose not to address that issue because the case was reversed on other grounds and because the trial judge has since retired Corbin did not feel the issue would arise again.

The issue that ruled the day, and has since created international buzz, deals with juror misconduct and the failure of the trial judge to declare a mistrial or replace the juror with an alternate.  There was one juror who slept through part of the trial and another who tweeted during the trial and deliberations.  The juror who slept was supposedly only out for five minutes of technical testimony.  The tweeting juror allegedly never corresponded with anyone.  Therefore, the State argued that because there was nothing “important” missed by the sleeping juror and there was no back and forth in the tweets there could not be a showing of prejudice.  Justice Corbin ruled that because the two jurors so adamantly disobeyed the judge’s instructions it could be presumed that they were not going to follow any of his instructions, which deprived the defendant of a fair trial.

This decision sets a very impressive precedent that should heavily impact trial judges in the future.  However, while trial judges are going to focus on taking away cell phones or monitoring jurors closer, the real focus needs to be on trial judges recognizing when a juror is not following or is not capable of following his instructions.  It was not the sleeping or tweeting that got the case remanded for a new trial, it was the simple fact that the judge recognized they were not following his instructions and failed to replace them with jurors who would take their job seriously.

As mentioned in a previous post, Janice Vaugn’s performance at oral argument was far superior to the performance of the Assistant Attorney General, Eileen Harrison.  While it likely did not influence the Court’s ultimate decision, Ms. Harrison’s claims at oral argument that as long the juror heard the majority of the testimony there is no problem, and that the tweeting juror actually did not defy any of the judge’s orders, certainly reinforced that the Court was deciding for the correct party.

This morning oral argument was heard at the Arkansas Supreme Court in the case of Erickson Dimas-Martinez v. State.  The jury sentenced Martinez to death.  There were two primary issues before the Court.

First, whether the trial judge committed a Caldwell v. Mississippi violation by informing the jury that the Arkansas Supreme Court would automatically review the case with a “fine-toothed comb.”  The trial court did give curative instructions; however, the judge began the instruction by stating that he understood the jury would be unable to follow the instruction.  Therefore to call the instruction “curative” is quite a stretch.  The judges seemed more focused on the second issue, which dealt with a tweeting juror and a sleeping juror.  The judges and Appellant attorney seemed quite outraged not that someone would sleep or tweet during the trial but that the State’s position on each was that nothing wrong happened.  The State actually took the position that as long as a majority of the trial was listened to by the juror he is fit to serve.  Justice Corbin even went so far as to ask the State if she would mind if he texted or slept during her argument and assumed that he did not miss anything important.  The State also misled the justices on several important facts that were later corrected by Appellant’s attorney; such as, whether the tweeting occurred during testimony and whether the judge instructed the jurors not to tweet at all.  To the amazement of the justices, the State was resolute that the small nap and the tweeting were not improper.  The importance of the second issue is that if a juror cannot follow a judge’s instructions in one respect, how can he be expected to follow another instruction, such as a curative instruction.

Ultimately this case will be helpful in guiding our lower courts on juror misconduct and Caldwell issues.  Although I do not think much was gained by the Appellant through oral argument, I certainly think the State lost a great deal of credibility with the Court.  The failure to make proper concessions and the multiple occasions upon which the State misled the Court will certainly weigh on the justices while they are in conference.  Additionally, the State’s poor form in speaking over the justices and interrupting them will certainly hinder anyone from wanting to see the State prevail in this case.

Oral argument video http://arkansas-sc.granicus.com/MediaPlayer.php?view_id=4&clip_id=282

News article can be found at http://arkansasnews.com/2011/11/17/lawyer-tweeting-sleeping-by-jurors-cause-to-overturn-murder-conviction/

Upon an initial scan of the new decisions from the Arkansas Supreme Court I saw several reversals and assumed some great case law was made.  Unfortunately, those reversals were State appeals.

In State v. Cantrell, the reversal was of a circuit court’s grant of a new trial based upon ineffective assistance of counsel.  The Arkansas Supreme Court agreed with the State that it was improper to allow the defendant to invoke the attorney-client privilege in a Rule 37 hearing.  The rule is clear that once a defendant files a Rule 37 petition, the attorney is allowed to disclose everything he knows about the defendant and the underlying case.  So ultimately it is hard to disagree with this ruling.

In State v. Kindall, the circuit court judge simply failed to include his findings when he allowed the rape shield to be pierced.  The judge is required to make specific findings on what evidence will be allowed and the relevancy of the evidence.