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Oral statements; secret sentencing reasons

Has this ever happened to you?  You get the state's discovery back, and it indicates your client made no written or oral statements, and then the arresting officer gets on the stand and he tells the jury about how the defendant made all kinds of spontaneous remarks at the time of his arrest, confessing to dope possession, having a gun, robbing a bank the day before, and the Lindbergh kidnapping.  Has that ever happened to you?

Besides every trial, I mean.

Well, something like that happened to the lawyer in State v. Lopez, too, and the 6th District wasted no time last week in saying that it was wrong, wrong, wrong.  The prosecutor claimed that the violation of discovery wasn't wilful because he hadn't learned of the statement until he talked to the officer the morning of trial, but the court wasn't buying, finding that "it would be difficult to conclude that such an omission was not willful."  It also determined that "springing the testimony from ambush at trial" was not only unfair to the defendant, but "deprived the court of the opportunity to consider such a challenge in a deliberative manner away from the pressures present during a jury trial."  And it rejected the state's argument that the defense should have requested a continuance; the motion for mistrial was "sufficient to put a range of remedies before the court."

After all this, the court concludes that it didn't matter, because of the "overwhelming" evidence against the defendant.  Harmless error and all that.  But not before firing a warning shot across the bow of the State:

We caution the appellee not to read this decision to mean that the state is free to disregard its discovery obligations when the evidence against a defendant is otherwise overwhelming.

Bet the crew at the prosecutor's office was shaking in their boots after that one.

This might have happened to you, too:  the judge sentences your client while announcing that he's reviewed certain materials which he hasn't bothered to show you.  (I've had lawyers tell me about cases where the judge refused to show them the presentence report.)  The U.S. 6th Circuit came down with a decision on that in a habeas case just recently, in Stewart v. Irwinwhere the trial court had refused to allow the defense to see the victim impact statements.  Noting that "there is a clearly established federal due process protection against a trial court's reliance on materially false information at sentencing," the court concluded that there was no way to tell whether that had happened here, because the statements weren't part of the record.  It reversed the denial of habeas and remanded the case back to the district court, with instructions to grant the writ if the state didn't supplement the record with the statements within forty-five days.  That's something you definitely want to have on hand at a sentencing.

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