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What's Up in the 8th

Some funky stuff this week.  Last week, I mentioned that there's a lot of case law from the 8th holding that a frisk for weapons isn't automatic after a stop; even where drugs are involved, the police have to show that they had a reasonable suspicion that the suspect is armed and dangerous.  Well, there are 12 judges on the court, which means there are 220 possible 3-judge combinations, and in State v. Franklin, the defendant pulls arguably the worst possible panel for a search issue.  Although the officer says nothing more than that the patdown was done "for our protection," that's enough for the court, citing the language from the Supreme Court decision which says that frisks are "virtually automatic" in drug cases.

Three weeks ago, I argued that the Supreme Court's decision in State v. Kalish creates an opening, however slight, for attacking sentences:  there's language in the opinion which suggests that the reasons the trial court imposed a particular sentence -- that is, it's analysis of the seriousness/recidivism factors -- may be reviewed under an abuse of discretion standard.  In State v. Nolan, the 8th District seems to buy into that argument:  noting that the trial judge gave consideration to Nolan's mitigating evidence, and to the fact that it was his seventh felony and that he'd committed three probation violations on two of the cases, the court concludes that there's nothing "to suggest that the sentencing decision was unreasonable, arbitrary, or unconscionable."

Some dribs and drabs...  It's long been the law that if the judge puts a defendant on community control sanctions without specifying what prison sentence will be imposed for violation, she can't impose one.  In State v. Goforth, the court holds that this requires the judge to not only specify the sentence at the initial sentencing hearing, but in the journal entry as well.  In State v. Barnes, the court holds that an arrest warrant allows the police to enter a third party's home if they have a reasonable belief that the person named in the warrant is in the house. 

CORRECTION:  Last week I wrote about the latest developments in the continuing saga of Bill Mason v. Open Discovery, a contest mildly evocative of the Godzilla v. Megalon duels.  I opened the post by describing a recent murder case and stated that "prosecutors had played the normal hide-and-seek with witness statements and police reports."

I got a comment on the post from Matt Meyer, one of the county prosecutors, who pointed out that the prosecutors actually had turned over the material requested by the defense.  As can be seen from this article, the fuss seemed to revolve around the fact that the prosecutors hadn't ordered any DNA testing, rather than that they'd tried to hide evidence, or failed to disclose evidence they knew was exculpatory.

Thanks to Matt for pointing this out and correcting the record.

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