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What's up in the 8th

To paraphrase the song title, it ain't easy being a judge, but there are things which make it easier.  The statutes exactly prescribe what a judge must tell a defendant who is not a US citizen before accepting a plea, and the Supreme Court has spelled out what a judge must tell a defendant about post-release controls at sentencing.  Nonetheless, some judges prefer to wing it, and this week's cases reveal the often predictable results of that choice.

Mikhail Voskoboynikov pled guilty to drug possession and trafficking charges in 2004, and, as might be guessed, was not a US citizen.  RC 2943.031 tells a judge exactly what he must inform a defendant in such a situation, but the judge eschewed that, instead advising him that his plea would involve "some followup by the Immigration and Naturalization Service that may occur, may not occur," and that "hopefully, you can work with" the INS.  When that "work" resulted in nothing more than the INS wanting to give Voskoboynikov a one-way ticket past the bowling trophy the French gave us with that stuff inscribed on it about "huddled masses" and back to his native Ukraine, Voskoboynikov hurried to court with a motion to vacate his plea.  The judge denied it without a hearing, and the court reverses, finding that, in light of the diluted warning, a hearing was necessary to determine whether Voskoboynikov objectively understood the implications of his plea.

The defendant in State v. Wilson gets a do-over, too; the judge forgot to tell him about post-release controls at the plea hearing.  In the judge's defense, the hearing took place back in 2005, before the Supreme Court's decision in State v. Simpkins had mandated the advisement of PRC.  (The defendant had skipped out on the sentencing, and was found two years later hiding out in Montana, his capture no doubt facilitated by the fact that he was one of only eight black people in the state.)  The court rejects the state's argument that the error was cured by the prosecutor's mention of PRC at the plea, and  in future cases will no doubt address whether mention of PRC by the bailiff, court reporter, or deputy sheriff has any relevance.

The other big issue for the court this past week was "snitch" testimony, and the results were uneven.  In State v. Marshall, the witness wasn't actually a snitch, but the alleged victim of a felonious assault and robbery.  He had his own troubles:  he was facing a pending rape charge.  Normally, a witness can be impeached only by convictions, not charges, but there's a "self-interest" exception to that:  a witness can be cross-examined as to possible bias on the theory that he might receive consideration on his pending case in return for his testimony.  Defense counsel wanted to do this, but the court ruled it out on the basis that the prosecutor adamantly insisted the victim hadn't been offered any consideration.

That may well be true, but as Judge Sweeney's concurrence points out, whether the state actually offered any consideration is not conclusive:  a witness might still believe that he will be given consideration for his testimony, even if it hasn't been offered, and the defense is entitled to explore that point.  Sweeney joins the majority nonetheless on harmless error grounds.

His point carries over to State v. Braun, a 60-page opus involving an aggravated murder prosecution.  Among the plethora of error assignments is one involving an actual snitch, Matthew Stedman, who testified about Braun's admissions of the killing.  Stedman had started keeping a journal of these purported admissions from the beginning of his jailhouse acquaintance with Braun, and on redirect examination, the judge allowed the prosecutor to introduce the journals as substantive evidence.   The court upholds this, finding that the journals were admissible under EvidR 801(D)(1)(b), which permits introduction of prior consistent statements of a witness if "offered to rebut an express or implied charge against declarant of recent fabrication or improper influence or motive."

The logic behind 801(D)(1)(b) is simple:  it's less likely a person is lying if, before he had any reason to lie, he said the same thing he is saying now.  The problem with the court's analysis in Braun is that there was no "before":  as the defense argued, Stedman's motive to lie -- favorable treatment for his own criminal case -- existed at the moment he began keeping the journal.  The court finds significant that "although Stedman acknowledged that he hoped for consideration from the state, he testified that he was repeatedly told that there would be no consideration for his testimony against Braun."  As Sweeney's concurrence in Marshall notes, just because the state doesn't offer consideration doesn't rule out the possibility that the witness believes he will get some.  There simply was no prior "consistent" statement here, within the meaning of the rule; there was never a point where Stedman did not have a reason to lie.

Finally, a civil case.  Back in 2006, Lillie Alexander filed a class action law suit, claiming that Wells Fargo wasn't complying with a state statute that required mortgage lenders to file an entry of satisfaction within ninety days of the final payment on the mortgage.  The trial court referred it for arbitration pursuant to a clause in the mortgage, but the 8th District reversed, deciding that the clause didn't apply because the dispute didn't arise "under" the mortgage.  Yes it does, said the Supreme Court, reversing the 8th and remanding the case for a determination of whether the clause was procedurally and substantively unconscionable. 

Once bitten, twice shy; last week in Alexander v. Wells Fargo, the court upheld the trial judge's initial determination that the clause was neither, and that arbitration was proper.  A point is clarified:  while the appellate decisions had divided over whether review of a decision on unconscionabilility should be for abuse of discretion or de novo, the Supreme Court resolved that last year by coming down on the side of the latter.  Perhaps the salient point of the 8th's decision last week is that the fact that class actions can't be brought under arbitration clauses is not going to render them unconscionable.

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