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What's Up in the 8th

It's been my view that some people are just very bad at making decisions in life, and that criminal defendants are vastly over-represented in this subset of the population.  Not intending to adopt a "blame-the-victim" mentality, but that often applies to them, too.  In State v. Dowdell, for example, we are introduced to Bruce Edwards, Dowdell, and their mutual friend "Lemon," and are told that on the relevant date "Edwards went to Lemon's house for a barbecue and a day of drinking."  We sense this will not turn out well.

It doesn't.  By the time Dowdell got there, Edwards already had two hours of drinking in the rear-view, and the two began "playing the dozens," a game in which the participants trade insults.  It's normally less lethal if done by 10-year-olds and the subject does not include each others' girlfriends.  Long story short, Edwards winds up the worse for it.  He claims Dowdell had a gun, Dowdell denies it, and the judge in a bench trial sides with Dowdell, but nonetheless convicts him of simple assault and aggravated menacing.  Various life lessons are taught in the case, but a single legal one.  There's a well-established presumption that a judge in a bench trial only considers relevant, admissible evidence, but the 8th District a month ago inIn re C.T. (discussed here) carved out a notable exception to that rule:  the presumption doesn't apply where the judge admits evidence over defense objection.  Dowdell creates an exception to the exception:  where defense counsel doesn't object to inadmissible evidence, the trial judge will be presumed to have disregarded it.

Three companion cases -- State v. Rivera, State v. Theodus, and State v. Koernberg -- present defendants and the victim, a 15-year-old girl, making more bad choices.  In the victim's case, it is to run away from home, drink and do drugs, and hang out with people she doesn't know; in the defendants' case, it's to think that it would be a good idea to have the girl perform oral sex on each of them.  That results in convictions for rape for each of the three under the subsection prohibiting sexual activity with someone who is "substantially impaired."

I handled the appeal in Rivera, and the reversal of the convictions in all three cases is interesting on a number of levels.  First, there's not a lot of law on what constitutes substantial impairment.  The only Supreme Court case on the subject deals with it in the context of mental retardation, and a number of appellate court decisions have seemed to conclude that evidence of intoxication is sufficient.  To its credit, the panel here (the same panel heard all three cases) did not:  it does an excellent job of sifting through the evidence, noting that here there was little more than evidence that the girl had consumed some liquor, let alone that she was intoxicated, let alone that she was substantially impaired, let alone that the defendants had reason to know that, which is what the statute requires.  The decision is of necessity quite fact-specific, but it's an excellent starting point if you're defending a case like this.

The second interesting thing about the case was how differently it played out on appeal from how it played out at trial.  The girl had originally told everyone that the sex was consensual, and only a month after the incident began to claim that she was forced into it.  That reverse recantation became the focal point of the trial.  Most of the defense effort was expended on the consent issue, and they were successful in that:  the jury acquitted on the counts alleging rape, sexual battery, and gross sexual imposition by force (except for Theodus, who was convicted of the latter count), but convicted of the impairment counts for each of those offenses.  That's not to fault any of the trial attorneys, it's just to note that what might seem to be the significant issue at trial may not seem that way with the benefit of the 20-20 hindsight that an appellate lawyer brings to the case.  In any event, the court vacates all the convictions for insufficient evidence, except for Theodus' GSI conviction, which it reverses and remands on manifest weight grounds.

The third interesting thing about the case is that the court even vacated the count of unlawful sexual misconduct with a minor, finding that the State's failure to introduce any evidence of the defendant's ages meant that it failed to meet the element of showing that the defendants were 18 years of age or older.  This despite the fact that none of the defendants raised that issue, at trial or in the appeals.  I argued that the conviction was a misdemeanor because the State didn't show that Rivera was more than four years older than the victim, and the other appeals didn't even raise that conviction.  Oh, well, as that great bard Ringo Starr once wrote, "with a little help from my friends"...

The War on Drugs is not a misnomer; it bears numerous similarities to actual warfare.  One of them is that each side constantly modifies its tactics.  One of the more recent ones developed by the police is the "knock and talk," widely practiced in the projects:  police will go to an apartment where they suspect drugs are being held or sold, knock on the door, and engage in the tenant in conversation.  The purposes for doing so were the subject of some dispute -- among the detectives -- in State v. Clark.  One denied that the goal was to gain entrance to find contraband; it was simply "to engage a suspect in a conversation to determine whether the allegations about the individual have any merit."  The other detective was more forthright:  he acknowledged that the purpose of the "knock and talk" was "to develop probable cause and make an arrest" and that the police conduct "knock and talks" when they lack probable cause for a search warrant.

In any event, the "knock and talk" proved successful in Clark's case:  according to the police, when they asked Clark if they could come in to discuss the complaints about him, he allowed them in, where they observed substantial quantities of marijuana in plain view.  Clark denied that he'd consented to the entry, but the judge found that he had.  

Normally, that would be the end of it:  the appellate court will almost always defer to the factual findings of the trial court.  Almost.  As the panel in Clark notes, while it must accept the trial court's findings of fact as true, applying those facts to the legal standard is the job of the appellate court.  The legal question is not merely whether Clark consented, but whether his consent was voluntary.  The court enumerates a list of eight factors to consider in determining that question, and noting that the detectives were accompanied by two other police officers and two uniformed security officers, finds this to be a a force which is "inherently coercive" such as to make any consent involuntary.  In fact, the deference to the trial court's findings is far from absolute; the opinion notes that the officers claimed there was an "immediate" and "overpowering" smell of raw marijuana as they stood in the doorway.  Clark would have been just as aware of this smell, the court suggests, and in that light, the conclusion that Clark "would have voluntarily invited the police in to his apartment under such circumstances is highly suspect."  The concurring opinion rightly cautions that "the use of a 'knock and talk' policy where police are unable to secure probable cause by other means, is a slippery slope that invariably erodes the protections of the Fourth Amendment."

Last term, in Kentucky v. King, the Supreme Court upheld a search where the cops banged on an apartment door and yelled "police," and, when they heard movements inside, broke down the door.  When I discussed the case, I contended that it would lead to "a further diminution of 4th Amendment rights."  Kudos to the 8th for recognizing that, and protecting against it.

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