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What's Up in the 8th

One of the nice things about doing this blog is that I learn a lot of stuff.  Just this week, for example, I learned something I didn't know about inventory searches, what pretrial motion rulings a guilty plea will waive, and which ones it won't, and that I probably want to stay away from something called Four Loko.

That latter tidbit comes via State v. Hudson, an appeal from a denial of a petition for post-conviction relief based on the shortcomings of trial counsel, one of which was the "failure to investigate and present the unusual effects of Four Loko."  That went nowhere, as did the other claims, but, intrigued as I always am by new information, I not only Googled Four Loko (and you can too), I dialed up my BFF Lexis and learned that the drink is mentioned in five Ohio cases.  That doesn't seem too bad.  I didn't check it out, but based on my personal experience, I'm guessing that MD 20 20 would have generated hits in the triple figures.

From State v. Kalinowski, we learn the value of patience.  Hardly a week goes by that I don't see a case where some poor rummy files a "motion to correct void sentence" from prison, claiming that post-release controls weren't properly imposed in his case.  He's told that since State v. Fischer, only the portion of the sentence dealing with PRC is void; the net result is that he's hauled back before the trial judge, who does PRC right this time, The End.  But not Kalinowski.  He was sentenced to 10 years in prison after pleading guilty to 36 rapes (no, that's not a typo) back in 2002.  The judge didn't say anything about PRC during the sentencing, and the only thing in the journal entry was a statement that "postrelease control is a part of this prison sentence for the maximum period allowed," which was good enough back then, but then so was Lindsey Lohan's acting career.  Kalinowski carefully bides his time, waiting until his prison sentence is over before filing a motion to terminate PRC.  It wasn't properly imposed, and you can't impose it once the defendant has finished his prison sentence, so Kalinowski no longer has to spend the next five years with The Man looking over his shoulder.

State v. Hullum teaches a lesson about inventory searches.  The police stop Hullum for hit-skip, tow the car to the station for impoundment.  An inventory search of the trunk reveals a backpack, and the police look inside and find drugs.   The law is that the police cannot open closed containers they come across during an inventory search unless there is a standardized policy or practice specifically governing the opening of such containers.  The policy doesn't have to be written, but more is required than the officer's testimony that he always opened them.  That's all the State has here, and the evidence gets tossed. 

From State v. Brusiter we learn something we should've already known:  a guilty plea constitutes a waiver of any claims regarding pretrial motions, like a motion to suppress.   Brusiter argues that the trial judge had a duty to inform him of that effect, but there's no law to support that.  There's plenty of law to support the idea that the defense lawyer has the duty to know that and inform the defendant, and the case should more properly have been brought as a petition for post-conviction relief, alleging ineffective assistance of counsel.  Like Kalinowski, Brusiter's a smart guy, too, because I checked the docket, and that's what he did.  That's still pending, so we'll see how it turns out.  Of course, that depends upon him showing that his attorney didn't tell him about that, and that's another story.

State v. Kutkut presents a plethora of lessons.   In July of 2004, Jason Horvath was found dead of a gunshot wound, and a year later, the police charged Kutkut and a few others with his death.  A few days after Horvath's death, though, Kutkut had left the US for Jordan.  In 2009, he was arrested in Turkey by Interpol, based on the outstanding warrant from the US.  It took two years to get him extradited from Turkey, and he ultimately pled guilty to involuntary manslaughter and aggravated robbery.

He appeals from his conviction and 23-year sentence, arguing that his speedy trial rights were violated by the delay between the time he was picked up in Turkey and the time he was brought over here.  Hold it, you say:  didn't you just tell us that a plea of guilty waives any pretrial rulings?  Well, yes, but here's today's lesson:  while it waives a claim based on his statutory right, it doesn't waive one based on his constitutional right.  And so the court plunges into the four-step analysis required by Barker v. Wingo.  The first is the length of the delay; one year is presumed prejudicial, so Kutkut wins that round. 

From there, it's all downhill, though.  The third factor is the defendant's assertion of the right, and the fourth is the prejudice to him; Kutkut makes no argument as to the latter, and his argument on the former is simply that he told the Turkish authorities at one point that he'd like to go back because of the deplorable conditions of Turkish jails, something I did not need to read this case to learn. 

That leaves only the second factor, the reason for the delay.  Here's where I learn something else:  there's such a word as "fugitivity," which can be considered in determining this factor.  The court's opinion here isn't entirely clear on the degree to which this can be considered, but that's largely because the law is muddled:  you can find cases saying that fleeing the country waives the right to speedy trial, and others saying that it's only a factor to be taken into consideration.  In any event, Kutkut fought extradition, and it appears that the American authorities took the reasonable steps necessary to bring him back, so that's that.

 One other thing to be learned from Kutkut:  don't rely on courts to tell you which countries have an extradition treaty with the US.  The opinion says that Jordan doesn't, but according to the State Department, it does.  If you're intent upon getting beyond the long arm of The Man, you might want to start by checking here.


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