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What's Up in the 8th

You remember the theory that, given an infinite amount of time, an infinite amount of monkeys with typewriters could produce the works of Shakespeare?  Something similar seems to provide the latest guidance in deciphering the current state of the law on consecutive sentencing:  if a judge talks long enough at the sentencing hearing, he's likely to say something that the appellate panel will construe as the findings necessary to support the imposition of consecutive sentences.

The chief exhibit in support of that contention is State v. BarkerThe march of technology:  Barker's commission of assault and abduction was recorded by a spectator and uploaded to YouTube, and is presented by the State at Barker's sentencing.  The judge even invites Barker to watch the video, and provide commentary.  Barker's career as a play-by-play analyst is interrupted by the 4 ½ year sentence he gets.  He complains that the judge didn't make the required findings, but the panel quotes at length from the judge's statements at sentencing, puts them in a blender, and the statutory findings come out.  For example, we have the judge saying this:

So, therefore, I believe that the only appropriate sentence to punish this defendant is with a consecutive period of incarceration. * * * [H]e has prior cases, has a record of drug abuse, had prior opportunities to clean up his act and he has not done so. These are separate incidents.

The court decides that this, properly pureed, equates this to

[Finding:  "consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public."]

The judge in State v. Quarterman isn't quite so voluble, so that one goes back for resentencing.  But not for retrial; Quarterman's conviction of aggravated robbery is affirmed.  An interesting point here.  Two people committed the robbery, one of whom had a gun.  One victim identified Quarterman as the gunman, but the other claimed the other person (who never was caught) had the gun.  The court rejects the sufficiency and manifest weight arguments, noting that the complicity statute means Quarterman could be convicted even if he weren't the gunman.  That's true, and would be a logical reply to the contention that Quarterman couldn't be convicted of aggravated robbery because he wasn't the gunman.  But the argument is that if the two victims have Quarterman doing two different things, then maybe they didn't get a good look at anybody, and there isn't sufficient evidence that Quarterman was even there.  That's probably not enough for a sufficiency or manifest weight argument, either, but it's a difference that should've been recognized.

A much more troublesome decision is State v. Mays.  Mays waived his right to indictment, and later pled no contest to an information for domestic violence.  There are certain things that have to happen for a waiver of right to indictment to be valid, though:  the judge has to advise the defendant of the nature of the charge in the information, his right to indictment, and his constitutional rights.  None of those things happened here.  But the panel rejects the claim that this failure rendered the plea invalid, holding that a no contest plea waives the right to object to any prior ruling, and by pleading no contest, Mays waived the issue. 

The panel cites a number of cases for this proposition, but all of them involved guilty pleas.  That's an important distinction.  It's a common practice, for example, for defendants to plead no contest and then appeal a legal ruling, like the denial of a motion to suppress; the courts have never held that a no contest plea waived the right to do that.  In fact, the alternative would be to require the defendant to undergo an often unnecessary trial in order to preserve the issue the legality of the seizure of the drugs, which, in the vast majority of drug cases, is the only real issue.  Let's hope this gets cleared up on reconsideration.

Back in 1989, Tom Keenan and Joe D'Ambrosio were convicted and sentenced to death of Anthony Klamm.  Keenan's conviction was reversed for prosecutorial misconduct, which would prove to be a recurring theme, but his second roll of the dice came up snake-eyes again:  another conviction, another death sentence.

D'Ambrosio won a retrial a couple years ago when the Federal courts found that the prosecutor's office had committed a series of egregious Brady violations, and his case was eventually dismissed because the State failed to retry him in time.  Keenan piggy-backed on the record that D'Ambrosio had established, and a Federal court granted him the same relief.  The State didn't muck things up this time, and Keenan was ready for his third crack at a jury.  He'd filed a motion to dismiss the indictment, but the judge delayed a ruling to allow the parties to come up with a plea bargain everybody could live with.  ("Live with" is the operative phrase:  the State had by this time pulled the death specs.)  Keenan opted to go trial instead, and it was the right call:  the judge dismissed the indictment with prejudice.

By a 2-1 vote, the 8th affirms that in State v. Keenan.  If you've got a case like this, Keenan is a must-read, and it's worth your time even if you don't.  The big issue is whether dismissal was the appropriate sanction under the Supreme Court's decision earlier this year in State v. Darmond, where the court reversed the 8th and held that the rule of Lakewood v. Papadelis -- that a court should generally impose the least severe sanction for a discovery violation -- applied equally to violations by the prosecution.  (This post, about the oral argument, takes you through the issues.)  The opinion gives a thorough treatment of the issue.  And there's some validity to the arguments of the dissent.

I didn't really get into that, though.  I think this is one of those times when we get caught up in the law and lose sight of the larger view.  And the larger view is this:  Tom Keenan and Joe D'Ambrosio spent more than two decades of their lives in prison for a crime which they may very well not be guilty of, and we'll never know because of the egregious conduct of the prosecution.  (There's a good discussion of the facts of the case here.)  This wasn't inadvertent, this wasn't an isolated instance.  This was willful suppression of exculpatory evidence by a chief assistant county prosecutor who had at least six other murder convictions reversed because of prosecutorial misconduct.

Sometimes, you've got to send a message.

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