What's Up in the 8th
As I've mentioned before, the 8th District leads the league in Gallaghers. Sean's been there since 2003, Eileen A. Gallagher joined the bench in 2010, and Eileen T. Gallagher was elected in 2012. I was going to figure out what the chances were of getting all three on the same panel -- a sure way to win some bar bets -- but then I remembered that one of the reasons I went to law school is they promised there wouldn't be any math. Must be a pretty small chance; it happened in a criminal case for the first time last week.
Take, for example, State v. Steele and State v. Tharp, both involving the trial court's imposition of consecutive sentences. The sentencing reforms in 1996 required judges to make a finding that the defendant had committed the "worst form of the offense" - subjective much? - before imposing a maximum sentence, but State v. Foster did away with that. What's left? The upshot from Steele and Tharp is that the length of a sentence is a "pure exercise of discretion," and "apart from any claim that the sentencing judge failed to fulfill a statutorily-mandated obligation before imposing sentence, a sentence falling within the statutory range is unreviewable."
And don't get all excited about that "statutorily-mandated obligation. " All that means is that the judge has to consider the principles and purposes of sentencing, and the seriousness and recidivism factors, but the appellate court won't second-guess him about his application of any of them, and in fact will presume that he considered them even if he doesn't mention them. The bottom line is that for everything but consecutive sentences, there's no meaningful appellate review. And the clarity of the law on consecutive sentences wasn't enhanced by State v. Jones. Two months ago the court affirmed Jones' sentence, concluding that the judge had made the necessary findings. Last week the panel vacated that decision, concluding that the judge hadn't.
That was the only win for defendants last week, but the court is protective of defense attorneys, at least when it comes to claims of ineffective assistance. But speaking of things that are pointless, we come to State v. Croce, where the contention is that the lawyer messed up by not asking the judge for a curative instruction that it could consider the defendant's priors only in weighing his credibility, not in determining his guilt. The court chalks this up to a "tactical" decision which it won't second-guess, and there's some merit to that: oftentimes, an attorney won't ask for a curative instruction because it merely highlights the issue for the jury. I think that's a bit more applicable to inadmissible evidence than to prior convictions - what, the jury's going to forget? - but it ignores the utter irrelevance of the issue. Giving the jury that instruction on prior offenses is like telling them to ignore Adam Sandler's movies in determining whether he could become a Shakespearean actor.
In a similar vein, the court in State v. Williams rejects the claim that the lawyer screwed the pooch by not asking for a sidebar conference to be recorded. The court adopts the reasoning from a 2nd District case, that when "experienced counsel" - whatever that means - doesn't request that sidebar conference be recorded, it must mean that "in his estimation, recording of the sidebar conference for appellate purposes was unnecessary." True that, maybe, but what's the point? How are you ever going to show prejudice when you don't know what was said?
The court's solicitous treatment of defense counsel continues with State v. Patterson. Patterson contends that his disagreements with his attorney should have resulted in the latter's replacement, and the attorney acknowledges that he had a "profanity-laced discussion" with Patterson at one point. Been there, done that, got the t-shirt. This guy managed to get new lawyers by stabbing his old ones in the neck with a pencil, but Patterson wasn't willing to go the extra mile, and so his claim is rejected.
By the way, here's a fun exercise: think of the times you would've been willing to take a pencil in the neck to get off a case. I can come up with a few.
Back in 1997, Michael Stansell pled guilty to a rape charge which included a sexually violent predator specification. That resulted in him getting a life sentence. At the time, the SVP spec applied to anyone who "has been convicted of or pleaded guilty" to a sexually violent offense after January 1, 1997, and the law in the 8th, and many other districts, was that the spec could be applied even if the only conviction of a sex offense was the underlying crime. In 2004, the Supreme Court held in State v. Smith that the spec could only be applied if the defendant had a previous violent sexual offense. (The law has since been amended it to allow its application to the underlying crime.) Stansell's appeals had been concluded by the time Smith came down, so the issue is whether he can still receive the benefit of that decision, and the normal rule is that "a new judicial ruling may be applied only to cases that are pending [for trial or on direct appeal] on the announcement date." In State v. Stansell, the panel conducts a cage match between the principle of justice and the principle of finality, and finality scores a TKO in the 3rd round.