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What's Up in the 8th

If one needed further proof that the wheels of justice grind exceedingly slow, look no further than State v. A.S.   The defendant was charged with rape back in 1994, but a year later was allowed to plead guilty to one count of contributing to the delinquency of a minor.  In 2002, he filed for expungement.  The trial court promptly ordered the probation department to prepare a report in 2002.  And again, in 2004.  The State responded a year later, opposing the motion, but in 2013, the court granted it.  A.S.'s decade-long wait goes for naught, though; expungement can't be granted if the victim of a felony or first-degree misdemeanor is under 18, and contributing to the delinquency of a minor - minor being the operative word - is a first-degree misdemeanor.

One of the things I've harped on here is the perils of waiving a jury and trying a case to the bench.  That's borne out by State v. CampbellCampbell was charged with numerous counts - aggravated burglary, kidnapping, felonious assault, and rape - in two separate cases, occurring a month apart.  Over defense objection, the court joined the two cases for trial, at which point the defense waived a jury.

So, what's the primary basis for the appeal from Campbell's inevitable conviction?  Why, the joinder, of course.  What's the problem?  The main argument you have on misjoinder is prejudice and confusion:  the jury might consider evidence from one case in the other.  But you don't have a jury here, and you run smack into the presumption that a judge considers only relevant, admissible evidence, "unless it affirmatively appears to the contrary."  Good luck with that.  That also kills the argument that impermissible hearsay was introduced, that the prosecutor made improper statements during closing, and even the claim of ineffective assistance of counsel, in failing to object:  even though no objection was made, we can presume the judge didn't pay any attention to the evidence.

That's not intended to disparage trial counsel, who's an experienced criminal defense attorney.  It's very likely the case wasn't winnable under any circumstances; the evidence against Campbell was substantial.  And it's unlikely Campbell would've won on the joinder issue; the number of convictions reversed for improper joinder is minuscule.  Still, any chance of reversal on that issue, and most others, went away when the jury waiver was filed.

The defendant in State v. Nelson, on trial for trafficking in drugs (a hefty 4.77 grams of marijuana) gets a lucky break.  With only the redirect and re-cross of the State's last witness left, the prosecutor is willing to strike a bargain:  Nelson can plead to attempting trafficking, a misdemeanor.  Nelson accepts, but a problem emerges during the plea colloquy:  seems that Nelson took solace in a doobie the night before, and the judge decides that he doesn't want to do take a plea from someone who might still be high.  (If Nelson indeed had marijuana which kept him stoned for 13 hours, he's got a very promising career as a drug dealer when he gets out of prison in ten months; that's the stoner's equivalent to the Fountain of Youth.)

Nelson argues on appeal that the judge erred in nixing the plea, relying on the 8th's decision last year in State v. Caldwell (discussed here.)   Caldwell was on trial for rape and kidnapping of a minor, and the judge (the same one as in Nelson, in fact) refused to accept Caldwell's plea to a few third-degree felonies.  The panel in that case found the judge had abused his discretion, because he'd based his refusal on the contention that if Caldwell had done the crime, he should be punished much more severely, and if he hadn't, he shouldn't have been punished at all; the court found that this was true of any plea bargain.  But it doesn't help Nelson; the trial judge "provided objective reasons for rejecting the plea" in Nelson's case, and that's all a judge needs to do to get past an abuse of discretion review.

Finally, in case you're wondering, yes, I do at least look at all of the 8th District's decisions in criminal cases each week.  No, I don't read all of them.  One that didn't make the cut was Parma v. Lawrence, a pro se appeal from a conviction for speeding and a seat belt violation, which alleged fifteen assignments of error.

I would have paid good money to watch the oral argument, though.


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