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What's Up in the 8th

Back in May, the 8th District in State v. Walker found the evidence of prior calculation and design insufficient for an aggravated murder conviction, and modified it to simple murder.  The State squawked to the Supreme Court, claiming that the panel adopted the inferences it felt persuasive, rather than leaving that task up to the jury.  The Supreme Court hasn't yet decided if it will take the case, but the argument's had some resonance up here anyway.  Last week, in State v. Pointer, the panel adopted the State's position with a vengeance.

Walker involved a bar shooting, virtually unheard of in Cleveland except on days ending in "y."  One of Walker's entourage spilled a drink on somebody else, and within minutes, as the song says, everybody was kung fu fighting, or at least the form of the martial arts which involves punching people and throwing bottles at them.  (The entire scenario was captured on surveillance video.)  Well, not quite within minutes; the video shows Walker and his friends conversing for about fifteen minutes, while glancing at the other group, before the fight begins in earnest.  At some point, Walker walked behind a pole, then emerged a minute or so later and shot the victim in the back, killing him.  The essence of the State's grievance is that the panel decided that since there was no audio, there was no evidence that Walker's group was engaged in any planning of the killing, and so no evidence of prior calculation and design; the State contends that it was the jury's function to draw the inference of what Walker's group was up to.

Gene Pointer has some things going for him, too.  He was convicted of arson, for torching his apartment after his landlord notified him to leave.  The opinion starts by reciting a portion of the State's argument in closing:

On the night of April 15, 2013, the defendant, Gene Pointer, went into the house he was renting one last time, with revenge on his mind, and gasoline in his hands. He took that gasoline, dumped it in an empty bedroom, and then set the house on fire.

Things are looking up for Pointer, because the opinion then notes that "the state had no direct evidence that Pointer was in possession of gasoline, much less that he knowingly ignited gasoline in order to damage the house."  But it's all downhill from there.  This was a circumstantial case, and the panel gives the State the benefit of the doubt on every possible inference.  For example:

There was inconsistent testimony on whether Pointer was the only person with a key to the house, so the state is entitled to have the inconsistency construed most favorably to it to show that Pointer possessed the only key.

I don't like saying this, but that's probably a correct statement.  That's different from the situation in Walker.  It's one thing to say that where there's conflicting evidence, it's a jury's job to resolve those conflicts.  It's another to say that where there's no evidence on a particular point - whether Walker's entourage was discussing an assault, or the drafting of Johnny Manziel -- the appellate panel has to assume a jury made a proper inference.  We'll see how it plays out if the Supreme Court takes Walker's appeal.  One of the interesting aspects of the two cases is that the author of the Pointer opinion was also on the panel in Walker.

Sufficiency is also the subject of State v. Morris, but in this case it's the sufficiency of the judge's advisement of the right against self-incrimination before accepting Morris' guilty plea.  True, the judge did tell him that he couldn't be forced to testify and that if he didn't it couldn't be used against him, but Morris argues the judge should have gone the extra mile and explained that the jury would be instructed that Morris had a right not to testify and that they couldn't draw an inference of guilt.  Well, yeah, a judge does have to strictly comply with the required constitutional advisements, but "strict compliance" doesn't mean the judge has to give a course on constitutional law.  Morris' Plan B is the contention that the judge didn't properly consider the sentencing factors.  The next opinion which upholds this argument will be the first.  The claim founders not only because the judge said she considered the sentencing factors, and saying she did is all she has to do, but here the judge actually did put on the record how she weighed the various factors.

I don't know why we don't require that.  Well, I do:  because you have a whole host of decisions saying that a judge has "unfettered discretion" in sentencing.  But the best indication that a judge has come to an appropriate sentence is her explanation of why she came to that sentence.  Until we start doing that, we might as well not have appellate review of sentencing, because it's a joke.

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