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What's Up in the 8th

Last week's deluge of 8th District cases - twenty-five of them, fifteen criminal - ran the gamut from the bizarre to, well, the bizarre.  There was State v. Hutchings, where Hutchings sought to modify his community control sanctions to eliminate the drug-testing requirement because he had become a Michigan resident and had acquired a medical-marijuana guard.  His appeal from the denial presented no fewer than eleven assignments of error, including that the trial court's condition prohibiting his usage violates the Americans with Disabilities Act and the Rehabilitation Act of 1973.  The panel was unimpressed. 

Similarly prolific was the defendant in State v. Orr; disappointed with the four assignments of error his lawyer presented, he submitted a supplemental brief assigning ten of his own.  This was certainly in character; in his defense of an aggravated murder charge, he submitted over 100 pro se motions, and, in a trial where he represented himself, spent two weeks presenting no fewer than 19 witnesses.  It did him no good at trial - he was convicted and sentenced to life without parole - and he fares no better on appeal, the court giving short shrift to his contentions.  Well, long shrift; the opinion clocks in at a hefty 39 pages.

The State concedes error in State v. Ziska, agreeing that the trial court didn't make the finding that consecutive sentences weren't disproportionate, a call they'd probably like to take back, considering the other decisions on that topic last week.  In discussing the Supreme Court's July decision in State v. Bonnell, I'd found "troublesome" that some of the court's language seemed to apply the findings requirement rather loosely.  Later, I'd worried that the 8th's decision in State v. Evans represented backtracking from its en banc decision in State v. Nia, which had required strict compliance with the findings requirement. 

Well, worry no more; after last week, Nia has about as much relevance as Plessy v. Ferguson.  It begins with State v. Spence, where the court decides that the judge's statement, "it's clear to the Court that those injuries were so severe that a concurrent sentence is not warranted" is equivalent to a finding that consecutive sentences are "not disproportionate to the seriousness of the offender's conduct."  In that case, the court cites to Evans and adds in a footnote, "Compare State v. Nia.State v. Gray pounds the final nail into Nia's coffin, the panel flatly stating that Bonnell "put forward a less strict standard than the one this court adopted in Nia.

Equally unsettling is State v. Wilson, where the panel decides that the judge's statement that "this is a sentence fashioned to punish the defendant for this horrible crime" is close enough to "consecutive sentences are necessary to protect the public from future crime and punish the offender."  That's not the unsettling part; that comes with Wilson's argument that his sentence was disproportionate to that of his co-defendants, which the panel breezily dismisses by stating, "the trial court also noted that Wilson's total sentence was in line with the sentences his codefendants received. Nothing more was required."  Appellate lawyers are familiar with de novo appellate review and review for abuse of discretion; I suppose we now we must become familiar with "the trial judge said it, so it must be so" standard of review.

The most interesting case, and the subject of another 27-page opus, is State v. MarshallWay back in 1997, Marshall was convicted of aggravated murder and sentenced to death for the killing of a pizza shop owner, but got a new trial.  In the first trial, Haynes, a longtime friend of Marshall, testified that Marshall told him he'd committed the robbery. 

Haynes didn't show up for the second trial, though.  Why not?  Because while the police had information as to when and where he would show up so that they could arrest him as a material witness, the "when" was 1:00 AM, and police department overtime rules didn't allow officers to be up that late.  The judge decided that didn't constitute a sufficient showing of unavailability, and prohibited the State from using Haynes' testimony from the first trial.

So the jury never got to hear what Haynes had to say?  Not quite; turns out that someone snuck his written statement into the exhibits that went into the jury room.  A special investigator was appointed, and his report, which was summarized here, strongly suggests that it was a prosecutor who did it.  (Two other State witness statements that hadn't been admitted were found in the room.)  The judge declared a mistrial, and the parties geared up for a third trial.

Which never took place.  After about a decade of more proceedings - in the appellate courts, and in Federal court in habeas - Marshall entered a plea to involuntary manslaughter and aggravated robbery, and an agreed sentence of sixteen years, which was the time he'd served in prison.  (He still has time to do on other sentences.)  That brings us to last week's case:  Marshall's appeal from the judge's decision overruling his motion to dismiss the case on grounds of double jeopardy, on the basis that there wasn't a "manifest necessity" for the judge's declaration of a mistrial over Hayne's statement.

That's a hard sell, and it poses an interesting flip of positions:  Marshall is arguing that a curative instruction would have sufficed, while the appellate panel finds that it wouldn't.  Hard to argue with that; it's difficult to imagine how the jury could have ignored what was essentially Marshall's confession to murder.

You may be thinking that prosecutorial misconduct would bar a retrial, and the opinion indicates that while Marshall raised that below, he had "abandoned" that argument on appeal.  That's not a misstep by Marshall's lawyers.  The law does provide that prosecutorial misconduct will bar retrial on double jeopardy grounds, but only where the misconduct was intended to provoke a mistrial.  Here, it clearly wasn't:  it was just an attempt to win a case, albeit unfairly.

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