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What's Up in the 8th

There was a dry spell in the 8th District for a while there, where it seemed that a win for defendants was as rare as a good Adam Sandler movie, but the rains have finally come:  three more reversals this week, and one that might've been.

I did some sloppy work in an oral argument this past week.  The trial judge had imposed 20 years of consecutive sentences on a 75-year-old grandfather who'd pled guilty to molesting his grandchildren.  The judge had made none of the required findings, and I figured it would be smooth sailing, but I hadn't done my homework:  one of the judges was Judge Boyle, who'd been the lone dissenter in the court's en banc decision in State v. Nia, which held that the court would strictly review whether the required findings had been made.  Boyle had argued there that the sentence could be upheld if the appellate court, after reviewing the record, could determine that the findings could've been made.  I don't think that's correct, but it led to some unexpectedly tough times in my oral argument.  But then this week we find State v. Marneros, where in an opinion authored by Boyle the court reverses consecutive sentences because the judge didn't make the finding of disproportionality.

The two other reversals come in State v. Scott and State v. CalhounThe former is nothing more than a reiteration of the fact that even if a judge tells the defendant at the sentencing hearing about the consequences of violating post-release controls, he has to put it in the journal entry, too.  Scott is about mandatory fines, and is way more complicated.  The abbreviated version is that the affidavit of indigency has to be filed before the sentencing hearing, and that's usually done at the clerk's office.  But the judge also has the authority to accept a filing.  If he does, though, he has to note the filing date on the affidavit and "forthwith" transmit it to the clerk's office.  The judge in Calhoun accepted the filing, but it didn't wind up in the file, so it goes back for determination of the utterly irrelevant question of whether a man who's just been sentenced to twenty years in prison should be ordered to pay thousands of dollars in fines.

The appellate attorney in State v. Malone is ahead of his time.  Malone is one of two defendants charged with aggravated murder, and a joint trial results in their conviction.  The other defendant's conviction was affirmed three months ago in State v. Holloway (discussed here), and Malone's claim of improper joinder meets the same fate.

Several jailhouse snitches testified, though, and the more interesting argument in Malone is that the judge should've given the standard instruction for accomplice testimony -- the testimony should be viewed "with great suspicion" -- for theirs.  The court rejects the argument, finding that there's no law to support it.

Well, maybe there should be.  Jailhouse snitch testimony is notoriously unreliable; the Innocence Project found that snitch testimony contributed to the convictions of about 20% of the people subsequently exonerated by DNA testing.  Prompted by cases like Leslie White, who became sort of the Forest Gump of the California prison system, claiming to have been present when defendants in highly publicized cases chose to confess to him and later bragging to 60 Minutes that his slogan was, "If you can't do the time, just drop a dime," California passed a law requiring that a jury couldn't convict on snitch testimony unless it was corroborated by other evidence.  Even prosecutors supported the bill.

So maybe a "grave suspicion" instruction wouldn't be a bad idea.

Several major evidentiary errors occur at trial in Gregory Jones trial for rape.  Jones, a police officer, argued that the sex was consensual, and the defense wanted to cross-examine the victim about a false police report she had filed a few years earlier, where she claimed to have been robbed, only to later concede fabricated the robbery story to avoid telling her mother that she'd lost the rent money gambling.  The opinion engages in an exhaustive analysis of when prior instances of misconduct can be explored under EvidR 608(B), and concludes that since "the crucial issue is [the victim's] credibility," the judge should have allowed cross-examination on the issue because the filing of the false police report "exhibits a high degree of probative value of [the victim's] truthfulness."

The other problem was allowing the prosecutor to cross-examine Jones about the fact that he had herpes.  The State came up with a convoluted argument for its relevance:  if Jones had disclosed that he had the disease to the victim, it would make it less likely that she would've consented, and if he didn't disclose it, then it would show that he wasn't honest.  Or something.  The panel was having none of it, finding that admission was improper because the State was using it to leave the jury to "the inescapable conclusion that [Jones] is a bad man for NOT disclosing his STD."

At this point, I scroll up to the beginning of the opinion, because I was sure I saw the word AFFIRMED up there.

I did.  After spending twenty-six paragraphs finding the exclusion of the false report and the admission of Jones' STD to be error, the majority spend six paragraphs explaining why it's harmless error.

You know what?  They're probably right.  I'm not a big fan, by any stretch, of appellate courts' tendency to sweep even the most egregious violation of due process under the harmless error rug, but one comes away from Jones very hard-pressed to believe that the jury got it wrong.  Jones' version is essentially that the victim consented to unprotected, unlubricated anal sex with him some 40 minutes after meeting him, and when you read the full facts of the case, well, I'm sorry, I'm not buying it, and I don't think anybody else would, either.

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