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What's Up in the 8th

The 8th's decision two weeks ago in State v. Cody is really about Bobby Thompson, the fraudster who got a 28-year sentence for running a national scam targeting disabled veterans.  Well, it really is about Cody; Thompson, it turns out, was Cody's nom de scam.  Cody's convictions were affirmed last year, although the panel did lop one year off his sentence.  This is an appeal from his petition for post-conviction relief, which was denied by the trial court.  The first claim is that his lawyer was ineffective because he "refused to pursue certain witnesses that would have established that Cody was working for the CIA."  'Nuff said. 

Actually, although Cody/Thompson/Whatever took a beatdown, things were fairly good for defendants.  They split the six criminal cases two weeks ago (excluding the ones involving pro se defendants), and did the same in the eight cases last week.  One big win came in an en banc decision on pre-indictment delay, which I'll talk about on Thursday.

Last year, in State v. Nia, the 8th decided en banc that it was going to strictly hold judges to making the findings necessary to impose consecutive sentences.  Then the Supreme Court decided State v. Bonnell, and Nia became so fifteen minutes ago; the court interpreted Bonnell as allowing a more relaxed approach, and there've been a few recent cases where the panel seemed willing to interpret just about anything the judge said as the required findings.  The pendulum may have started swinging the other way.  State v. Norris, State v. Vargas, and State v. Jenkins all represent reversals of consecutive sentences.  It's so good the defendant in State v. Young tries to get in on the fun by claiming that the judge didn't make the necessary findings before running the firearm specification consecutive to the underlying crime.  Nice try, but the judge doesn't have to:  the sentence on the former is consecutive because that's what the law says; there's nothing discretionary about it.

The county prosecutor here and a particular judge have engaged in a running dispute about whether prosecutors have a right to be present at probation violation hearings.  (You can pretty much guess which side each takes on that proposition.)  There have been several cases out of the 8th on this, and the latest round goes to the judge:  in State v. Heinz, the majority decides that the probation officer, not the prosecutor, is the appropriate party to represent the State.  The dissent makes a valid point, though:  the probation department operates under the auspices of the court, not the executive branch.  An earlier case is pending before the Supreme Court, so they'll have the last word on it.

It's not all grins and giggles, though.  There are many cases where the verdicts are inconsistent - the defendant is convicted of felonious assault with a deadly weapon, a gun, but acquitted of the firearms specification - and there are just as many cases saying there's no problem with that.  But the jury in State v. Howard takes that a bit too far:  they convict him of felonious assault, acquit him of the one-year spec, but convict him of the three-year spec.  The judge decides the jury lost its way, and tosses the three-year spec.  That cleans up the damage, at least as far as the panel is concerned.

But Howard makes another argument.  He had a co-defendant, whose case had been severed.  He wanted to call her to testify in his trial, but she indicated she'd take the 5th.  After the trial, she worked out a deal on her case, then signed an affidavit exculpating Howard.  He presented this in his motion for new trial, claiming the affidavit was newly discovered evidence.

There is no dearth of cases on this issue, and most of them aren't helpful to Howard.  The majority view in the Federal courts is that newly-available evidence isn't the same thing as newly discovered evidence, and it's only the latter that triggers the right to a new trial. 

The defendant in State v. Norris comes a cropper, too.  He decides to shoot someone, points the gun and pulls the trigger, and is chagrined to find that the gun jams.  The victim uses this opportunity to attempt to flee, but Norris clears the weapon and chases the victim through some back yards before killing him.  He's convicted of murder and felonious assault, and argues that they should merge.  Sorry, says the panel:  there's a temporal gap here which creates a separate animus.  Pointing the gun was the felonious assault, chasing the victim down and killing him was the murder.  Two separate offenses.

The biggest loss for defendants, though, comes in State v. Dove, where the court upholds the use of 404(B) evidence in a child sex abuse case.  We'll talk about that one tomorrow.

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