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What's Up in the 8th - Catching Up

We lawyers are a nasty lot, it seems, at least from the filings in the 8th District.  In State v. Norton, the defendant files an application to reopen the appeal, claiming that "appellate counsel omitted a dead-bang winner."  Gosh, I hate when I do that.  I mean, forgetting to make an assignment of error that's a winner is bad enough, but a dead-bang winner?  Those don't come around too often.  Unfortunately, Norton chooses not to share with the panel precisely what the dead-bang winner was, so his application becomes a dead-bang loser.

The defendant in State v. Ladson goes a different route, filing a motion to withdraw the plea, contending that his lawyer "tricked" him into pleading guilty to felonious assault five years earlier.  No chicanery was involved in State v. Congress; the attorney's failure there was that he didn't advise Congress "of all the ramifications of his plea" to murder.  They have as much luck as did Norton.  

Ladson and Congress are troubling in one respect, though; in addition to dispensing with the claims on the merits, the panels find that the claims are barred by res judicata, because they could've been raised on appeal.  Well, no, they couldn't:  both required consideration of facts which wouldn't have been contained in the record.

In State v. Hardman, the defendant decides to forego a later attack on his attorney by dispensing with one:  on the third day of trial, he announces that he wants to represent himself.  This should've been easy; there's loads of case law which says that a defendant's request for self-representation must be timely, and where the defendant waits until trial - let alone the third day of one - to assert his right, the judge has the discretion to refuse it.  Not so here; the judge grants it, but that leads to a reversal.  Although the trial judge told Hardman about the possibility of standby counsel, he didn't ask whether he wanted one, and told Hardman that standby counsel wouldn't assist him in complying "with the applicable legal requirements, rules of evidence, and rules of procedure," which is precisely what standby counsel does.  (After granting Hardman the right to represent himself, the judge excused his lawyer, who left.)  What probably had more to do with the result was that the judge wouldn't grant Hardman a continuance to review the discovery he'd just been given, instead requiring him to continue with the cross-examination of a key witness.

Oh, one more thing:  we learn that where the defendant fails to make a Rule 29 motion, it doesn't really matter as far as asserting a claim for insufficient evidence.  Failure to make a motion doesn't waive the claim, it simply requires it to be reviewed for plain error.  And if the defendant is convicted on legally insufficient evidence, that's going to meet the "manifest injustice" requirement for plain error every time.  Oh, and one more thing:  that only applies in a jury trial.  In a bench trial, the not guilty plea preserves the argument as to insufficiency.

The law on joinder is very bad for defendants, and it doesn't get any better in State v. Echols.  Echols was charged with two rapes, one in 1994 and the other five years later.  The judge denied the motion for separate trials, finding no prejudice other than "human nature," and that the jury would be "presumed to follow" his instructions to treat them separately.  The panel agrees, concluding that joinder was unnecessary because the evidence of each crime was "simple and direct."

I'm sure it was, given that there wouldn't be any overlap in events occurring five years apart.  But jury confusion isn't the issue:  prejudice is.  "Human nature" was indeed the key here; if you don't believe the fact that Echols was on trial for two rapes made it more likely the jury would convict him of both, you don't understand human nature.

The case law generally holds that joinder isn't required where the crimes are intertwined (for example, several robberies conducted over a short period of time), or where evidence of one crime would be admissible under EvidR 404(B) in the trial of the other.  Beyond that, severance should be allowed, especially where the crimes are similar.  Joinder is preferred because of "judicial economy," but that's not present here, either:  the witnesses for each crime would be different, and the only time you'd save would be in the selection of the jury.  That's not a sufficient reason for exposing the defendant to a higher likelihood of conviction.

Finally, we learn something about forfeiture in Beachwood v. Reed.  Reed responds to an ad in Backpage.com for half hour of prostitute's services for $100.  Of course, it's a police sting operation, and Reed shows up with marijuana, two condoms, and $1,200.  After he's found guilty at trial, the judge orders city to file a forfeiture request for the $1,200 within 14 days.  They file it on the 15th day, the judge grants it, but the panel reverses.  Forfeiture request has to be included in the complaint or indictment, unless property was "not reasonably foreseen to be subject to forfeiture" at the time, and prosecutor gives prompt notice of intent to file forfeiture upon discovering that it is.  Meanwhile, anybody who comes to a $100 meet with a prostitute with $1200 in his pocket is either wildly optimistic or should have his money taken away. 

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