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What's Up in the 8th

Just last week I lamented the futility of a Batson challenge, so the 8th slaps me this week with State v. Saunders, in which it reverses a case with a Batson challenge.  So instead I get to talk about the futility of opposing a flight instruction, the futility of asserting self-defense, and the futility of new trial motions.

Helluva week.

Let's start with the good news, and the main lesson Saunders teaches is to be aggressive in raising Batson challenges.  In last week's decision in State v. Murray, the prosecutor had excused two black jurors before defense counsel objected to striking the third.  To be sure, that was understandable; the first was a noted criminal defense attorney.

But still.  It's no secret to any criminal law practitioner that race is one of the defining markers in jury selection.  Blacks tend to be more suspicious of the police, more distrustful of authority, and more sympathetic to defendants, the majority of which are black.  Defense lawyers want blacks on the jury, and prosecutors don't.

So the first time a prosecutor strikes a black juror, object.  Sure, it may be baseless, and it may trigger the "cry wolf" syndrome and cause you to lose credibility in future challenges, but I'm betting that whatever risk there is of that is more than counterbalanced by the prosecutor's future unwillingness to go up to the bench and explain why he just kicked another black off the jury.

And you might also have a judge who thinks that you have to show a pattern of strikes in order to raise a Batson challenge, which is what happened in Saunders.  You don't.  The prosecutor doesn't get a freebee.  The judge there shut down the challenge without asking the prosecutor for a race-neutral explanation, and you can't do that.

There's baby mama drama and now there's apparently baby grandma drama.  In Cleveland v. Reese, the court doesn't disclose the ages of the participants to an assault, but does relate that the defendant, accused of macing her neighbor, claimed to have done so in defense of her 78-year-old boyfriend.  She's convicted after a bench trial, and sentenced to not mace her neighbor anymore, but appeals, claiming that the judge erred by not allowing the boyfriend to testify about whether the defendant was in fear.  Ohio follows a subjective standard:  if the defendant subjectively believed she was in danger, that satisfies that element of self-defense.  For that reason, the panel decides, the question to the boyfriend - "did you believe Sheila was in danger?" - was objectionable. 

Let's look at that.  Yes, the test is subjective, but that doesn't mean there's no objective component to it.  I can't shoot somebody because I felt threatened by their picking up a fork and spoon to eat their spaghetti.  If the defendant's subjective fear isn't objectively reasonable, the jury's unlikely to buy it.

All probative evidence is relevant.  Evidence is probative if it makes a fact more probable than not.   The boyfriend's testimony certainly isn't conclusive, but objective observations by the boyfriend that the defendant's actions and demeanor showed she was in fear certainly makes it more probable that she subjectively was. 

The court cites State v. Warmus for the proposition that the test is a subjective one, but Warmus actually undercuts the panel's decision.  In Warmus, the defendant shot a parking lot attendant after a scuffle, which was witnessed by numerous others in the lot.  Several of them were allowed to testify that Warmus wasn't in danger at the time he shot, or that he could have retreated.  The court upheld the admission, noting that the test is actually a "combined subjective and objective" one - the defendant must have an honest belief that he is in danger, but that belief has to be reasonable - and that the opinion testimony of the lay witnesses was helpful to the jury on that score.

My unnumbered hordes of readers know that I've championed the idea that the flight instruction is too promiscuously given, and should be limited to situations where the defendant takes active steps to avoid the police, like moving to a different county or state.   The 8th has indeed seemed to adopt that position in about seven or eight cases, and last week's decision in State v. Halstead follows in their wake.  And just like in the previous cases, the panel decides it's harmless error.

On reflection, that's probably the right call.  The instruction is so vague and murky that it's hard to see how it would ever be the turning point in a trial.  So I guess I'll have to come up with some new crusade.

I'll start tomorrow with new trial motions.


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