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Shabazz gets DIG'd

"Dodging a bullet" might not be the most appropriate metaphor to describe a defendant getting a break in a murder case, but Derrell Shabazz dodged a big one last week.

Several months ago, I wrote a brief on an aggravated murder case where I explained that the defendant's obtaining a gun could have been for self-protection, as opposed to, say, pumping two bullets into his wife.  The two were going to a bar, and as I put it in the brief, "Even assuming that it was a gun Hicks retrieved from the car, the more likely explanation is that he wanted it for protection:  as this court's decisions sadly attest, bar shootings seem as much a staple of Cleveland life as the ineptitude of its football team."

Pretty clever, huh? 

I followed it with a string cite to five cases involving bar shootings, which I pulled up in about two minutes by plugging "(bar or tavern) and murder and court(Cuyahoga)" into my Main Homie LEXIS.

Pretty clever, huh? 

The first case I cited to was Shabazz.  

Long story short, Shabazz and his friends Walker and Johnson went to a bar, somebody spilled a drink on somebody else, and then things went all to hell.  The trio got into a fight with a couple guys named Anderson and Shannon.  At various points Shabazz punched each of them in the face, and then Walker walked behind a pillar, pulled a gun, and shot Shannon in the back.  He died on the way to the hospital.

Both Shabazz and Walker were convicted of aggravated murder, and Walker's appeal hit the 8th District first.  He won, sort of:  the court held that there was insufficient evidence of prior calculation and design, and remanded the case for resentencing for murder.

Shabazz won big, though, the court by a 2-1 vote not only finding the evidence insufficient for aggravated murder, but for murder, two counts of felonious assault, and one of weapons under disability, leaving him with a two-year sentence for one felonious assault and a resentencing on another.

Obviously, Walker guided Shabazz in the resolution of the aggravated murder charge, but how did Shabazz get out from under the murder charge?  The majority relied on the Supreme Court's decision a few months earlier in Rosemond v. USRosemond had gone to a drug deal that went sideways:  instead of paying for the drugs, the buyer punched Rosemond's cohort in the fact, grabbed the drugs, and ran.  The cohort pulled out a gun and got off a couple of shots, and he and Rosemond wound up being prosecuted under a Federal statute which adds ten years to the sentence of anyone using or carrying a gun during a drug trafficking crime.

Rosemond argued that he was entitled to a jury instruction that the government had to prove that he had some foreknowledge his confederate was carrying a gun.  The Court agreed, relying on common-law principles of mens rea: "a person actively participates in a criminal venture with full knowledge of the circumstances constituting the charged offense."

And that's what got Shabazz off the hook:  the court found there was no evidence that he was aware that Walker had a gun, up until the moment the shot was fired.

The State appealed both Walker and Shabazz, and the Supreme accepted both, deciding to hold Walker until Shabazz was resolved.  Nine months ago, the court held oral argument in Shabazz.  I thought the big issue was going to be the application of Rosemond, but that goes to show what I know, despite being such a clever guy.  None of the justices wanted to talk about Rosemond, the oral argument instead centering on the appellate court's right to consider inferences in reviewing for insufficiency of the evidence.  And it didn't look good.

As I said, Shabazz dodged a bullet:  last week, the Supreme Court decided, by a 4-3 vote, to dismiss the appeal as having been improvidently granted.  They also announced they were lifting the hold on Walker, and to allow it to proceed to briefing and argument.

Shabazz isn't completely out of the woods.  In the past couple of years, the 8th District has reversed half a dozen aggravated murder cases, finding that the evidence was insufficient to show prior calculation and design.  (My bar shooting case was one of them.  Pretty clever, huh?)  The county prosecutor's office has worked itself into a lather over this, and the ink wasn't even dry on the Shabazz opinion when the State filed a motion for reconsideration, chronicling the purported travesties the 8th District has recently perpetrated in those aggravated murder cases.

I'm not sure that will work; for a variety of reasons, including the Rosemond issue, Shabazz wasn't the best case for the prosecutors on the facts.  Walker is a much better one, and I think that might be part of the court's reason for dismissing Shabazz.  We'll see how that turns out.

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