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What's Up in the 8th

For a while there, the 8th District had developed a record of tossing out aggravated murder convictions for insufficient evidence of prior calculation and design.  There were about six of them in a two-year span, sufficient to produce a level of controlled rage in the appellate division of the prosecutor's office; they appealed every one, each memo in support of jurisdiction enumerating the other cases as proof that the 8th had gone rogue.

Last week's decision in State v. George shows those days might be over.  The State's evidence indicated that George and a compatriot went into a convenient store, came out and started walking away, when the victim and his son pulled into the parking lot.  George and the other man turned, took shooting positions, and fired numerous shots at both the son and father, killing the latter.

That would certainly suffice for premeditation, which requires only a moment's reflection.  You can certainly make an argument that that's not sufficient for prior calculation, but it's like that from here on out that's an argument you're going to win at trial, not on appeal.  It appears that the court's determination was based on the cold-blooded nature of the killing; there is case law that an execution style killing does demonstrate prior calculation and design.

Which leads to one of the more memorable lines in an opinion:  the killers are described as "two fully armed marauders with their body cavities full to the brim with lethal venom."  Can't wait to see how they handle that in the movie version.

State v. Smith is the first case on pre-indictment delay since the Supreme Court's decision this summer in State v. Jones.  The question left over from Jones is what constitutes "actual prejudice" resulting from the delay.  The dissent in the 8th District's en banc decision, as well as other cases from the 8th and just about every other district, had used the standard employed by Federal courts:  to show prejudice, the missing evidence must be "concrete, specific, non-speculative, and exculpatory"; in Jones, that meant showing what a dead witness would have testified to.

The Supreme Court rejected that formulation, but the fact-specific nature of the inquiry doesn't lend a lot of room to bright-line rules.  If there were one, George would fall far short of it.  He complains that he has "very limited memory" of the events - the rape occurred in 1995 - but the law is clear that the statute of limitations provides the primary defense against faded memories.  George also points to the missing 911 calls and EMS run, but offers not a clue as to how they would have benefited the defense.

The panel finds that even if there was evidence of prejudice, the State's reason for the delay was justifiable, the second step in the analysis for pre-indictment delay.  Unlike Jones, this was a stranger rape; George's identity wasn't determined until the rape kit was matched to a DNA sample years later.  That also seems to be a common theme in these cases:  dismissal for pre-indictment delay is much more likely if the police identified the perpetrator at the time of the crime, but simply dropped the ball in prosecuting him.

But I'm not sure that a stranger rape means that any delay was justifiable.  As everybody knows by now, thousands of rape kits sat in police evidence rooms gathering dust for well over a decade until they were sent out for testing.  Was that "justifiable"?  That would depend on when George's DNA standard hit the CODIS database.  Let's say, for example, that George was convicted of a felony in 2013, and that produced the standard which BCI matched up the following year.  Tough to claim that any prejudice would have inured during that year.  The result might be different if George's earlier conviction, and the collection of his DNA, had occurred in 2000.

State v. Higgins presents a classic Terry situation; in fact, it's virtually identical to the one in Terry.  The cops observe three men casing a gun shop:  standing around it, walking in, walking back out, looking around, and all the while one of them is cupping a gun in his hand.  And then...  they leave in a car.

The police conduct an investigatory stop, and wind up arresting the trio.  The question here is whether there was reasonable suspicion of criminal activity to justify the stop.

At first blush, it seems that any criminal activity ended when the three left.  Even assuming that they intended to rob the store, their efforts probably didn't rise to the level of an attempt, and that terminated with their departure.  But remember that part about cupping the gun in the hand?  That's concealment, which could lead to a CCW charge or one of improperly handling a firearm in a motor vehicle.  Higgins argues that the police didn't know whether he had a concealed carry permit, but if you're thinking the law requires them to check that out before they arrest someone for a gun offense, get somebody to wake you up, you live in a different world than the rest of us.

In State v. Taylor, Taylor complains that the record "clearly and convincingly" demonstrates that the trial court shouldn't have given him eight years in consecutive sentences on two drug cases.  He points to his lack of any prior criminal history, his extensive charitable contributions, and his work on a cure for cancer.

Well, no, he doesn't.  In fact, he's been down to prison five previous times for drug trafficking, so that's pretty much that.

Taylor's other grievance is that the judge called him a "monster" during sentencing, and we come to learn, somewhat disconcertingly, that there's actually a body of case law on judges doing that.  As in other cases, the panel harrumphs that judges should use more temperate language, which should have as much effect as wishing for world peace, and affirms.

Well, at least the judge didn't say anything about Taylor's body cavities.

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