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What's Up in the 8th

Cases on pre-indictment delay are still popping up with some regularity.  Which reminds me, there's still nothing going on with State v. Jones.  You'll remember that was the en banc decision on pre-indictment delay last year.  It got reversed by the Supreme Court in July because it applied the wrong test, but the 8th was instructed to apply the right test on reconsideration.  I was the lawyer on the case, and I immediately filed a motion for supplemental briefing, certain that the court would be entranced with my arguments on the subject.

Since then, nothing.  There's a very slim possibility that any 8th District judges are reading this, and it's certainly not intended as a hint or anything.  If perhaps a solitary judge has stumbled across this blog, I should mention that I have absolutely nothing else to do except sit around waiting for the green light to write my opus on Jones.  Think of it as relieving me from the tedium of my existence.

Except write about State v. Smith, a cold case rape allegedly committed in 2006.  Actually, even without the benefit of my penetrating insights, the court has done a pretty good job of analyzing these cases, and does so here.  Smith has to show actual prejudice before we get to the question of the reasons for the delay (and the latter seems a bit iffy), and all Smith claims is that if the crime had been prosecuted promptly, there were "possibly" unidentified witnesses that could've been present at the trial, and that Smith "perhaps" could have been interviewed and provided evidence of a consensual sexual encounter. 

Well, if things had gone differently I "might" be the Pope right now, but that's not going to cut it with the cardinals, and Smith's argument doesn't cut it here.  "Actual prejudice" doesn't mean "anything an attorney's mind can possibly come up with."

There's an argument about manifest weight, too, but this was a bench trial, and if you're going to write a manifest weight argument from a bench trial, you should go out and buy a lottery ticket, because you've got a better shot at that hitting.

The good news, though, is that Logan lives.  As I've mentioned, the Supreme Court's muddied the waters on allied offenses in its most recent decision, and I'd wondered if that would affect the determination of whether kidnapping and rape merged.  But in State v. Logan back in 1979, the Supreme Court held that the two offenses were allied unless the kidnapping involved some asportation of the victim from the scene, or posed a greater threat of harm, and the court finds neither of those occurred here.

If you need any further evidence of how screwed up the law on post-release control is, ladies and gentlemen, I present you with the case of State v. Cowan, where Cowan's sentence is vacated and remanded so that the judge can properly impose post-release control.

Which was also the outcome in Cowan's previous five appeals. 

Jamal Dye's explanation of why there's a photo in his cell phone of him carrying a gun undoubtedly says something about society:  he didn't even own the gun, but took the photographs of him with the weapon so that he "could post them on the social media to boost his image and to impress women."  Don't know how many women he impressed, but he certainly impressed the twelve jurors who convicted him of murder.

State v. Dye also reminds us of an important lesson.  During voir dire, one of the jurors confessed that her son-in-law was in law enforcement, and that if the evidence was "not totally clear" to her, she would "probably tend to believe the police officer" over the defendant.  Dye claims that the juror should have been removed for cause, instead of him having to expend a peremptory on her.  Well, that might be a good argument, or it might not, but the defense didn't exhaust all their peremptories.  And our lesson for today is that if you don't exhaust all you're peremptories, you waive any challenge to cause.

Speaking of juries, the defense attorney in State v. Pratts learns that several jurors changed their mind and voted to convict his client after they saw pictures of drugs on his cellphone, which was admitted into evidence.  Problems abound:  for whatever reason, the lawyer didn't object to the introduction of the cellphone, and the jurors found the damning picture while rummaging through the phone's contents.  The bigger problem is that the attorney has nothing to back up what the jurors said, and under EvidR 606, you need outside evidence -- something other than what jurors say -- to impeach a jury's verdict.

In State v. Hurth, the defendant gets maxed out on a felony three domestic violence, and soon after files a post-sentence motion to vacate the plea, asserting that he thought he was going to get probation.  There may be something to that; the trial court indicated on the record at sentencing that in previous discussions of the potential sentence with lawyers, she wasn't aware that Hurth had ten prior convictions for violent offenses.  But motions to vacate pleas after sentencing are granted only to prevent a manifest injustice, and there's nothing manifestly unjust about putting a guy who has ten prior convictions for violent crimes in prison.


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