What's up in the 8th
Although there are only a handful of cases dismissed each year for speedy trial violations, few things so occupy the minds of judges as the possibility of such an event befalling them. The suggestion that all publicity is good publicity is of little comfort to the judge who goes out to fetch his morning paper and finds his name prominently mentioned in the story above the fold about how Slasher McGee is now a free man, his 43 rape charges dismissed because said judge didn't see to it that McGee was brought to trial within the specified time.
The speedy trial time is tolled for the period of any continuance requested by the defendant, and so the bailiffs here have developed a simple practice: every pretrial will be journalized, and the entry will include the statement that it was continued to the next date "at defendant's request." I once had a pretrial date postponed because a water main break shut down the Justice Center. My client was nonplussed to find that the entry indicated that he was responsible for the continuance.
The defendant in last week's decision in State v. Hitchcock argues that he never in fact consented to his lawyer's asking for any continuances. Like that matters, shrugs the court, citing the long line of cases holding that the lawyer can waive his client's speedy trial rights without the client's consent. Interestingly, though, I've seen in some of my recent appeals a pro se filing by the client stating explicitly that he doesn't consent to any continuances, and demands the earliest possible trial date. I almost raised that issue once, but time wouldn't have run anyway. It will come up sooner or later, and it's an interesting question. It's one thing to say that the lawyer can do something without his client's consent; it's another to say that he can do it over his client's specific objection.
Several other decisions present issues no more problematic than Hitchcock. The police in State v. Bray find several guns in the defendant's bedroom; as a felon, he's not supposed to have any. They belong to his wife, but Bray belatedly learns about the concept of constructive possession. I can think of several reasons not to let your wife have guns; now Bray can think of at least one. And in State v. Coleman, the court reiterates its holding in State v. Pettegrew that seeing people hanging around a car, or even into a car, without observing a hand-to-hand transaction isn't sufficient to warrant a Terry stop.
More contentious issues emerge in two other cases. In State v. Petriashvili, police investigating an attempted abduction have tracked the car and license plate number to a house, where a woman admits them. Petriashvili is sitting on his bed in his bedroom, the police standing in the doorway, when they ask him if he was driving the car that day, and was he only one who drove it. This elicits an affirmative reply, and Petriashvili is arrested. The trial judge tosses it for a Miranda violation, but the court reverses, holding that Petriashvili wasn't in custody, and therefore no warnings were required. Judge Kilbane notes that the custodial issue depends upon whether Petriashvili felt he was free to leave; that, in turn, involves factual issues like the number of police officers, their position, their tone, and so forth. Kilbane argues compellingly that the court should have deferred to the trial judge's factual findings on all this.
While Petriashvili's result is questionable, the court clearly gets it wrong in State v. Hudson. Hudson had killed a man in Cleveland, and Federal agents had tracked him down in Florida. During the cross-examination of the Federal agent, he acknowledged that Hudson had been with another woman when he was found, but the agent refused to answer when asked more specific questions about the woman and her identity, claiming the information was "privileged." (Translation: she was an informant.) Turns out there's a portion of the Code of Federal Regulations which deals with disclosure of privileged information by agents, and prescribes a procedure whereby the person requesting the information is supposed to file an affidavit with the Department of Justice asking for it. Hudson's lawyers didn't do that, the court holds, and thus waived any claim of violation of his right to confront witnesses.
The problem? The procedure only applies if you're the one who's calling the agent as a witness. That should be obvious; how would you know in advance that the agent was going to claim the privilege?
The outcome of the case is somewhat maintainable on grounds that even if the cross-examination would have been permitted, the relevance of any answers is questionable. Apparently, the defense was exploring this to head off a jury instruction on allowing an inference of defendant's guilt from the fact of his flight. The court is on more solid ground when it claims that questions about the woman wouldn't have shed any light on that issue. That position is buttressed by the court's subsequent holding, with regard to the flight instruction: basically, if you kill someone in Cleveland, and they find you in Florida, the judge doesn't abuse his discretion in giving an instruction on flight.
One further note about Coleman and Pettegrew. Sharp readers -- and do I have any other kind? -- will remember that the State filed a motion for reconsideration in Pettegrew, citing my blog post expressing mild criticism of the decision. (My take on the motion for recon here.) As I mentioned at the time, the choice to bring me into the discussion was apparently motivated by the delusion that the court would find significant what I had to say. It's an error that I assume the prosecutor's office will not repeat.
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